After a person has been charged, many will make a statement to the police about the incident and sometimes even sit down for a formal interview without knowing that they are not obligated to do so. In Canada, every person has a right protected by the Canadian Charter of Rights and Freedoms to not be arbitrarily arrested and to remain silent when suspected or accused of committing a crime. This means that police cannot detain or arrest you without reasonable and probable grounds and they cannot compel you to speak to them, to make a statement, or to assist with their investigation in any way.
All statements made to a person in authority must be proven to be voluntary to be admissible at trial. This is known as the “confessions rule.” The confessions rule attempts to strike a balance between the interests of the accused in maintaining the presumption of innocence and right to remain silent, while at the same time ensuring that the societal interest in the effective investigation of crime is met.
Courts take a contextual approach to assessing the voluntariness of a statement. There are two stages to the inquiry. The first involves assessing whether there have been inducements, such as promises or threats, sufficient to overcome the will of the accused. R. v. Oickle, 2000 SCC 38 at para. 57. At this stage, the court also looks to whether the individual has an “operating mind” and whether there has been an atmosphere of oppression created by the police, sufficient to cast doubt on the voluntariness of the statement. Id. The “classic” inducement involves a promise of leniency in respect of whatever conundrum the individual is facing. A promise to reduce a charge or sentence in exchange for a confession raises a question about voluntariness and will warrant exclusion in all but exceptional circumstances.” Id., at para. 49.
Oppression created by the police also has the potential to inspire a false confession. While not an exhaustive list, the types of things to consider when determining whether the circumstances surrounding the taking of a statement have been oppressive include: a lack of food, water, clothing, sleep, medical attention, counsel, aggressive questioning, intimidating and prolonged questioning, and so on. Oickle, paras. 59-60. In terms of an operating mind, the court’s focus should be on whether the accused is aware of what he is saying and that he is saying it to the police who can use it against him and to his detriment. Brown, para 100.
At the second stage, the court assesses whether police trickery was used in obtaining the statement and, if so, whether the trick or tricks were sufficient to shock the conscience of the community. Oickle, at paras. 65-67. The classic example that is used to amplify upon this prong of the voluntariness doctrine is a police officer pretending to be a chaplain or legal aid lawyer. R. v. Rothman, 1981 CanLII 23 (SCC) at para. 127. Under these circumstances, a confession is not admissible.
If you do make a statement to the police, it is likely it will be used against you at trial, which is why it is important to exercise your right to remain silent. And even if you make a statement to police, the experienced criminal defence team at Kitchen Simeson Belliveau may be able to help you get the evidence excluded before trial.