Rothman v. The Queen

Rothman v. The Queen
Collection
Supreme Court Judgments
Date
1981-03-02
Report
[1981] 1 SCR 640
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
Ontario
Subjects
Criminal law
Decision Content
Supreme Court of Canada
Rothman v. R., [1981] 1 S.C.R. 640
Date: 1981-03-02
Robert Rothman (Plaintiff) Appellant;
and
Her Majesty The Queen (Defendant) Respondent.
1980: May 5; 1981: March 2.
Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, Mclntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR ONTARIO.
Criminal law—Admissibility of confession—Whether disguised police officer a “person in authority”—Whether confession voluntary—Voir dire.
The appellant was charged with possession of cannabis resin for the purpose of trafficking. The issue before the Court concerns the admissibility of a confession which the Crown sought to put in evidence at trial. The appellant was arrested, given a police warning and prior to being lodged in a cell, was asked if he would give a statement, and he declined to do so. Hours later, a constable acting in an undercover capacity was placed in the same cell in order to obtain information from the appellant. He did not identify himself as a police officer and the appellant did not appear to recognize him as such. The officer told the appellant he was a truck driver, detained for a traffic violation. During a conversation the appellant made a statement to the officer which the Crown attempted to introduce in evidence.
After a voir dire, the trial judge ruled that in the circumstances the undercover policeman was a “person in authority”, that the statement had been improperly elicited, and was therefore inadmissible.
A majority of the Court of Appeal disagreed with the trial judge and ordered a new trial.
Held (Laskin C.J. and Estey J. dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Dickson, Beetz, Mclntyre and Chouinard JJ.: This case should be decided in the context of the special rules which have evolved in respect of evidence which has been obtained by way of a confession. The principle applicable is that no statement made by an accused person to a person in authority is admissible in evidence against him unless it is shown 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. The first issue is whether the constable was a “person in authority”. Both parties agreed that the test to be applied is a subjective test, i.e. did the appellant, when he made his statement, believe that the constable was a person in authority. There is no evidence whatever that the appellant believed the constable to be a person in authority. The confession is therefore in the same position as if it had been made to someone other than a police officer and it was an error of law to refuse to receive it. The privilege against self incrimination is not relevant in the circumstances of this case, for there was no attempt by anyone to compel the appellant to make the disclosure which he did make.
The second issue is whether the confession, even on the assumption that the constable was a person in authority, was voluntary. Confessions can be excluded, although there had been no fear of prejudice or hope of advantage held out by a person in authority, where there exists a reasonable doubt as to whether the confession in question was “the utterance of an operating mind”. There is no allegation here that the mind of the accused was affected by the actions of the police officer. His statement was made freely and it was volunteered by him.
Per Lamer J.: The confession rule is predicated upon a rule of law and one of prudence: the right for an accused not to be compelled as a witness at his trial, and the protection of the criminal justice system.
The rules regarding the admissibility of statements by an accused to persons in authority may be enunciated in the following manner:
1. A statement is inadmissible unless the judge is satisfied beyond a reasonable doubt that nothing said or done by any person in authority could have induced the accused to make a statement which was or might be untrue;
2. A statement, though elicited under circumstances which would not render it inadmissible, shall nevertheless be excluded if its use in the proceedings would, as a result of what was said or done by any person in authority in eliciting the statement, bring the administration of justice into disrepute.
That second portion of the rule is not a true discretion. There first must be a clear connection between the obtaining of the statement and the conduct; furthermore that conduct must be so shocking as to justify the judicial branch of the criminal justice system in feeling that, short of disassociating itself from such conduct through rejection of the statement, its reputation and, as a result, that of the whole criminal justice system, would be brought into disrepute. The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes for necessity resort to tricks or other means of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community. But pretending, as in this case, to be a truck driver to secure the conviction of a trafficker would not shock the community.
Per Laskin C.J. and Estey J., dissenting: The basic reason for the exclusionary confession rule is a concern for the integrity of the criminal justice system. The support and respect of the community for that system can only be maintained if persons in authority conduct themselves in a way that does not bring the administration of justice into disrepute. In the realm of confessions, this standard of conduct is reflected in the requirement that an accused’s statement be given “voluntarily”.
