R. v. Hodgson

R. v. Hodgson
Collection
Supreme Court Judgments
Date
1998-09-24
Report
[1998] 2 SCR 449
Case number
25561
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 25561
Decision Content
R. v. Hodgson, [1998] 2 S.C.R. 449
Michael Colin Hodgson Appellant
v.
Her Majesty The Queen Respondent
and
The Attorney General of Canada,
the Attorney General of Quebec,
the Attorney General of British Columbia
and the Attorney General for Alberta Interveners
Indexed as: R. v. Hodgson
File No.: 25561.
1998: March 24; 1998: September 24.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for ontario
Criminal law ‑‑ Evidence ‑‑ Confessions ‑‑ Accused admitting crime to complainant and her parents when confronted by them ‑‑ Accused held at knife-point after making statement ‑‑ Out-of-court statement admitted without voir dire and without objection by defence counsel ‑‑ Extent to which person in authority requirement should remain part of confessions rule -- Whether voir dire should have been held to determine whether statements made to person in authority and whether statements made voluntarily ‑‑ Whether onus always rests on defence to request voir dire ‑‑ If not, circumstances under which trial judge should hold voir dire ‑‑ Evidence which triggers trial judge’s obligation to hold voir dire.
The trial judge admitted into evidence certain out‑of‑court statements allegedly made by the accused and convicted him of sexual assault. The complainant and her parents had confronted the accused at work and all testified that he admitted the sexual assaults. The complainant’s mother then went to call the police and, on her return, struck the accused. At some point after receiving the statement, the complainant’s father held the accused at knife-point, allegedly to prevent him from leaving before the police arrived. At trial, the accused denied making a confession but testified that he was neither frightened nor threatened during the confrontation. His counsel raised no objection to the admission of the out-of-court statement at trial.
At issue is whether the trial judge erred in failing to direct a voir dire of his own motion to determine whether the statements made to the complainant and her family were given to persons in authority and if so, whether the statements were made voluntarily. Several subsidiary issues required consideration. First, does the onus always rest with the defence to request a voir dire to test the voluntariness of an accused’s out‑of‑court statements? If not, when and under what circumstances should a trial judge hold a voir dire of his or her own motion? Further, is the trial judge’s obligation to hold a voir dire triggered only where the receiver of the confession is a “conventional” person in authority, or should the obligation be construed more broadly? Lastly, to what extent should the “person in authority” requirement remain part of the confessions rule?
Held: The appeal should be dismissed.
Per Lamer C.J. and Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie JJ.: A statement made by an accused to a person in authority must be made voluntarily and must be the product of an operating mind. This rule is based upon two fundamentally important concepts: the need to ensure the reliability of the statement and the need to ensure fairness by guarding against improper coercion by the state. This results in the requirement that the admission must not be obtained by either threats or inducements. The person in authority requirement is grounded in the underlying rationales for the confessions rule and should remain part of the rule.
The definition of “person in authority” typically refers to those formally engaged in the arrest, detention, examination or prosecution of the accused and so applies to police officers and prison officials or guards. When an accused makes a statement to a police officer or prison guard a voir dire should be held to determine its admissibility as a voluntary statement, unless the voir dire is waived by the defence. In addition, those persons whom the accused reasonably believes are acting on behalf of the state and could therefore influence or control the proceedings against him or her may also be persons in authority. That issue must be resolved by considering it from the viewpoint of the accused. The receiver’s status as a person in authority arises only if the accused has knowledge of that status. In addition, there must be a reasonable basis for the accused’s belief that the person hearing the statement was a person in authority. This issue will not normally arise in relation to undercover police officers because, from the accused’s viewpoint, they will not usually be viewed as persons in authority.
The defence must raise the “person in authority” issue with the trial judge. This is appropriate for it is only the accused who can know that the statement was made to someone regarded by the accused as a person in authority. On the ensuing voir dire, the accused will have the evidential burden of demonstrating that there is a valid issue for consideration. If the accused meets the burden, the Crown will then have the persuasive burden of demonstrating beyond a reasonable doubt that the receiver of the statement was not a person in authority, or if it is found that he or she was a person in authority, that the statement was made voluntarily.
