R. v. Oickle

R. v. Oickle
Collection
Supreme Court Judgments
Date
2000-09-29
Neutral citation
2000 SCC 38
Report
[2000] 2 SCR 3
Case number
26535
Judges
L'Heureux-Dubé, Claire; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil; Arbour, Louise
On appeal from
Nova Scotia
Subjects
Criminal law
Notes
SCC Case Information: 26535
Decision Content
R. v. Oickle, [2000] 2 S.C.R. 3
Her Majesty The Queen Appellant
v.
Richard Floyd Oickle Respondent
and
The Attorney General for Ontario and
the Criminal Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. Oickle
Neutral citation: 2000 SCC 38.
File No.: 26535.
1999: November 2; 2000 September 29.
Present: L’Heureux‑Dubé, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour JJ.
on appeal from the court of appeal for nova scotia
Criminal law — Evidence — Admissibility — Confessions — Voluntariness — Common law limits on police interrogation — Proper scope of confessions rule — Police informing arson suspect that he had “failed” polygraph test — Suspect subsequently confessing to arson during skillful and lengthy interrogation — Whether police improperly induced suspect’s confession.
Criminal law — Evidence — Confessions — Voluntariness — Polygraph — Police informing arson suspect that he had “failed” polygraph test — Suspect subsequently confessing to arson during skillful and lengthy interrogation — Whether police’s failure to tell suspect that polygraph results inadmissible producing involuntary confession — Whether misleading of suspect concerning accuracy of polygraph rendered confession involuntary — Whether polygraph creating oppressive atmosphere — Whether tactical disadvantage to defence when suspect confessed following polygraph test relevant to voluntariness of confession.
Criminal law — Appeal — Court of Appeal — Standard of appellate review — Voluntariness of confessions — Court of Appeal disagreeing with trial judge as to weight to be given various pieces of evidence — Whether disagreement grounds to reverse trial judge’s finding on voluntariness of confession.
During the police investigation of a series of eight fires, the accused agreed to submit to a polygraph. The test took place in a motel and the police audiotaped the events. The accused was informed of his rights to silence, to counsel, and to leave at any time. He was also informed that while the interpretation of the polygraph results was not admissible, anything he said was admissible. At the conclusion of the test, around 5 p.m., the officer conducting the test informed the accused that he had failed it. The accused was reminded of his rights and questioned for one hour. At 6:30 p.m., a second officer questioned the accused and, after 30 to 40 minutes, the accused confessed to setting the fire to his fiancée’s car and provided the police with a statement. He appeared emotionally distraught at this time. The accused was arrested and warned of his rights. At the police station, he was placed in an interview room equipped with videotaping facilities where he was questioned about the other fires. Around 8:30 p.m. and 9:15 p.m., the accused indicated that he was tired and wanted to go home. He was informed that he was under arrest and he could call a lawyer but that he could not go home. A third officer took over the interrogation at 9:52 p.m. He questioned the accused until about 11:00 p.m., at which time the accused confessed to setting seven of the eight fires. The accused was then seen crying with his head in his hands. The police then took a written statement from the accused. He was placed in a cell to sleep at 2:45 a.m. At 6:00 a.m., a police officer noticed that the accused was awake and asked whether he would agree to a re‑enactment. On the tape of the re‑enactment, the accused was informed of his rights and was advised that he could stop the re‑enactment at any time. The police drove the accused to the various fire scenes, where he described how he had set each fire. The accused was charged with seven counts of arson. The trial judge ruled on a voir dire that the accused’s statements, including the video re‑enactment, were voluntary and admissible, and subsequently convicted him on all counts. The Court of Appeal excluded the confessions and entered an acquittal.
Held (Arbour J. dissenting): The appeal should be allowed and the conviction restored.
Per L’Heureux‑Dubé, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.: The confessions rule focuses not just on reliability but also on voluntariness broadly defined. The common law confessions rule can offer protections beyond those guaranteed by the Canadian Charter of Rights and Freedoms . While it may be appropriate in certain cases to interpret one in light of the other, it would be a mistake to assume one subsumes the other entirely. In defining the confessions rule it is important to keep in mind its twin goals of protecting the rights of the accused without unduly limiting society’s need to investigate and solve crimes.