Where the speaker has, as here, already refused to give a statement to the authorities, the test of voluntariness must include an appreciation of the circumstances in which the statement is made, including an awareness that his statement is being “volunteered” to a person in authority. To apply the rule otherwise in a case such as this one would not merely permit but would encourage the deliberate circumvention by the authority of the accused’s announced exercise of his right not to give a statement to the authorities. Here the accused had taken the position he did not wish to give a statement to the police. The police then, by a ruse, subverted that wish and thus the accused made his statement after he thought he had established that he was not, in fact, talking to a person in authority. Such a determined subversion by the police of an expressed right to refuse to make any statement brings the administration of justice into disrepute. Accordingly, such a statement given in these circumstances cannot get over the hurdle of the exclusionary rule.
[Ibrahim v. The King, [1914] A.C. 599; Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958, revising [1956] O.R. 696; Marcoux and Solomon v. The Queen, [1976] 1 S.C.R. 763; Piché v. The Queen, [1971] S.C.R. 23; Ward v. The Queen, [1979] 2 S.C.R. 30; Horvath v. The Queen, [1979] 2 S.C.R. 376; Nagotcha v. The Queen, [1980] 1 S.C.R. 714; Alward and Mooney v. The Queen, [1978] 1 S.C.R. 559; R. v. McLeod (1968), 5 C.R.N.S. 101]
APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing the appeal by the Crown from an acquittal and ordering a new trial. Appeal dismissed, Laskin C.J. and Estey J. dissenting.
Scott T. Milloy, for the appellant.
E.G. Ewaschuk, Q.C., and J.A. Pethes, for the respondent.
The reasons of Laskin C.J. and Estey J. were delivered by
ESTEY J. (dissenting)—I have had the benefit of reading judgments proposed by my colleagues Martland and Lamer JJ. but for reasons which I will attempt to set out shortly, I have, with respect, reached the opposite conclusion and therefore I would propose that the appeal be allowed, the order of the Court of Appeal set aside and the acquittal in the trial court restored. The facts having been set out by my colleagues, I can largely confine my remarks to an explanation of how I have reached the conclusion I propose.
This appeal raises a question as to the admissibility of a statement made by an accused to a person in authority. The statement was obtained in circumstances outlined in the statement of facts in the appellant’s factum to which the respondent agreed:
3. The Respondent [accused] was given a police warning and was then conveyed to the Ottawa City Police Station at 60 Waller Street along with Bonner and Hrehoriak. Prior to being lodged in a cell, Constable Gervais asked the Respondent if he was willing to give a statement but he declined to do so. The Respondent was later removed from the cell, charged with possession of hashish for the purposes of trafficking and returned to the same cell.
On the next day the police obtained a statement and again the circumstances in which it was obtained are described in the appellant’s statement of facts, accepted by the respondent:
4. On November 10, 1976 at approximately 1:00 a.m., Constable McKnight, a member of the Ottawa City Police Force acting in an undercover capacity, was placed in an 8’ x 8’ cell at the Ottawa City Police Station occupied by the Respondent alone. Constable McKnight was placed in the cell on the instructions of Constable Gervais, the investigating officer, in order to obtain information from the Respondent concern- ing the charge against him. …At that time, Constable McKnight was unarmed, wore blue jeans, a blue jacket and brown boots, and had a four or five day growth of beard.
5. Upon entering the cell, the Respondent spoke first to Constable McKnight by saying that Constable McKnight “looked like a nark”. Constable McKnight just laughed and the Respondent continued that he looked like a nark because of the way he was dressed. Constable McKnight explained that he was dressed like that because he had been fishing. The Respondent then asked Constable McKnight why he was in jail and he replied that it was because of a traffic ticket. During the conversation, Constable McKnight informed the Respondent that he was a truck driver from the Pembroke area and had been fishing so the Respondent would have the impression that he was not a nark and that he did not know much about drugs. Constable McKnight indicated that people in the Pembroke area were interested in drugs and that he would be interested in getting drugs; however, no deal was set up. The Respondent asked Constable McKnight when he would be getting out and he replied that a buddy would be coming down to pay the fine…
Therefore, it is not in dispute that the accused was unaware that he was speaking to an undercover policeman and that the policeman had deceived the accused by making false statements concerning his identity, including a denial that he was a police officer. In the result, the statement was given by the accused after his arrest, and after he had been given a warning by the police and had refused to give any statement to the police. In the face of this express election in the presence of a uniformed policeman by the accused to remain silent, the police then employed a trick and lies to obtain the statement now in issue. There is no question that when the accused announced his unwillingness to give a statement, he was aware that he was communicating his decision to remain silent to a person in authority, namely a police officer. The question is, therefore, whether or not a statement obtained thereafter by the police from the accused in these circumstances is admissible within the confession rules.