In extremely rare cases, the evidence adduced during a trial, viewed objectively, may indicate that the issue as to whether the receiver of a statement of the accused was a person in authority should be explored by way of voir dire. In those cases, the trial judge must of his or her own motion direct a voir dire. Evidence which clearly demonstrates that the receiver of the statement was closely connected to the authorities should alert the trial judge to the need for a voir dire on the issue. This evidence progresses along a spectrum. Where the receiver of the statement is a “conventional” person in authority, such as a police officer or prison guard, the trial judge must clearly proceed to a voir dire to test the voluntariness of the statement. Similarly, where the evidence discloses a close connection between the receiver and the authorities such that, if known to the accused, he or she could reasonably have believed that the receiver was acting as an agent of the prosecuting authorities, the trial judge should inquire whether the defence is prepared to discharge its evidential burden on the person in authority issue or whether it waives a voir dire on this issue. However, the further away the receiver of the statement is from the conventional person in authority, the less likely it will be that the evidence will alert the trial judge to the need to hold a voir dire and the greater the obligation of the accused to raise the issue.
If the trial judge is satisfied that the receiver of the statement was not a person in authority but that the statement of the accused was obtained by reprehensible coercive tactics such as violence or credible threats of violence, then a direction should be given to the jury. The jury should be instructed that if they conclude that the statement was obtained by coercion, they should be cautious about accepting it, and that little if any weight should be attached to it.
The evidence at trial did not disclose any evidence that was sufficient to trigger the trial judge’s obligation to hold a voir dire. When the statements were admitted into evidence, there was nothing to suggest that the complainant or her family members had spoken to the police or anyone else in authority or were even considering making a complaint. Similarly, there was nothing to suggest that the accused subjectively believed the complainant’s family to have control over criminal proceedings. The trial judge properly used the evidence of the confession to confirm the complainant’s testimony.
Per L’Heureux-Dubé and Bastarache JJ.: The result of Cory J. was agreed with but his test with respect to the proper interpretation of “persons in authority” was not agreed with.
The confessions rule is a specific and delimited exception to the basic rule that it is for the trier of fact to assess the truth of statements in all the surrounding circumstances, as well as the recognition that statements made by the accused against his or her interest are inherently reliable. Interpretation of its integral concept of “person in authority” must be bound by applicable policy rationales which justify the confessions rule’s exclusion of relevant evidence. Essentially where policy concerns historically related to the confession’s reliability, modern rationales of the confessions rule now focus on state conduct and individual fairness. Basic fairness in the criminal process unifies the two rationales of reliability and state deterrence, and questions of truth have given way to a focus on voluntariness. The confessions rule is only concerned with voluntariness, however, where statements are made to persons in authority. Indeed, the general unfairness of utilizing involuntary statements resulting from private coercion has never been the focus of the confessions rule, even when the rule was justified by policy concerns for reliability. Its modern rationales explicitly affirm that the rule is concerned only with voluntariness within the relationship between the state and the individual.
As such, legislative change to the confessions rule altering the requirement of a person in authority is neither appropriate nor desirable. The best rule is still that, once it is accepted that the confession of the accused was not made to a person in authority, it is properly admissible without any requirement for the Crown to establish that it was voluntary. Strict retention of this rule promotes clarity, is consistent with modern rationales justifying the exclusion of relevant evidence and serves the general public interest by facilitating the pursuit of truth. The “person in authority” requirement is, and should remain, the pivotal concept in the confessions rule.
The proper test for “person in authority” examines first the objective status of the person to whom the confession or statement was made, and only where they are identified as someone formally engaged in the arrest, detention, interrogation or prosecution of the accused is it then necessary to examine whether the accused believed that the person could influence or control the proceedings against him or her. Only in the rarest of cases will non-traditional persons in authority fall into this category, and it still must be objectively established on the facts that such persons had actual control in the proceedings. This approach furthers the modern principles underlying the confessions rule, and does not erect additional unwarranted barriers to the admission of relevant evidence. It recognizes that a subjective approach to the test for “persons in authority” was primarily adopted to address the circumstance of undercover state agents. The necessary prerequisite, however, remains an actual person in authority or “instrumentality” of the state.