The application of the confessions rule is of necessity contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession. When reviewing a confession, a trial judge should therefore consider all the relevant factors. The judge should strive to understand the circumstances surrounding the confession and ask if it gives rise to a reasonable doubt as to the confession’s voluntariness, taking into account all the aspects of the rule. The relevant factors include threats or promises, oppression, the operating mind requirement and police trickery. While obviously imminent threats of torture will render a confession inadmissible, most cases will not be so clear. The use of veiled threats, for instance, requires close examination. The police may often offer some kind of inducement to the suspect to obtain a confession. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about the voluntariness of the confession. An important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise. Oppressive conditions and circumstances clearly also have the potential to produce an involuntary confession. In assessing oppression, courts should consider whether a suspect was deprived of food, clothing, water, sleep, or medical attention; was denied access to counsel; was confronted with fabricated evidence; or was questioned aggressively for a prolonged period of time. The operating mind doctrine only requires that the accused knows what he is saying and that it may be used to his detriment. Like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule. The operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible. Lastly, the police use of trickery to obtain a confession must also be considered in determining whether a confession is voluntary or not. This doctrine is a distinct inquiry. While it is still related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system. There may be situations in which police trickery, though neither violating the right to silence nor undermining voluntariness per se, is so appalling as to shock the community. In such cases, the confessions should be excluded.
In sum, because of the criminal justice system’s overriding concern not to convict the innocent, a confession will not be admissible if it is made under circumstances that raise a reasonable doubt as to voluntariness. Voluntariness is the touchstone of the confessions rule and a useful term to describe the various rationales underlying the rule. If the police interrogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate together to exclude confessions. If the trial judge properly considers all the relevant circumstances, then a finding regarding voluntariness is essentially a factual one, and should only be overturned for some palpable and overriding error which affected the trial judge’s assessment of the facts.
In this case, the Court of Appeal applied the wrong standard of appellate review. Determining whether or not a confession is voluntary is a question of fact, or of mixed law and fact. Therefore, a disagreement with the trial judge regarding the weight to be given various pieces of evidence is not grounds to reverse a finding on voluntariness. The Court of Appeal also reached the wrong conclusion with regard to voluntariness. The police conducted a proper interrogation. The accused was fully apprised of his rights at all times. The police questioning, while persistent and often accusatorial, was never hostile, aggressive, or intimidating. In this context, the alleged inducements offered by the police do not raise a reasonable doubt as to the confession’s voluntariness.
In particular, the police did not improperly offer leniency to the accused by minimizing the seriousness of his offences. While the police did minimize the moral significance of the crimes, they never suggested that a confession would minimize the legal consequences of the accused’s crimes. As for the offers of psychiatric help, at no point did the police ever suggest that the accused could only get help if he confessed. There was never any insinuation of a quid pro quo. The police did suggest that confession would make the accused feel better, that his fiancée and members of the community would respect him for admitting his problem, and that he could better address his apparent pyromania if he confessed. However, read in context, none of these statements contained an implied threat or promise. As to the alleged threats against the accused’s fiancée, there were moments when the police intimated that it might be necessary to question her to make sure she was not involved in the fires. The relationship the accused had with his fiancée was strong enough potentially to induce a false confession were she threatened with harm. However, no such threat ever occurred. The most they did was promise not to polygraph her if the accused confessed. Given the entire context, the most likely reason to polygraph her was not as a suspect, but as an alibi witness. This is not a strong enough inducement to raise a reasonable doubt as to the voluntariness of the accused’s confession. The timing of the comments regarding his fiancée suggests that there was no causal connection between the police inducements and the subsequent confession. The police did not improperly abuse the accused’s trust to obtain a confession. The Court of Appeal criticized the police for questioning the accused in such a gentle, reassuring manner that they gained his trust. This does not render a confession inadmissible. Lastly, to hold that the police conduct in this interrogation was oppressive would leave little scope for police interrogation. They were always courteous; they did not deprive the accused of food, sleep, or water; they never denied him access to the bathroom; they fully apprised him of his rights at all times, and they did not fabricate evidence. While the re‑enactment was admittedly done at a time when the accused had had little sleep, he was already awake when they approached him, and was told that he could stop at any time.