The terms “confession” and “admission” have caused considerable confusion in the law of evidence and in the criminal law generally for the past two centuries. We have not consistently defined “a confession” in precise terms nor has it been related to the other term “an admission”. Indeed the words are sometimes used interchangeably. Sometimes it would appear that a confession is but one species of an admission. Wigmore says that in earlier times a confession was:
…an acknowledgement in express words by the accused in a criminal case of the truth of the guilty fact charged or some essential part of it.
3 Wigmore, Evidence (1970), paragraph 821.
An admission is by that learned author defined as a statement “made out of court by a party‑opponent”: 4 Wigmore, supra, paragraph 1048. Some authors in earlier times went further and used “confession” to describe a statement which admits the guilt of the accused completely as charged and opined that anything short of that is included in the term “admission”. This of course led to considerable confusion as to the application of the strict admissibility rules as they developed for confessions. In those times a distinction was made in defining a confession between exculpatory and inculpatory statements. For our purposes this distinction came to an end in the statement of Hall J. in Pichê v. The Queen[2] at p. 36:
In my view the time is opportune for this Court to say that the admission in evidence of all statements made by an accused to persons in authority, whether inculpatory or exculpatory, is governed by the same rule and thus put to an end the continuing controversy and necessary evaluation by trial judges of every such statement which the Crown proposes to use in chief or on cross-examination as either being inculpatory or exculpatory.
The distinction between these terms, “confession” and “admission”, was also discussed in Commissioners of Customs and Excise v. Harz et al.[3] where Lord Reid, at pp. 817-8 stated:
Then it was argued that there is a difference between confessions and admissions which fall short of a full confession. A difference of that kind appears to be recognised in some other countries. In India and Ceylon legislative enactments severely limit the admissibility of confessions, and the courts have construed these enactments as not preventing the admission in evidence of other incriminating statements obtained by fair means though not in the manner required for confessions. And for some reason not made clear in argument some such distinction appears to be recognised at least in some states in the United States. But there appears to be no English case for more than a century in which an admission induced by a threat or promise has been admitted in evidence where a full confession would have been excluded. If such a case had occurred since appeal to the Court of Criminal Appeal became possible I find it very difficult to believe that there would not have been an appeal. I can see no justification in principle for the distinction. In similar circumstances one man induced by a threat makes a full confession and another induced by the same threat makes one or more incriminating admissions. Unless the law is to be reduced to a mere collection of unrelated rules, I see no distinction between these cases.
The learned authors of Phipson on Evidence (12th ed., 1976) state at paragraph 671:
In criminal cases statements made out of court by an accused are similarly admissible against him though they are subject to special conditions of admissibility if made to a person in authority, and are then usually called “confessions”.
Gradually, the law has developed so as to carve out of the general field of admissions those statements made by an accused to a person in authority; these are referred to as confessions and it is to these that special rules for admissibility at trial apply.
The rules of evidence in criminal law, and indeed in civil law, are all concerned with relevancy, reliability and fairness as well as other considerations such as the reasonable economy and efficiency of trial. The rules with reference to confessions have an additional element, namely the concern of the public for the integrity of the system of the administration of justice. If the reliability of an accused’s statements were the only consideration in determining their admissibility the courts would not have adopted distinctive principles applicable only to statements to persons in authority and not to statements against interest generally. Reliability cannot be the ticket for admission because statements may have enough of the appearance of reliability to ensure reference to the trier of fact but still have been excluded by the confession standard. In Piché, supra, the statement sought to be introduced by the Crown was one which was professedly false but which was sought to be introduced to contest the credibility of the accused. The statement was exculpatory in nature and the Crown was required to prove that such a prior inconsistent statement was voluntary. Cartwright C.J. stated at p. 26:
It appears to me to involve a strange method of reasoning to say that an involuntary statement harmful to the accused’s defence shall be excluded because of the danger of its being untrue but that a harmful involuntary statement, of which there is not merely a danger of its being false but which the prosecution asserts to be false, should be admitted merely because, considered in isolation, it is on its face exculpatory.