As a general rule, the defence has the onus of requesting a voir dire, raising the issue that the accused’s statement was made to a “person in authority” and thus putting the statement’s admissibility into question. In exceptional circumstances, the trial judge may have the duty to conduct a voir dire where the evidence reveals the realistic potential that the admission was made to a representative of the state and the accused might objectively have known of this authority. Only evidence available on the record prior to the admission of the accused’s statement is relevant to the determination of what the trial judge’s duty was. This duty will automatically arise in cases of obvious persons in authority, subject to informed waiver by the accused, since in such cases it is reasonable to infer the accused’s knowledge of this authority. In the case of non-obvious persons in authority, however, the evidence must reveal both the reasonable possibility that the person was an agent of the state and that the accused could have known of this status.
Here, there was no realistic possibility that the complainant and her immediate family constituted persons in authority for purposes of the confessions rule, and therefore the trial judge had no duty to host a voir dire.
Cases Cited
By Cory J.
Distinguished: Thongjai v. The Queen, [1998] A.C. 54; considered: Erven v. The Queen, [1979] 1 S.C.R. 926; referred to: R. v. Wells, [1998] 2 S.C.R. 517; R. v. A.B. (1986), 26 C.C.C. (3d) 17; 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; Ward v. The Queen, [1979] 2 S.C.R. 30; Horvath v. The Queen, [1979] 2 S.C.R. 376; R. v. Warickshall (1783), 1 Leach 263, 168 E.R. 234; DeClercq v. The Queen, [1968] S.C.R. 902; R. v. Buric (1996), 28 O.R. (3d) 737, aff’d [1997] 1 S.C.R. 535; R. v. Charemski, [1998] 1 S.C.R. 679; Commissioners of Customs and Excise v. Harz, [1967] 1 A.C. 760; R. v. Sang, [1979] 2 All E.R. 1222; Piché v. The Queen, [1971] S.C.R. 23; Rothman v. The Queen, [1981] 1 S.C.R. 640; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. S. (R.J.), [1995] 1 S.C.R. 451; R. v. Whittle, [1994] 2 S.C.R. 914; Deokinanan v. R., [1968] 2 All E.R. 346; Watkins v. Olafson, [1989] 2 S.C.R. 750; R. v. Salituro, [1991] 3 S.C.R. 654; Bow Valley Husky (Bermuda) Ltd. v. Saint John Shipbuilding Ltd., [1997] 3 S.C.R. 1210; Winnipeg Child and Family Services (Northwest Area) v. G. (D.F.), [1997] 3 S.C.R. 925; R. v. Todd (1901), 4 C.C.C. 514; R. v. Roadhouse (1933), 61 C.C.C. 191; R. v. Berger (1975), 27 C.C.C. (2d) 357; R. v. Trenholme (1920), 35 C.C.C. 341; R. v. Wilband, [1967] S.C.R. 14; R. v. Downey (1976), 32 C.C.C. (2d) 511; R. v. Sweryda (1987), 34 C.C.C. (3d) 325; R. v. Scott (1984), 1 O.A.C. 397; Morris v. The Queen, [1979] 2 S.C.R. 1041; R. v. McKenzie, [1965] 3 C.C.C. 6; R. v. Postman (1977), 3 A.R. 524; R. v. Sweezey (1974), 20 C.C.C. (2d) 400.
By L’Heureux-Dubé J.