The mere failure to tell a suspect that the polygraph is inadmissible will not automatically produce an involuntary confession. Courts should engage in a two‑step process. First, the confession should be excluded if the police deception shocks the community. Second, even if not rising to that level, the use of deception is a relevant factor in the overall voluntariness analysis. Here, the police made it abundantly clear to the accused just what was admissible and what was not. The accused was not confused on this point. Further, although the police exaggerated the accuracy of the polygraph, merely confronting a suspect with adverse evidence ‑‑ even exaggerating its accuracy and reliability ‑‑ will not, standing alone, render a confession involuntary. Finally, tactical disadvantage to the defence when a suspect confesses following a polygraph is not relevant to the voluntariness of the confession; instead, if anything, it simply suggests prejudicial effect. However, given the immense probative value of a voluntary confession, exclusion is inappropriate.
Per Arbour J. (dissenting): There were improper inducements held out by police officers who interrogated the accused and these inducements, considered cumulatively and contextually in light of the “failed” polygraph test, require the exclusion of the accused’s statements. Moreover, the proximity and the causal connection between the “failed” polygraph test and the confession also compels this result. While some deference is always required because of the privileged position from which the trial judge assesses credibility, including on a voir dire, appeal courts must ensure that the question of the voluntariness of a confession was correctly decided by the trial judge, in accordance with the applicable law, and on a reasonable view of the facts.
The statements were obtained as a result of fear of prejudice or hope of advantage held out by persons in authority. Repeated threats and promises were made. They were often subtle, but against the backdrop of the polygraph procedure, they overwhelmed the free will of the accused. The overall interrogation strategy was sound, and although it relied on considerable deception on the part of the police, that in itself is neither illegal nor sufficient to vitiate the voluntary nature of a confession. The line is crossed when, as here, improper inducements are put forward by persons in authority in an oppressive atmosphere, undermining the interrogated person’s control over his mind and will. First, the promise of psychiatric help was improper. While it is true that the police did not explicitly tell the accused that the only way he could get psychiatric help was if he confessed, this was the clear implication of what was said. Second, after the accused’s initial confession, the police minimized the seriousness of the additional legal consequences that would flow from a confession to all the fires, suggesting to the accused that it made no difference whether he had set one or ten fires and that if he confessed, the other fires could be bundled with the car fire. This was clearly improper. Third, the threat to interrogate the accused’s fiancée clearly suggested that the accused could spare her his predicament by admitting his sole involvement in all the fires. The relationship between her and the accused was such that the threats to implicate her placed impermissible pressure on the accused to confess. The foregoing representations constituted threats, promises and inducements within the meaning of the confessions rule and, when combined with the prevalent ambiguity concerning just what was and was not admissible in court against the accused, as well as the oppressive atmosphere created by the “infallible” polygraph test, they are sufficient to raise a reasonable doubt as to voluntariness of the accused’s confessions. The combination of the lies and misrepresentations, which are not impermissible, with the inducements, which are, caused the accused to make involuntary admissions. At the very least, the trial judge had to have a reasonable doubt about the application of the classic voluntariness rule.
In addition, the statements are inadmissible on the basis that the manner in which they were obtained by the police places the accused in the unfair position of having to lead prejudicial, unreliable and inadmissible evidence against himself in order to impeach the veracity of the statements obtained. The admission into evidence of a confession, given in circumstances where it is intimately linked to a “failed” polygraph test, as it was in this case, is wholly inconsistent with the holding of this Court in Béland and severely, and unjustifiably, prejudices an accused’s fair trial interests. Since the confession and the polygraph are so intimately linked, the accused will unavoidably have to reveal having failed the polygraph if he wishes to cast doubt on the truthfulness of his confession. This comes at too high a cost to the accused’s fair trial interests. He is forced to incriminate himself by introducing an otherwise inadmissible piece of evidence which cannot help but strengthen what is often the sole evidence against him. Given the unparalleled weight attributed to confessions, the prejudicial effect that flows from an accused’s reference to his “failed” polygraph test is overwhelming. Therefore, confessions should be excluded where, as here, the accused, because of the intimate causal and temporal connection between a “failed” polygraph and a subsequent confession, is unable to demonstrate fully the impact of the circumstances surrounding its making without inevitably introducing the polygraph evidence.
Cases Cited
By Iacobucci J.