The matter is carried further in an earlier discussion in this Court in DeClercq v. The Queen[4] where Cartwright C.J., at p. 906, stated:
While the reason for the rule is said to be the danger that a confession, the making of which has been induced by threats or promises made by a person in authority, may well be untrue, it must now, I think, be regarded as settled that when an inquiry is held during the course of a trial as to the admissibility of an inculpatory statement sought to be introduced by the Crown, the question to be determined is whether or not the statement was voluntary and not whether or not it is true.
Martland J. added at p. 911:
…it is settled law that an inculpatory statement by an accused is not admissible against him unless it is voluntary, and. the inquiry on a voir dire is directed to that issue, and not to the truth of the statement…
Why then is the standard of ‘voluntariness’ and not ‘truth’ adopted by the law? Confessions have doubtless been suspect from the earliest times by those interested in the administration of justice. Torture and other forms of violence no doubt have brought about confessions, and the disallowance of their admissibility was perhaps one of the meas- ures adopted to eliminate these practices. Many reasons come to mind at once for the rejection of such statements: the statement may be untrue; the statement might be incomplete; and the obtaining of such a statement infringes the accused’s right to remain silent. It may be that the adoption and continuance of the confession rules are a deep-seated recognition by the courts of the need to apply, in the conduct of criminal trials, principles which will command the respect and hence the support of the public for the system of criminal justice. Certainly without such acceptance and support the system would not survive. Chief Justice Freedman discussed the presence of the exclusionary rule in our law in his learned article “Admissions and Confessions” reproduced in Salhany and Carter, Studies in Canadian Criminal Evidence, (1972), c. 4. He observed that the rejection of a confession brought about by threats and beatings would find its basis not in the rules concerning persons in authority but may arise out of “…discretionary power to consider the broad question of public policy in the administration of criminal justice”, (at p. 120). Earlier, at p. 99, the learned Chief Justice stated:
Undoubtedly, as already stated, the main reason for excluding them is the danger that they may be untrue. But there are other reasons, stoutly disclaimed by some judges, openly professed by others, and silently acknowledged by still others—the last perhaps being an instance of an “inarticulate major premise” playing its role in decision-making. These reasons, all of them, are rooted in history. They are touched with memories of torture and the rack, they are bound up with the cause of individual freedom, and they reflect a deep concern for the integrity of the judicial process.
See as well 8 Wigmore, Evidence, 3rd ed., paragraph 2251.
The roots of the confession rules have been examined by writers in the United States. In his text on Evidence of Guilt, (1959), Professor Maguire observed at p. 109:
[T]wo obvious reasons appear for caution in receiving evidence of confessions: First, and most commonly invoked, the fear that an “involuntary” confession of guilt may be untrue.
Second, determination to hold public authorities up to a humane and honourable standard of conduct in treatment of persons suspected or accused. While not at all inconsistent with the first reason, this second reason may operate entirely independently of any risk that a particular confession is tainted with untruth.
To similar effect see Allen, “Due Process and State Criminal Procedures: Another Look” (1953), 48 Nw.U.L. Rev. 16, at p. 19.
This Court was faced in Horvath v. The Queen[5], with the question of admissibility of a confession and in discussing the general nature of confessions in the law our brother Beetz J. stated (at p. 433):
Apart from the untrustworthiness of confessions extorted by threats or promises, other policy reasons have also been advanced to explain the rejection of confessions improperly obtained. But the basic reason is the accused’s absolute right to remain silent either completely or partially and not to incriminate himself unless he wants to. This is why it is important that the accused understand what is at stake in the procedure.