Considered: Rothman v. The Queen, [1981] 1 S.C.R. 640; referred to: Ibrahim v. The King, [1914] A.C. 599; R. v. Khan, [1990] 2 S.C.R. 531; D.P.P. v. Ping Lin, [1976] A.C. 574; R. v. Seaboyer, [1991] 2 S.C.R. 577; Hardy’s Trial (1794), 24 State Tr. 199; Clarkson v. The Queen, [1986] 1 S.C.R. 383; R. v. Whittle, [1994] 2 S.C.R. 914; Lego v. Twomey, 404 U.S. 477 (1972); R. v. Paonessa (1982), 66 C.C.C. (2d) 300, aff’d [1983] 1 S.C.R. 660; R. v. A.B. (1986), 26 C.C.C. (3d) 17, leave to appeal refused [1986] 1 S.C.R. v; R. v. Stewart (1980), 54 C.C.C. (2d) 93; R. v. Fowler (1982), 4 C.C.C. (3d) 481; R. v. Collins (1975), 29 C.C.C. (2d) 304; R. v. Todd (1901), 4 C.C.C. 514; R. v. McIntyre (1993), 135 N.B.R. (2d) 266, aff’d [1994] 2 S.C.R. 480; R. v. Hebert, [1990] 2 S.C.R. 151; R. v. Amyot (1990), 58 C.C.C. (3d) 312; R. v. Frewin (1855), 6 Cox C.C. 530; R. v. McKenzie, [1965] 3 C.C.C. 6; R. v. Sweryda (1987), 34 C.C.C. (3d) 325; R. v. Trenholme (1920), 35 C.C.C. 341; R. v. Kyle (1991), 68 C.C.C. (3d) 286; Wilband v. The Queen, [1967] S.C.R. 14; R. v. Unger (1993), 83 C.C.C. (3d) 228; R. v. Corbett, [1988] 1 S.C.R. 670; R. v. Lomage (1991), 2 O.R. (3d) 621; R. v. Sweezey (1974), 20 C.C.C. (2d) 400; Erven v. The Queen, [1979] 1 S.C.R. 926; R. v. Wells, [1998] 2 S.C.R. 517; R. v. Pettipiece (1972), 7 C.C.C. (2d) 133; Powell v. The Queen, [1977] 1 S.C.R. 362; Park v. The Queen, [1981] 2 S.C.R. 64.
Statutes and Regulations Cited
Evidence Act 1995, 1995 (Australia), No. 2, s. 84.
Evidence Act 1995, 1995 (N.S.W.), No. 25, s. 84.
Police and Criminal Evidence Act 1984, 1984 (U.K.), c. 60, s. 76.
Authors Cited
Berger, Mark. “The Exclusionary Rule and Confession Evidence: Some Perspectives on Evolving Practices and Policies in the United States and England and Wales” (1991), 20 Anglo‑Am. L. Rev. 63.
Canada. Law Reform Commission. Report on Evidence. Ottawa: The Commission, 1975.
Federal/Provincial Task Force on Uniform Rules of Evidence. Report of the Federal/Provincial Task Force on Uniform Rules of Evidence. Toronto: Carswell, 1982.
Gillies, Peter. Law of Evidence in Australia, 2nd ed. Sydney: Legal Books, 1991.
Herman, Lawrence. “The Unexplored Relationship Between the Privilege Against Compulsory Self‑Incrimination and the Involuntary Confession Rule (Part I)” (1992), 53 Ohio St. L.J. 101.
Kaufman, Fred. The Admissibility of Confessions, 3rd ed. Toronto: Carswell, 1979.
McWilliams, Peter K. Canadian Criminal Evidence, vol. 2, 3rd ed. Aurora, Ont.: Canada Law Book, 1988 (loose-leaf updated April 1998).
Sopinka, John, Sidney N. Lederman and Alan W. Bryant. The Law of Evidence in Canada. Toronto: Butterworths, 1992.
United Kingdom. Criminal Law Revision Committee. Eleventh Report, Evidence (General). Cmnd. 4991. London: H.M.S.O., 1972.
APPEAL from a judgment of the Ontario Court of Appeal (1996), 91 O.A.C. 298 (sub nom. R. v. M.C.H.), 107 C.C.C. (3d) 327, [1996] O.J. No. 2366 (QL), dismissing an appeal from conviction by Paisley J. sitting with jury. Appeal dismissed.
Irwin Koziebrocki, for the appellant.
Ian R. Smith, for the respondent.
S. David Frankel, Q.C., for the intervener the Attorney General of Canada.
Joanne Marceau and Jacques Gauvin, for the intervener the Attorney General of Quebec.
John M. Gordon, for the intervener the Attorney General of British Columbia.
Written submission only by Martin W. Mason, for the intervener the Attorney General for Alberta.
//Cory J.//
The judgment of Lamer C.J. and Gonthier, Cory, McLachlin, Iacobucci, Major and Binnie JJ. was delivered by
1 Cory J. ‑‑ The same issues must be resolved in both this appeal and that of R. v. Wells, [1998] 2 S.C.R. 517.
2 In both cases, defence counsel did not request a voir dire to test the voluntariness of certain out‑of‑court statements allegedly made by the accused and, as a result, the statements were admitted into evidence. The appellants contend that the trial judge erred in failing to direct a voir dire of his own motion to determine whether the statements were given to a person in authority and if so, whether they were made voluntarily.