Applied: R. v. Ewert, [1992] 3 S.C.R. 161; Ward v. The Queen, [1979] 2 S.C.R. 30; R. v. Fitton, [1956] S.C.R. 958; R. v. Murakami, [1951] S.C.R. 801; referred to: R. v. Nugent (1988), 84 N.S.R. (2d) 191; R. v. Hebert, [1990] 2 S.C.R. 151; Ibrahim v. The King, [1914] A.C. 599; Prosko v. The King (1922), 63 S.C.R. 226; Boudreau v. The King, [1949] S.C.R. 262; R. v. Wray, [1971] S.C.R. 272; Rothman v. The Queen, [1981] 1 S.C.R. 640; Horvath v. The Queen, [1979] 2 S.C.R. 376; R. v. Whittle, [1994] 2 S.C.R. 914; Hobbins v. The Queen, [1982] 1 S.C.R. 553; R. v. Liew, [1999] 3 S.C.R. 227; R. v. Broyles, [1991] 3 S.C.R. 595; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Precourt (1976), 18 O.R. (2d) 714; R. v. Mills, [1999] 3 S.C.R. 668; R. v. Leipert, [1997] 1 S.C.R. 281; Reilly v. State, 355 A.2d 324 (1976); R. v. Kalashnikoff (1981), 57 C.C.C. (2d) 481; R. v. Lazure (1959), 126 C.C.C. 331; R. v. Ewert (1991), 68 C.C.C. (3d) 207; R. v. Jackson (1977), 34 C.C.C. (2d) 35; Commissioners of Customs and Excise v. Harz, [1967] 1 A.C. 760; R. v. Smith, [1959] 2 Q.B. 35; R. v. Desmeules, [1971] R.L. 505; Comeau v. The Queen (1961), 131 C.C.C. 139; R. v. Hanlon (1958), 28 C.R. 398; R. v. Puffer (1976), 31 C.C.C. (2d) 81, aff’d [1980] 1 S.C.R. 321 (sub nom. McFall v. The Queen); R. v. Hayes (1982), 65 C.C.C. (2d) 294; R. v. Rennie (1981), 74 Cr. App. R. 207; R. v. Hoilett (1999), 136 C.C.C. (3d) 449; R. v. Owen (1983), 4 C.C.C. (3d) 538; R. v. Serack, [1974] 2 W.W.R. 377; R. v. Clot (1982), 69 C.C.C. (2d) 349; Blackburn v. Alabama, 361 U.S. 199 (1960); Schwartz v. Canada, [1996] 1 S.C.R. 254; Stein v. The Ship “Kathy K”, [1976] 2 S.C.R. 802; R. v. James, Ont. Ct. (Gen. Div.), January 25, 1991; R. v. Ollerhead (1990), 86 Nfld. & P.E.I.R. 38; R. v. Fowler (1979), 23 Nfld. & P.E.I.R. 255; R. v. Alexis (1994), 35 C.R. (4th) 117; R. v. Béland, [1987] 2 S.C.R. 398; R. v. Amyot (1990), 58 C.C.C. (3d) 312; R. v. Romansky (1981), 6 Man. R. (2d) 408; R. v. Barton (1993), 81 C.C.C. (3d) 574.
By Arbour J. (dissenting)
R. v. Fitton, [1956] S.C.R. 958; R. v. Middleton (1974), 59 Cr. App. R. 18; R. v. Béland, [1987] 2 S.C.R. 398; Phillion v. The Queen, [1978] 1 S.C.R. 18; R. v. Marquard, [1993] 4 S.C.R. 223; R. v. Mohan, [1994] 2 S.C.R. 9; R. v. Amyot (1990), 58 C.C.C. (3d) 312; R. v. L.E.W., [1996] O.J. No. 753 (QL); DeClercq v. The Queen, [1968] S.C.R. 902; R. v. Murray, [1951] 1 K.B. 391; R. v. Charrette, [1994] O.J. No. 2509 (QL); R. v. Whalen, [1999] O.J. No. 3488 (QL); Bigaouette v. The King (1926), 46 C.C.C. 311; R. v. Hodgson, [1998] 2 S.C.R. 449; R. v. Warickshall (1783), 1 Leach 263, 168 E.R. 234; R. v. Hardy (1794), 24 St. Tr. 199; R. v. Baldry (1852), 2 Den. 430, 169 E.R. 568; R. v. Guidice, [1964] W.A.R. 128; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Thorne (1988), 41 C.C.C. (3d) 344; R. v. McIntosh (1999), 141 C.C.C. (3d) 97; R. v. Terceira (1998), 123 C.C.C. (3d) 1, aff’d [1999] 3 S.C.R. 866; R. v. Nugent (1988), 84 N.S.R. (2d) 191.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 7 to 14 , 10 , 14 , 24(2) .