This additional consideration connotes a recognition by the courts since the earliest times of the desirability and indeed the necessity of adopting a system of principles in the administration of justice which will be accepted by and command the support of the community. Thus it can be said that confessions are not admissible where to admit them would bring the administration of justice into disrepute, or, to put it another way, would prejudice the public interest in the integrity of the judicial process.
All of this can be found in different shades and hues in the authorities, commencing with Ibrahim v. The King[6], which lays down the principle that to be admissible in a court of law, a statement by an accused must be voluntary, that is to say it must not have been induced by fear of prejudice or hope of advantage. The prescription that a confession to be admissible must be voluntary is not limited to the examples set out in Ibrahim, supra. In Horvath, supra, Spence J. held (at p. 402):
Although many courts seem to have done so, I do not regard such an authority as Ibrahim as indicating that the natural meaning of the word “voluntary” should be confined to cases of hope of advantage or fear of prejudice.
He continued (at pp. 409-10):
The requirement to establish the admissibility at trial of a statement made by an accused person to persons in authority has been oft cited as simply that it is free and voluntary. Those are both ordinary English words and I think mean roughly the same thing. The Shorter Oxford English Dictionary defines “voluntary” as “arising or developing in the mind without external constraint…; of actions: performed or done of one’s own free will, impulse, or choice; not constrained, prompted, or suggested by another”.
In the same case, Beetz J. noted (at p. 424):
The question arises as to whether the enumeration in the rule of instances of involuntariness is a limitative one.
It cannot be limitative since the rule is a judge-made rule and anything said by a judge beyond what is necessary to decide the issue is obiter. Furthermore, the principle which inspires the rule remains a positive one; it is the principle of voluntariness.
The principle itself, of course, requires (and this is an absolute requisite) that the statement in fact be made to a person in authority; and if this qualification is not met, then it matters not whether the person is known to the accused to be one in authority. This is because the principle adopted for the protection of the integrity of the administration of justice is founded upon the realization that persons in authority, instrumentalities of the State, must observe certain basic rules. This is so for the practical reason that their very authority might, by promise or threat, express or implied, produce a statement whether or not the accused was truly willing to speak, and on occasion might bring about statements which are in whole or in part untrue. It is also necessary to adopt these basic rules for the higher reason that ethical precepts are a vital ingredient in a system of justice if it is to command the respect and support of the community it serves, particularly in a judicial structure which embraces the concept of the jury. In this appeal the first encounter of significance was with a person in authority; that is, the authority to whom the accused communicated his decision or election not to give a statement. It is that incident which, in the circumstances here concerned, started the process which, in my view, leads to the exclusion of the statements thereafter obtained by the authorities.
The analysis need go but one step further. To be voluntary a statement must be volunteered by the speaker in the sense that the statement must be the product of a conscious volens on the part of the speaker. The volens must relate not only to the mechanics of speaking, that is the articulation of the ideas of the speaker. Where the speaker has, as here, already refused to give a statement to the authorities, the test of voluntariness must include an appreciation of the circumstances in which the statement is made, including an awareness that his statement is being ‘volunteered’ to a person in authority. To apply the rule otherwise in the circumstances we have here would not merely permit but would encourage the deliberate circumvention by the authority of the accused’s announced exercise of his right not to give a statement to the authorities. This idea is taken up by Rand J. in R. v. Fitton[7] at p. 963:
Even the word “voluntary” is open to question; in what case can it be said that the statement is not voluntary in the sense that it is the expression of a choice, that it is willed to be made? But it is the character of the influence of idea or feeling behind that act of willing and its source which the rule seizes upon. The matter is carried further by Spence J. speaking for the entire Court in Ward v. The Queen[8], at p. 40:
In my view, there is a further investigation of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found in consideration of the mental condition of the accused at the time he made the statements to determine whether or not the statements represented the operating mind of the accused.
If this latter element is not included, then the meaning of voluntariness is reduced to a concern for the simple articulation of the words of the statement by the accused speaker. I can find no authority for such an arbitrary and destructive reduction of the degree of voluntariness required by the basic principle illustrated by Ibrahim, supra, literally applied. Indeed, as I view the sequence of events here, the statement is properly excluded on the simple application of the principle revealed in Horvath and Ward, supra, to the facts of this case.