3 In order to determine whether the trial judge erred it is necessary to consider several subsidiary issues. First, does the onus always rest with the defence to request a voir dire to test the voluntariness of an accused’s out‑of‑court statements? If not, when and under what circumstances should a trial judge hold a voir dire of his or her own motion? Further, is the trial judge’s obligation to hold a voir dire triggered only where the receiver of the statement is a “conventional” person in authority, or should the obligation be construed more broadly? Lastly, to what extent should the “person in authority” requirement remain part of the confessions rule?
I. Factual Background
4 The appellant was a friend of the complainant’s family and occasionally babysat the complainant and her siblings. The complainant, who was sixteen years old at the time of trial, testified that commencing when she was approximately seven or eight years of age and continuing until she was approximately eleven years of age, the appellant sexually assaulted her on several occasions. The complainant testified that she never told anyone about the incidents because she was afraid and because the appellant told her that she would get in trouble if she did.
5 The complainant testified that in 1993, she finally told her mother about these incidents. When the allegations were revealed, the complainant, her mother, her father, and her stepfather went to the appellant’s place of employment and confronted him. They all testified that the appellant confessed to having sexually assaulted the complainant on several occasions, that the appellant had said he was sorry, and that he had said he “knew it would catch up with him”. The complainant’s mother went to call the police, and when she returned she struck the appellant. At some point, the complainant’s father pulled out a knife and held it to the appellant’s back. The father, stepfather and mother testified that the father pulled the knife after the appellant confessed in order to prevent the appellant from leaving before the police arrived.
6 At trial, the appellant testified that he was confronted at work by the complainant and her family about the sexual assaults, but he denied making a confession. He stated that he was stunned, shocked and upset by the confrontation and did not want the situation to get blown out of proportion, but that he was neither frightened nor threatened during the confrontation.
7 At trial, the appellant raised no objection to the admission of the confession evidence. The trial judge relied on this evidence and convicted the appellant.
II. Judgments Below
A. Ontario Court (General Division) (Paisley J.)
8 The trial judge noted that the appellant had previously been of good character, and he found that this enhanced the appellant’s credibility. Nevertheless, the trial judge found the confession evidence “overwhelming”, notwithstanding the appellant’s denial. Paisley J. also found the testimony of the complainant to be credible. The trial judge recognized that even if he disbelieved the evidence of the appellant, he was still bound to assess the weight of the Crown’s evidence to see whether or not it had proven its case beyond a reasonable doubt. He concluded that the Crown had discharged its burden, and that there was no rational basis for coming to any other conclusion than that the appellant was guilty of the acts of sexual assault. The appellant was convicted and sentenced to four and a half years’ imprisonment.
B. Court of Appeal (1996), 91 O.A.C. 298 (Finlayson J.A. for the court)
9 Finlayson J.A. relied on R. v. A.B. (1986), 26 C.C.C. (3d) 17 (Ont. C.A.), for the proposition that in some circumstances, persons other than those engaged in the arrest, detention, examination or prosecution of an accused may be considered persons in authority. In particular, he noted that the court in A.B., supra, found that in certain circumstances, the parent of an infant complainant may be considered to be a person in authority.
10 However, Finlayson J.A. noted that to determine whether some or all of the persons confronting the appellant in this case were persons in authority would require a careful factual investigation, and found that it would not be proper to decide the matter on the limited record available. Moreover, he held that when a statement is made to a person not ordinarily engaged in the arrest, detention, examination or prosecution of an accused person, the defence has a responsibility to raise the issue at trial and ask for a voir dire to determine whether the receiver of the confession was a person in authority. Finlayson J.A. found that the defence bears this responsibility because the subjective reaction of the accused to his or her interrogator is essential to the ultimate determination of voluntariness. Absent the presence of a conventional authority figure at the time when an inculpatory statement is made, the trial judge must be placed on notice that the voluntariness of the statement is a live issue. Thus the trial judge did not err in failing to hold a voir dire to test the voluntariness of the appellant’s confession.
11 Finlayson J.A. held that in this case, the question as to whether any or all of the family members confronting the appellant were persons in authority was not a live issue. The admissibility of the statement was not challenged, and the only issue at trial was the weight to be given to it. The trial judge gave it considerable weight, and found it to be important, as he was entitled to do. The trial judge found that the complainant was credible, and it was open to him to use the evidence of the appellant’s confession as confirmation of the complainant’s testimony. The appeal from conviction was dismissed.