Police and Criminal Evidence Act 1984 (U.K.), 1984, c. 60, s. 76(8).
Authors Cited
Bedau, Hugo Adam, and Michael L. Radelet. “Miscarriages of Justice in Potentially Capital Cases” (1987), 40 Stan. L. Rev. 21.
Furedy, John J. “The ‘control’ question ‘test’ (CQT) polygrapher’s dilemma: logico‑ethical considerations for psychophysiological practitioners and researchers” (1993), 15 Int. J. Psychophysiology 263.
Furedy, John J., and John Liss. “Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses” (1986), 29 Crim. L.Q. 91.
Gudjonsson, Gisli H., and James A. C. MacKeith. “A Proven Case of False Confession: Psychological Aspects of the Coerced‑Compliant Type” (1990), 30 Med. Sci. & L. 329.
Gudjonsson, Gisli H., and James A. C. MacKeith. “Retracted Confessions: Legal, Psychological and Psychiatric Aspects” (1988), 28 Med. Sci. & L. 187.
Kassin, Saul M., and Lawrence S. Wrightsman. “Coerced Confessions, Judicial Instructions, and Mock Juror Verdicts” (1981), 11 J. Applied Soc. Psychol. 489.
Kaufman, Fred. The Admissibility of Confessions, 3rd ed. Toronto: Carswell, 1979.
Lykken, David T. A Tremor in the Blood: Uses and Abuses of the Lie Detector. New York: Plenum Trade, 1998.
Marin, René J. Admissibility of Statements, 9th ed. Aurora, Ont.: Canada Law Book, 1996 (loose‑leaf updated January 2000, release 4).
Ofshe, Richard J., and Richard A. Leo. “The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation” (1998), 88 J. Crim. L. & Criminology 429.
Ofshe, Richard J., and Richard A. Leo. “The Decision to Confess Falsely: Rational Choice and Irrational Action” (1997), 74 Denv. U. L. Rev. 979.
Ofshe, Richard J., and Richard A. Leo. “The Social Psychology of Police Interrogation: The Theory and Classification of True and False Confessions” (1997), 16 Stud. L. Pol. & Soc. 189.
Patrick, Christopher J., and William G. Iacono. “Validity of the Control Polygraph Test: The Problem of Sampling Bias” (1991), 76 J. App. Psych. 229.
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada, 2nd ed. Toronto: Butterworths, 1999.
White,Welsh S. “False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions” (1997), 32 Harv. C.R.–C.L. L. Rev. 105.
Wigmore, John Henry. Evidence in Trials at Common Law, vol. 3. Revised by James H. Chadbourn. Boston: Little, Brown, 1970.
APPEAL from a judgment of the Nova Scotia Court of Appeal (1998), 16 C.R. (5th) 29, 164 N.S.R. (2d) 342, 491 A.P.R. 342, 122 C.C.C. (3d) 506, [1998] N.S.J. No. 19 (QL), allowing the accused’s appeal, setting aside the convictions and entering acquittals. Appeal allowed, Arbour J. dissenting.
William D. Delaney, for the appellant.
Arthur J. Mollon, Q.C., and Marian Mancini, for the respondent.
Gary T. Trotter, for the intervener the Attorney General for Ontario.
Michael Code and John Norris, for the intervener the Criminal Lawyers’ Association (Ontario).
The judgment of L’Heureux-Dubé, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ. was delivered by
Iacobucci J. –
I. Introduction
1 This appeal requires this Court to rule on the common law limits on police interrogation. Specifically, we are asked to decide whether the police improperly induced the respondent’s confessions through threats or promises, an atmosphere of oppression, or any other tactics that could raise a reasonable doubt as to the voluntariness of his confessions. I conclude that they did not. The trial judge’s determination that the confessions at stake in this appeal were voluntarily given should not have been disturbed on appeal, and accordingly the appeal should be allowed.