On the facts before us here the authority went to some pains to ensure that the accused, when making his statement, did not know it was being made to a person in authority. As I have observed, he had earlier refused to give a statement to the police. I do not go on and deal with any other set of facts, such as a situation where the accused ought to have known the hearer was a person in authority within the meaning of that term in the law, or had not earlier declined to give a statement. We are concerned here with the fact that the statement was made by a person under charge to a person in authority masquerading as something else, and after the hearer has explicitly disavowed any such status in order to allay the suspicions of an accused who had already expressed a desire not to make a statement to the police.
It is not necessary to trace the origin of the special rules applicable to statements by an accused to a person in authority. If indeed these rules emanate from a desire on the part of the courts and the community to adopt policies which will ensure a fair, impartial and reputable administration of justice, then we need proceed no further. On the other hand, it has been said that the principles surrounding the admissibility of a confession emanate from a right to silence on the part of the accused under our jurisprudence. The accused, of course, need not testify. He cannot be compelled to do so and his exercised right to silence may not be the subject of commentary by the Crown before the jury (Canada Evidence Act, R.S.C. 1970, c. E-10, s. 4(5)). On the other hand, if the accused elects, for whatever reason, to enter the witness box, he is on the same footing as any other witness. He may be cross-examined on anything deemed relevant by the court. By statutory intervention (s. 5(2) of the Canada Evidence Act, supra,) that which the accused says in the witness box may not be used against him in any other proceedings. But, of course, so far as the principal trial is concerned the section has no application. The right in the accused, in my view, to elect not to testify in the trial of a charge laid against him is one of the fundamental elements of our criminal jurisprudence ranking with the presumption of innocence and the onus on the Crown to establish guilt beyond a reasonable doubt according to law. His right to silence arises not because he is a witness but because he is an accused. Indeed, as Dickson J. said in Marcoux and Solomon v. The Queen[9] at p. 769, the accused has no such right with reference to any question deemed to be relevant by a court once he enters the witness box. Professor Glanville Williams, in The Proof of Guilt, (2nd ed., 1958), puts it this way (at pp. 37‑8):
According to the rule, neither the judge nor the prosecution is entitled at any stage to question the accused unless he chooses to give evidence. “At the common law,” says Blackstone, “nemo tenebatur prodere seipsum: and his fault was not [to] be wrung out of himself, but rather to be discovered by other means and other men.” This rule may be called the accused’s right not to be questioned; in America it is termed the privilege against self-incrimination. The latter expression is more apt as the name for another rule, the privilege of any witness to refuse to answer an incriminating question; this is different from the rule under discussion, which, applying only to persons accused of crime, prevents the question from being asked. The person charged with crime has not merely the liberty to refuse to answer a question incriminating himself; he is freed even from the embarrassment of being asked the question. The privilege against self-incrimination, as applied to witnesses generally, must be expressly claimed by the witness when the question is put to him in the box; whereas the accused’s freedom from being questioned prevents the prosecution from asking (much less compelling) him to enter the box, and from addressing questions to him in the dock. [Underlining added]
The question naturally follows: should the accused’s out-of-court statements be admissible in court on the same basis? That is, if made to a person in authority, must that statement be a voluntary statement (as earlier described), consciously made to that person in circumstances which make it evident that the accused intended it to be testimony in open court or to be capable of being put to such use; or under circumstances which will not bring the administration of justice into disrepute? This question as it arises here relates only to those statements made to and not merely in the presence of a person in authority, intended to be given to that particular person, made after an election to remain silent, and when made in the circumstances already described. It surely follows that if our law continues to recognize the right of an accused not to enter the witness box under compulsion, his indirect testimony in the form of out-of-court statements to a person in authority should not be admissible on a basis which, following his invocation of the right to silence, undermines or defeats the right not to testify. One author has put the idea this way:
…if there are reasons for not compelling an accused to testify at trial, those reasons should also be considered in relation to statements given prior to trial.
Ratushny, Self-incrimination in the Canadian Criminal Process, 1979, at p. 97.