III. Analysis
12 It “can now be taken to be clearly established in Canada that no statement made out of court by an accused to a person in authority can be admitted into evidence against him unless the prosecution shows, to the satisfaction of the trial judge, that the statement was made freely and voluntarily”. See Erven v. The Queen, [1979] 1 S.C.R. 926, at p. 931, per Dickson J., as he then was. This, of course, is the confessions rule.
13 The basic issue in this appeal is whether the trial judge erred in failing to hold a voir dire of his own motion to test the voluntariness of certain out‑of‑court statements made by the accused before admitting them. In order to resolve this issue, it is appropriate to consider whether the confessions rule should continue to apply only to statements made to persons in authority, or whether it should be expanded so as to capture the out‑of‑court statements made by the accused in this case. It will therefore be helpful to begin by examining the history of the confessions rule generally, and the person in authority requirement in particular, in order to understand the purpose and function of the rule in the criminal law.
A. The Confessions Rule and its Relation to the Person in Authority Requirement
14 Evidence of a confession has always been accorded great weight by triers of fact. This is a natural manifestation of human experience. It is because of the tremendous significance attributed to confessions and the innate realization that they could be obtained by improper means that the circumstances surrounding a confession have for centuries been carefully scrutinized to determine whether it should be admitted. A confession is not excluded, however, simply because of the risk that a conviction may result, but because of the greater risk that the conviction will be unfairly obtained and unjust. The unfairness of admitting a confession has historically been addressed by a consideration of two factors. First, the voluntariness of the statement; and second, the status of the receiver of the statement, that is to say, whether the receiver was a person in authority.
15 As to the first factor, a statement is said to be voluntary when it is made without “fear of prejudice or hope of advantage”: see Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609, adopted in Canada in Prosko v. The King (1922), 63 S.C.R. 226. In Boudreau v. The King, [1949] S.C.R. 262, at p. 269, Rand J. explained that “the rule is directed against the danger of improperly instigated or induced or coerced admissions”. Voluntariness also requires that the statement must be the product of an operating mind: see Ward v. The Queen, [1979] 2 S.C.R. 30, at p. 40, per Spence J. and Horvath v. The Queen, [1979] 2 S.C.R. 376, at p. 425, per Beetz J. Voluntariness is determined by a careful investigation of the circumstances surrounding the statement of the accused, and involves a consideration of both objective and subjective factors.
16 Second, the person in authority requirement generally refers to anyone formally engaged in “the arrest, detention, examination or prosecution of the accused”: see, e.g., A.B., supra, at p. 26. This definition may be enlarged to encompass persons who are deemed to be persons in authority as a result of the circumstances surrounding the making of the statement. For the moment, however, let us consider the purpose of each of these factors as they pertain to the admissibility of statements of the accused.
17 Historically the insistence that a confession must be voluntary related to concerns about the reliability of the evidence. Indeed, the basis for the admission of a statement of the accused as an exception to the rule against hearsay is that what people freely say which is contrary to their interest is probably true. However, where a statement is prompted by a threat or inducement held out by a person in authority, it can no longer be presumed to be true. Initially when considering the admissibility of confessions some judges focused exclusively on reliability concerns as the sole rationale for the confessions rule. This is made readily apparent in the case of R. v. Warickshall (1783), 1 Leach 263, 168 E.R. 234, at p. 263 and at pp. 234‑35, respectively:
It is a mistaken notion, that the evidence of confessions and facts which have been obtained from prisoners by promises or threats, is to be rejected from a regard to public faith: no such rule ever prevailed. The idea is novel in theory, and would be as dangerous in practice as it is repugnant to the general principles of criminal law. Confessions are received in evidence, or rejected as inadmissible, under a consideration whether they are or are not intitled [sic] to credit. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the strongest sense of guilt. . . . [Emphasis added.]