2 In this case, the police conducted a proper interrogation. Their questioning, while persistent and often accusatorial, was never hostile, aggressive, or intimidating. They repeatedly offered the accused food and drink. They allowed him to use the bathroom upon request. Before his first confession and subsequent arrest, they repeatedly told him that he could leave at any time. In this context, the alleged inducements offered by the police do not raise a reasonable doubt as to the confessions’ voluntariness. Nor do I find any fault with the role played by the polygraph test in this case. While the police admittedly exaggerated the reliability of such devices, the tactic of inflating the reliability of incriminating evidence is a common, and generally unobjectionable one. Whether standing alone, or in combination with the other mild inducements used in this appeal, it does not render the confessions involuntary.
II. Facts
3 The facts surrounding the respondent’s interrogation are obviously central to the resolution of this appeal, and I will refer to them throughout my legal analysis. At this point, I will simply give an overview.
4 Between February 5, 1994 and April 4, 1995, a series of eight fires involving four buildings and two motor vehicles occurred in and around the community of Waterville, Nova Scotia. Most of the incidents occurred between 1:00 a.m. and 4:00 a.m. The vehicle fires involved a van belonging to the respondent’s father, and a car belonging to the respondent’s fiancée, Tanya Kilcup. The building fires occurred relatively close to where the respondent had lived when the various fires occurred. The fires appeared to have been deliberately set, with the possible exception of Ms. Kilcup’s vehicle. The respondent was a member of the Waterville Volunteer Fire Brigade, and had responded to each of the fires in that capacity.
5 The last fire involved Ms. Kilcup’s vehicle. The car was parked in the driveway of the apartment building where the respondent and Ms. Kilcup lived. The fire was discovered by a passerby who extinguished it. The Fire Marshall investigated the fire and concluded that since the car was subject to a prior recall for a possible faulty ignition switch, the fire may have been accidental owing to an electrical fault.
6 The police also conducted an extensive investigation of the fires. To help narrow the list of possible suspects, they asked a total of seven or eight individuals to submit to polygraph tests. Five or six individuals did so, passed the test, and were effectively removed from the list of suspects. Another person had agreed to take a polygraph, but was not examined after the respondent confessed to the crimes. The respondent, after initial doubts, agreed to submit to a test. Around 3:00 p.m. on April 26, 1995, the respondent went to the Wandlyn Motel for the test, according to a prior arrangement. The police audiotaped the events at the motel. Sergeant Taker administered the polygraph test. The respondent was fully advised of his rights to silence, to a lawyer (including the availability of Legal Aid), and to leave at any time. Sergeant Taker also advised him that while Sergeant Taker’s interpretation of the polygraph results was not admissible, anything said by the respondent was admissible. The respondent was given a pamphlet to review, which discussed the polygraph procedures, and he signed a consent form.
7 Before conducting the test itself, Sergeant Taker conducted a lengthy “pre-test” interview, which involved a variety of questions, many of them personal in nature. This interview was designed to provide a basis for the polygraph test itself, to help Sergeant Taker compose “control questions” for the polygraph exam, and to foster a sense of intimacy between examiner and subject. An exculpatory statement, which formed the basis for the polygraph test itself, was taken at the conclusion of the pre-test. Sergeant Taker then conducted the polygraph exam, which lasted only a matter of minutes. During the test Sergeant Taker did not ask about any specific fire, but instead asked if the respondent’s earlier statement had been truthful. At the conclusion of the test, around 5:00 p.m., Taker checked the charts and informed the respondent that he had failed the test. He reminded the respondent that his rights were still in effect, and proceeded to question him for approximately one hour. At one point the respondent asked “What if I admit to the car? ... Then I can walk out of here and it’s over.” Though Sergeant Taker replied “You can walk out at any time”, the respondent did not leave.