By this process of reasoning one can readily reconcile the Ibrahim rule with the underlying purposes for the special treatment accorded to confessions, being the overriding interest in the acceptance by the community of the system for the administration of justice. Thus the admission of a statement which has been induced by a person in authority in such a way that it might be untrue is but one illustration of conduct that would bring the administration of justice into disrepute; and hence such a statement is inadmissible. This principle has its application in any circumstance, whether or not one might conclude that the statement might be true, where the effect of the conduct of a person in authority is to remove the basic element of ‘voluntariness’. In short, the possibility or likelihood of the truth or untruth of a statement is but one element in the process of determining the voluntary nature of the statement in the full sense accorded to that expression in the authorities. I find the observations of Lord Diplock in R. v. Sang[10] at p. 436 appropriate to the circumstances of this appeal:
My Lords, I propose to exclude, as the certified question does, detailed consideration of the role of the trial judge in relation to confessions and evidence obtained from the defendant after commission of the offence that is tantamount to a confession. It has a long history dating back to the days before the existence of a disciplined police force, when a prisoner on a charge of felony could not be represented by counsel and was not entitled to give evidence in his own defence either to deny that he had made the confession, which was generally oral, or to deny that its contents were true. The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer or in its popular English mistranslation “the right to silence.” That is why there is no discretion to exclude evidence discovered as the result of an illegal search but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.
Outside this limited field in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law.
The first determination to be made when the court is confronted with an out-of-court statement by this accused is whether his first statement, that is his refusal to talk to the police, was made to a person in authority. This act of the accused is an objective step and therefore depends not on the understanding of the accused alone but on the actual fact of the identity of the recipient of the statement. If the recipient be a person in authority as that term has been developed in the law, the next step is to determine, in all the circumstances which followed, whether the statement ultimately given (and which is tendered at trial) is voluntary in the full sense of that term. The elements which go into the determination of the voluntariness of that statement include all those circumstances which bear upon the overriding requirement that the admission of the statement will not render the administration of criminal justice unacceptable to the community. All this is in sharp contrast to the determination of the admissibility of a statement by an accused to a person not in authority. In that instance the presence or absence of threats, force, fear, hope, tricks, drugs, etc. go to weight and not to admissibility. It also calls for a different application of the principle than in the usual case where the accused has not, in prior confrontations with the authorities, declined to give a statement.
It has been said in considering the use of stratagems by persons in authority that
there appears to be at least some tendency [in Canadian courts] to consider the use of such tactics as one of the factors bearing on voluntariness.
“Developments in the Law—Confessions” (1966), 79 Harv. L. Rev. 935, at p. 1104. This is so in my view if the term “voluntariness” is there used in the full sense in which I have here used the term.
Davey C.J.B.C., in R. v. Frank[11], examines the status of statements procured or induced by lies told by the person in authority to the accused. In the end the Chief Justice found that their effect on “voluntariness” is measured according to whether or not the circumstances produced in the accused a hope of advantage or a fear of prejudice. In R. v. McLeod[12], the Court of Appeal rejected statements procured by “barefaced lies”. Laskin J.A. (as he then was) stated (at p. 104):
In so holding, I do not rule out as a matter of law all stratagems that the police or persons in authority may employ in questioning a person under arrest. The issue in every case, under the governing law, must be whether they operate or are calculated to operate upon the person to rouse hope of advantage or fear of prejudice, or by their oppressiveness (to borrow a term from the English Judges’ Rules) put in doubt at least whether any ensuing inculpatory statement has been properly elicited. In my view, reinforced by a reading of the whole record, the lies and associated incidents in this case had the forbidden effect in inducing the incriminating statement.
It remains essentially a decision of policy as to whether the accused must be aware he is making the statement to a person in authority before it may be admissible as a confession. On the facts here, that basic question in its broad form does not arise. Here the accused had taken the position that he did not wish to give a statement to the police. The police then, by a ruse, subverted that wish and thus the defendant made his statement after he thought he had established that he was not, in fact, talking to a person in authority. He did not intend, in such circumstances, to make a statement to a person in authority and thus the public authority cannot present the resulting statement as “voluntary” and therefore admissible under the confession rules. A different result might obtain where the accused by the clearest declaration revokes his earlier declared election not to give a statement to the authorities. In such a case the succee