18 There is also strong historical precedent for the proposition that the confessions rule is rooted in a concern for the administration of justice and fundamental principles of fairness, in particular the principle against self‑incrimination. In a treatise on the law of evidence written by Lord Chief Baron Gilbert and published in 1754, the author makes the following comment:
. . . the voluntary Confession of the Party in Interest is reckoned the best Evidence; for if a Man’s swearing for his Interest can give no Credit, he must certainly give most Credit when he swears against it; but then this Confession must be voluntary and without Compulsion; for our Law differs from the Civil Law, that it will not force any Man to accuse himself; and in this we do certainly follow the Law of Nature, which commands every Man to endeavor his own Preservation; and therefore Pain and Force may compel Men to confess what is not the Truth of Facts, and consequently such extorted confessions are not to be depended upon. [Emphasis added.]
See Lawrence Herman, “The Unexplored Relationship Between the Privilege Against Compulsory Self‑Incrimination and the Involuntary Confession Rule (Part I)” (1992), 53 Ohio St. L.J. 101, at p. 153, citing Sir Geoffrey Gilbert, The Law of Evidence (1769). Thus, it is apparent that from its very inception, the confessions rule was designed not only to ensure the reliability of the confession, but also to guarantee fundamental fairness in the criminal process.
19 Of particular significance is the relationship between these two concerns of reliability and fairness. It must be recognized that the purpose of the confessions rule is to exclude putatively unreliable statements, not actually unreliable statements. In other words, the confessions rule excludes statements obtained by force, threat or promises as somehow inherently unreliable, but does not inquire into the actual truth or falsity of the statement. If the concern of the confessions rule were truly the reliability of the statement, then the court’s inquiry would focus on objective corroboration of the confession evidence; if additional evidence confirmed the confession was accurate, it should be admitted under a reliability rationale.
20 Instead, the confessions rule asks only if the statement was voluntary, not if the statement is true. DeClercq v. The Queen, [1968] S.C.R. 902. This focus on voluntariness allows a court to analyse the circumstances surrounding the statement and effectively acts as a check on the abuse of state power. In other words, if the state were left with the option of simply corroborating forced confessions, there would be little incentive to refrain from reprehensible investigative measures. That is why the confessions rule automatically excludes involuntary statements, regardless of their veracity. As stated by Professor Mark Berger in “The Exclusionary Rule and Confession Evidence: Some Perspectives on Evolving Practices and Policies in the United States and England and Wales” (1991), 20 Anglo‑Am. L. Rev. 63, at p. 71:
. . . it is inescapable that the decision to reject all involuntary confessions incorporates policies that find fault with the use of coercive tactics to extract statements, independent of their impact on reliability. In short, the exclusion of involuntary confessions, at least as practised in the United States and formerly in England, is designed as a response to improper police interrogation tactics as much as, if not more than, it is aimed at ensuring evidence reliability.
This aspect of the confessions rule ‑‑ which focuses on voluntariness over truth ‑‑ indicates that the rule is not concerned solely with accuracy or reliability.
21 This approach to the rule determining the admissibility of a statement of the accused also accords with the view that the quality, weight or reliability of evidence is a matter for the jury, and that the admission of evidence which may be unreliable does not per se render a trial unfair: see, e.g., R. v. Buric (1996), 28 O.R. (3d) 737 (C.A.), aff’d [1997] 1 S.C.R. 535, and R. v. Charemski, [1998] 1 S.C.R. 679. The confessions rule does not force a trial judge to exclude “unreliable” evidence that is highly probative of guilt. Rather it focuses on putative reliability, by analysing the circumstances surrounding the statement and their effect on the accused, regardless of the statement’s accuracy. Thus the “reliability” rationale and the “fairness” rationale for the confessions rule blend together, so as to ensure fair treatment to the accused in the criminal process by deterring coercive state tactics.
22 Indeed, when considering this notion of fairness, several courts have found that the confessions rule is based upon the principle against self‑incrimination. Two decisions of the House of Lords, Commissioners of Customs and Excise v. Harz, [1967] 1 A.C. 760, and R. v. Sang, [1979] 2 All E.R. 1222, suggest that this is the modern basis for the rule. The relationship between the principle against self‑incrimination and the confessions rule has also been noted in dicta in a number of Canadian decisions. See, e.g., DeClercq, supra, at p. 923, per Hall J. (dissenting); Piché v. The Queen, [1971] S.C.R. 23, at p. 26, per Cartwright C.J.; Rothman v. The Queen, [1981] 1 S.C.R. 640, at pp. 653‑54, per Estey J. (dissenting). More recently, McLachlin J. in R. v. Hebert, [1990] 2 S.C.R. 151, at p. 173 specifically linked the confessions rule to fundamental notions of fairness and the principle that accused persons should not be conscripted to provide evidence against themselves. She put it in this way:
. . . one of the themes running through the jurisprudence on confessions is the idea that a person in the power of the state’s criminal process has the right to freely choose whether or not to make a statement to the police. This idea is accompanied by a correlative concern with the repute and integrity of the judicial process. This theme has not always been ascendant. Yet, its importance cannot be denied. It persists, both in Canadian jurisprudence and in the rules governing the rights of suspects in other countries.