8 At 6:30 p.m. Sergeant Taker was relieved by Corporal Deveau, who reminded the respondent of his right to counsel. After 30 to 40 minutes, the respondent confessed to setting fire to his fiancée’s car. He appeared emotionally distraught at this time. After a recitation of his rights, and an acknowledgement that he understood them, the police took a written statement, in which he continued to deny any involvement in the other fires. The respondent was arrested, warned of his right to counsel, given the secondary police warning, and driven to the police station at 8:15 p.m. En route he was very upset and was crying. He was placed in an interview room equipped with videotaping facilities, which recorded the subsequent interrogation where Corporal Deveau questioned him about the other fires. Around 8:30 p.m. and 9:15 p.m. the respondent indicated that he was tired, and wanted to go home to bed. He was informed that he was under arrest, and he could call a lawyer if he wanted, but that he could not go home. Questioning did not cease.
9 Constable Bogle took over the interrogation at 9:52 p.m., after giving the respondent the secondary police warning. Constable Bogle questioned the respondent until about 11:00 p.m., at which time the respondent confessed to setting seven of the eight fires. He denied any involvement in the fire in his father’s van. At this time, Constable Bogle left the room, and the respondent was seen crying with his head in his hands. Constable Bogle returned with Corporal Deveau, and took a written statement. The respondent’s Charter rights and the police warning were on the statement, and were acknowledged by the respondent. The police warning stated that “[y]ou need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat whether or not you do say anything. Anything you do say may be used as evidence.” The statement concluded at 1:10 a.m. on April 27. After the police attended to various administrative tasks, the respondent was placed in a cell to sleep at 2:45 a.m. At 6:00 a.m., Corporal Deveau noticed that the respondent was awake and asked whether he would agree to a re-enactment. On the tape of the re-enactment, the respondent was given a Charter warning, the secondary warning, and was advised that he could stop the re-enactment at any time. The police drove the respondent around Waterville to the various fire scenes, where he described how he had set each fire. The respondent was charged with seven counts of arson.
10 At trial, the trial judge held a voir dire to determine the admissibility of the respondent’s statements, including the video re-enactment. The trial judge ruled that the statements were voluntary and admissible, and subsequently convicted him on all counts. However, the Nova Scotia Court of Appeal found that the statements were involuntary and thus inadmissible, and allowed the respondent’s appeal. The Court of Appeal excluded the confessions, overturned the convictions, and entered acquittals.
III. Judicial Decisions
A. Nova Scotia Provincial Court
11 MacDonald Prov. Ct. J. concluded that the respondent’s confessions were voluntary. First of all, there was no evidence that the respondent did not understand the police warnings. After reviewing the law, the trial judge concluded that the respondent had an operating mind, and was aware of the consequences of his actions. The respondent “appeared to be coherent, capable of understanding the questions that were put to him and to be in complete and total control of his faculties”. Nor did the police unfairly deprive the respondent of his right to choose whether or not he wished to speak to the officers.
12 The trial judge also addressed the relevance of the polygraph test under the Nova Scotia Supreme Court – Appeal Division’s decision in R. v. Nugent (1988), 84 N.S.R. (2d) 191. MacDonald Prov. Ct. J. found that the respondent clearly understood that while the results were not admissible, his statements were. There being no confusion over the role of the polygraph, MacDonald Prov. Ct. J. concluded that the use of a polygraph did not render the ensuing confessions involuntary or otherwise inadmissible.
13 Finally, the trial judge addressed the respondent’s argument that the re-enactment was not voluntary because he was sleep-deprived at the time. The trial judge noted that the respondent appeared in full control of his faculties on the tape of the re-enactment. He was coherent. He understood what was being asked of him. There was no evidence to suggest that the re-enactments were anything but voluntary. MacDonald Prov. Ct. J. therefore admitted the statements and re-enactment into evidence.
B. Nova Scotia Court of Appeal (1998), 164 N.S.R. (2d) 342 (Pugsley and Cromwell
JJ.A., Flinn J.A. concurring)
14 Pugsley and Cromwell JJ.A. recognized that their role as an appellate court was not to retry the case or overturn the trial judge’s findings of fact. The decision of the trial judge should not be set aside unless she made a wrong assessment of the evidence, failed to consider the relevant circumstances, or failed to apply the correct legal principle.
