When the police interrogate an average citizen, it can be an overwhelming experience. Police use a multitude of tactics to elicit confessions from those they believe are guilty of a crime. However, should you ever find yourself in a situation where the police are probing you to confess to having committed a crime you had nothing to do with – here’s what you need to know:

“At common law, all statements made to a “person in authority” must be proven to be voluntary before it may be admissible. This is known as the “confessions rule“. This finding must be made through a voir dire without a jury on a standard of proof beyond a reasonable doubt.

The primary purpose of the common law confessions rule to ensure the reliability of confessions. The use of interrogation techniques present a risk that a person will confess falsely. The rule is also to protect the right against self-crimination and ensure fairness.

The voluntariness of a statement is determined by considering the following factors:

  • Threats or promises
  • Oppression
  • Operating mind
  • Police trickery

The application of the confessions rule is contextual and requires taking into account all the circumstances.

The degree of each factor present will be taken into account. For example, a low level inducement may vitiate voluntariness where the level of oppression from lack of sleep may be high.

The test for right to silence and voluntariness are functionally equivalent. A voluntary statement cannot violate the right to silence.

A statement made to a person in authority is not inadmissible solely because the officer failed to give the proper cautions. This failure may be a factor in the voluntariness analysis, but admissibility rests solely on the question of voluntariness.

There is no rule requiring that police officers seek the consent to record the dialogue of any witness or accused that they chose to interview.

Voluntariness must be proven when the statement is being admitted for the purpose of establishing an officer’s reasonable suspicion to permit a screening demand.

Voluntariness need not be proven where the statement is being tendered for voice identification.

Questions of ultimate truth, falsity and reliability of the statement are not to be determined in a voir dire on voluntariness. Instead, that is for the trial judge to determine after hearing the entirety of the trial evidence.

Non-Investigative Exception
Where the police ask questions and obtain information from the accused regarding their name, address, and phone number while booking the accused, there is no requirement for proving voluntariness and no voir dire is needed.

Cross-examination of a Co-accused Exception
Defense counsel may use a prior statement to cross examine a co-accused who incriminates the accused even where the statement is not voluntary.

Criminal Offence Exception
When the statement itself is the offence, such as in an obstruction charge, uttering threats, etc., then there is no need to prove voluntariness of the statement.

Origin
The voluntariness rule derives its origin from the Ibrahim rule from the English common law, which excludes statements only where the police held out explicit threats or promises to the accused.”

If you feel as if the police have used unfair interrogation tactics to elicit a false confession from you, contact CBLAW today so we can get started on ensuring your case is handled properly and the record of your innocence is set straight!

Conact us here: https://www.cblaw.ca/schedule-a-call