23 I recognize, as did McLachlin J. in Hebert, supra, at p. 173, Iacobucci J. in R. v. S. (R.J.), [1995] 1 S.C.R. 451, at pp. 500‑501, and Sopinka J. in R. v. Whittle, [1994] 2 S.C.R. 914, at p. 932, that the self‑incrimination basis for the confessions rule “must be historically qualified” (S. (R.J.), at p. 499) and that “[i]n Canada, a rationale for the confessions rule extending beyond trustworthiness has not always been easy to locate” (S. (R.J.), at p. 500). Nevertheless, I must recognize, as did my colleagues, that in a modern sense, the confessions rule has clearly been associated with these ideas. Indeed, in the Report of the Federal/Provincial Task Force on Uniform Rules of Evidence (1982), the Task Force concluded at p. 175 that “the clear common law principle that the Crown must establish its case without the assistance of the accused . . . is the primary rationale of the Confessions Rule today”.
24 For this reason, the person in authority requirement is properly seen as an integral component of the confessions rule. The emphasis on voluntariness has two main effects: it both avoids the unfairness of a conviction based on a confession that might be unreliable, and has a deterrent effect on the use of coercive tactics. This deterrent effect is properly focused upon the prosecutorial authority of the state, not the personal authority of private individuals. It cannot be forgotten that it is the nature of the authority exerted by the state that might prompt an involuntary statement. As Estey J. stated in Rothman, supra, at pp. 650‑51, “their very authority might, by promise or threat, express or implied, produce a statement whether or not the accused was truly willing to speak” (emphasis added). In other words, it is the fear of reprisal or hope of leniency that persons in authority may hold out and which is associated with their official status that may render a statement involuntary. The rule is generally not concerned with conversations between private citizens that might indicate guilt, as these conversations would not be influenced or affected by the coercive power of the state. This limitation is appropriate since most criminal investigations are undertaken by the state, and it is then that an accused is most vulnerable to state coercion.
25 On a practical level, the Crown would obviously face an overwhelming burden if it had to establish the voluntariness of every statement against interest made by an accused to any person. See the Law Reform Commission of Canada, Report on Evidence (1975), at p. 62. In particular, as the intervener the Attorney General of Canada notes, the elimination of the person in authority requirement would have serious consequences for undercover police work and for the admissibility of wiretap evidence, where the identity of the receiver of the accused’s statement is often unknown. For example, if the Crown were to intercept a phone call between an accused and a confederate who is senior to him in a criminal hierarchy, the Crown would obviously have difficulty tendering the requisite evidence if it were forced to prove beyond a reasonable doubt that the statements were made without “fear of prejudice or hope of advantage”. Moreover, all statements to undercover police officers would become subject to the confessions rule, even though the accused was completely unaware of their status and, at the time he made the statement, would never have considered the undercover officers to be persons in authority.
26 Practical considerations alone lead to the conclusion that the person in authority requirement should remain a part of the confessions rule. Yet there can be no doubt that there may well be great unfairness suffered by the accused when an involuntary confession obtained as a result of violence or credible threats of imminent violence by a private individual is admitted into evidence. For this reason, the British Criminal Law Revision Committee in 1972 recommended eliminating the person in authority requirement from the confessions rule. See Eleventh Report, Evidence (General) (1972), at p. 39. The Committee focused on reliability concerns and realistically concluded that a false confession could just as readily result from threats and inducements offered by a private individual as from a person in authority. The Police and Criminal Evidence Act 1984, 1984 (U.K.), c. 60, was later enacted to implement some of these suggestions. Section 76 of that Act provides that where it is represented to the court that a confession was obtained “by oppression of the person who made it” or “in consequence of anything said or done which was likely, in the circumstances existin