15 The court first addressed the admissibility of the respondent’s initial confession to lighting the fire in Ms. Kilcup’s car. Confessions will only be admissible if the Crown proves, beyond a reasonable doubt, that they were made voluntarily. A statement will be involuntary if it is the result of either “fear of prejudice” or “hope of advantage” held out by persons in authority. Vigorous and skillful questioning, misstatements of fact by the police, and appeals to the conscience of the accused do not necessarily make a resulting statement inadmissible. The statement will not be excluded simply because the accused believes it will be to his or her advantage to confess. It is only when this belief is induced or confirmed by persons in authority that the statements should be excluded.
16 Turning to the facts of this case, the court found that the police did not advise the respondent that the results of the polygraph were not admissible as evidence. Sergeant Taker should also have advised the respondent that the polygraph was not infallible. The accused’s ensuing confusion about the significance of his failure of the test was an important aspect of the overall context that had to be considered in deciding whether the statements were voluntary.
17 Against the backdrop of the polygraph examination, the police questioning developed other themes that, in light of all the other circumstances, constituted improper inducements to confess. While any one of these might not be sufficient to produce doubt about the voluntariness of the statements, their cumulative effect was overwhelming. Shortly after the polygraph results were given to the respondent, Sergeant Taker suggested that confessing would prevent him from getting into any more trouble than he was already in, and that confessing would allow him to get the help he needed if he had done these things. The police also minimized the seriousness of the offence, and warned that they might have to interrogate Ms. Kilcup. These actions, where they result in a confession, are improper inducements.
18 Another factor was the police’s abuse of their relationship with the respondent. After gaining the respondent’s trust, Sergeant Taker and Corporal Deveau breached that trust by unfairly and aggressively exploiting the results of the test as a confession-inducing instrument. Immediately before the first confession, Deveau said to the respondent that he was probably his “best friend right now”. This statement was an abuse of confidence.
19 The court also disagreed with the trial judge’s conclusion that the respondent appeared coherent and in control of his faculties on the videotape. The court felt that the transcript of the audiotape revealed that the respondent did not appreciate the role the equipment played in the process, and the separate role played by Sergeant Taker in his role as interpreter of the result. The conclusions of the trial judge failed to take into account several comments of Sergeant Taker wherein he assured the respondent that the polygraph machine was reliable.
20 Although none of the inducements on their own would require exclusion, taken cumulatively and in light of the use of the polygraph test, the statements were clearly involuntary and should have been excluded.
21 The court allowed the appeal. Since the statements were the only evidence that directly implicated the respondent, and without them, no reasonable trier of fact could convict, the convictions were set aside and acquittals entered.
IV. Analysis
A. Standard of Review for Voluntariness
22 While determining the appropriate legal test is of course a question of law, applying this test to determine whether or not a confession is voluntary is a question of fact, or of mixed law and fact. See R. v. Ewert, [1992] 3 S.C.R. 161, at p. 161; Ward v. The Queen, [1979] 2 S.C.R. 30, at p. 42 (per Spence J.); R. v. Fitton, [1956] S.C.R. 958, at pp. 983-84 (per Fauteux J.); R. v. Murakami, [1951] S.C.R. 801, at p. 803 (per Rand J., Locke J. concurring). Therefore, as this Court held in Ewert, a disagreement with the trial judge regarding the weight to be given various pieces of evidence is not grounds to reverse a finding on voluntariness. Respectfully, I believe that the Court of Appeal did just that. Therefore, following Ewert, the appeal must be allowed.
23 While the foregoing might suffice technically to dispose of this appeal, I believe it is important to take this opportunity to set out the proper scope of the confessions rule. There was much argument among the parties and interveners in this appeal on this point, and this Court has not directly addressed the issue since the introduction of the Canadian Charter of Rights and Freedoms . Because of this lack of clarity, it has been often difficult to discern in various cases what standards have been applied. In addition, several arguments not addressed by the trial judge were raised before our Court. It is therefore necessary to broaden the discussion to deal with these issues.
B. The Development of the Confessions Rule
1. Two Elements of the Rule
24 As indicated by McLachlin J. (as she then was), in R. v. Hebert, [1990] 2 S.C.R. 151, there are two main strands to this Court’s jurisprudence under the confessions rule. One approach is narrow, excluding statements only where the police held out explicit threats or promises to the accused. The definitive statement of this approach came in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609:
It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority.
This Court adopted the “Ibrahim rule” in Prosko v. The King