Though it may be difficult to understand, it remains that innocent individuals sometimes confess to crimes they have not committed. As noted by Justice Binnie of the Supreme Court of Canada, in dissent, in R. v. Sinclair:
It bears repeating that persons detained or arrested may be quite innocent of what is being alleged against them. Canada’s growing platoon of the wrongfully convicted, including the by now familiar roll call of Donald Marshall, David Milgaard, Guy-Paul Morin, Thomas Sophonow, Ronald Dalton, Gregory Parsons, Randy Druken, and others attest to the dangers of police tunnel vision and the resulting unfairness of their investigation. See The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons and Randy Druken, by the Right Honourable Antonio Lamer (St. John’s, 2006), at p. 171-73. Convinced (wrongly) of the detainee’s guilt, the police will take whatever time and ingenuity it may require to wear down the resistance of the individual they just know is culpable. As this Court recognized in R. v. Oickle, 2000 SCC 38 (S.C.C.), innocent people are induced to make false confessions more frequently than those unacquainted with the phenomenon might expect.179
As this chapter highlights, considerable progress has been made in implementing the 2005 Report’s recommendations which called for a review of investigation standards respecting the interviewing of suspects and witnesses, and training about false confessions.
Since the release of the 2005 Report, two Commissions of Inquiry have delivered reports in which recommendations were made regarding the recording of police interviews of both suspects and witnesses:
In R. v. Singh,180 the Supreme Court of Canada considered the scope of a detainee’s pre-trial right to silence under s. 7 of the Charter as defined in R. v. Hebert and the common law confessions rule as defined in R. v. Oickle. During police questioning, the accused repeatedly asserted his right to silence and advised police he did not wish to speak to them or participate in the interview. Police persisted in questioning him and ultimately obtained incriminating admissions.
The Supreme Court of Canada upheld the trial decision that the statements were voluntary and in so doing rejected the suggestion that the police
“…should be required to inform the detainee of his or her right to silence and, absent a signed waiver, to refrain from questioning any detainee who states that he or she does not wish to speak to the police” because that approach
“ignores the state interests at stake . . . [and] overshoots the protection afforded to the individual’s freedom of choice both at common law and under the Charter. Under the Charter, the right to counsel, including an informational and implementational component, is provided for expressly. No such provision appears in respect of the right to silence.”181 The Court further noted that the right to silence is within the control of an accused who has an operating mind and who has been advised of his or her rights.182
The Court noted that there is considerable overlap between the confessions rule and the right to silence under s. 7 of the Charter; that the confessions rule is
“largely informed by the problem of false confessions” and that
“[t]he parameters of the rule are very much tailored to counter the dangers created by improper interrogation techniques that commonly produce false confessions.”183 The Court held that
“[i]n the context of a police interrogation of a person in detention, where the detainee knows he or she is speaking to a person in authority, the two tests for determining whether the suspect’s right to silence was respected are functionally equivalent.”184 Thus, “[a] finding of voluntariness will… be determinative of the s. 7 issue.”185
In R. v. Spencer,186 the Supreme Court of Canada upheld the trial judge’s ruling that the accused’s statement was voluntary. The accused was arrested while driving his girlfriend’s vehicle and charged with 18 counts of robbery. His girlfriend was arrested a day later. During an eight-hour interview following the girlfriend’s arrest, the accused confessed to the robberies. At trial, it was argued that he was induced to confess by a hope of leniency for his girlfriend and the promise of a visit with her. The trial judge found that the interviewing officer did not offer lenient treatment for the accused’s girlfriend in exchange for a confession. Rather, the accused attempted to broker this deal, and the interviewing officer advised that no such deal could be made. The trial judge found that allowing the accused to visit his girlfriend only after he
“cleaned his slate” was an inducement but not a sufficiently strong one to overbear the accused’s will. The Supreme Court agreed with the trial judge, stating that a
“quid pro quo is an important factor in establishing the existence of a threat or promise, [but] it is the strength of the inducement, having regard to the particular individual and his or her circumstances, that is to be considered in the overall contextual analysis into the voluntariness of the accused’s statement.”187 The trial judge did not err in concluding police did not offer leniency for the accused’s girlfriend and that withholding a visit to her until at least a partial confession was made was not a strong enough inducement to render the accused’s statements inadmissible. Relevant to the voluntariness analysis was the fact that the accused had not lost control of the interview to the point where he and the interviewing officer were no longer playing on a level field, and the accused was an aggressive, mature and savvy participant in the interview who tried to secure deals with the police.
It is noteworthy that the Court’s voluntariness analysis in these two cases has been met with some critical academic commentary. It has been argued that these two decisions fail to adequately protect against the risk of false confessions. Professor Dale Ives, Faculty of Law at University of Western Ontario, argues that the Supreme Court’s decision in Singh
“strips the right to silence of any real meaning. Suspects have no right to be formally informed of their right to remain silent, nor is there any obligation on the police to stop questioning except seemingly in the most extreme circumstances,” which creates a risk of false confessions because
“the right to silence adds nothing to the voluntariness rule” and does not assist in regulating police interrogation practices.188 Ives also argues that Spencer
“narrows the voluntariness rule and the protection it affords to the innocent” because it allowed a statement that was the result of an inducement, which is often a factor in false confessions.189
Professor Timothy Moore, Chair of the Psychology Department at York University, similarly argues that
“the protection that the right to silence is supposed to provide is largely spurious” because there is no absolute requirement that police provide detainees with the standard caution, and “[t]he caution is not well understood in the first place.”190 Further, he says allowing police to continue to question a suspect who has asserted the right to silence is dangerous because it creates a coercive situation and the suspect could reasonably infer that he or she has no choice but to answer the questions. Suspects, he asserts, should have the right to have counsel present during any interview and to have interrogation terminated upon assertion of the right to silence.191
Assistant Professor Lisa Dufraimont, Faculty of Law at Queen’s University, argues that given that some false confessions are likely to be admitted into evidence under the confessions rule, particularly as a result of the Supreme Court’s ruling in Spencer,
[c]ourts should develop a practice of instructing juries on the danger of false confessions. At the very least, a jury confronted with a retracted confession should be warned that innocent suspects have been known to confess to crimes under the pressure of police interrogation . . . Depending on the case, it might also be appropriate for the judge to outline the types of false confessions and the circumstances . . . that contribute to the problem.192
When considering academic concerns regarding the right to silence and the confessions rule, and whether the Supreme Court has struck the proper balance between an accused’s rights and the societal interest in investigating crime, it must be kept in mind that while police are not required to advise detainees of the right to silence, whether police provide the standard police caution has always been a factor in assessing voluntariness.
In R. v. Grandinetti,193 the Supreme Court of Canada maintained that the confessions rule applies when a statement is made to a person in authority and that a person in authority is someone who is perceived to be acting on behalf of police or prosecuting authorities, but does not include a police officer who is purporting and perceived to be acting on behalf of a criminal organization: the
“Mr. Big” scenario.
The accused was convicted of first degree murder in the death of his aunt. During the investigation, the accused made inculpatory statements to undercover officers pretending to be members of a criminal organization. The accused thought he was dealing with a large international organization involved in drug trafficking and money laundering. He was led to believe that this organization was moving to Calgary, that he had been chosen as its Calgary contact, and that he could potentially make hundreds of thousands of dollars by participating in the organization’s criminal activities. Police engaged the accused in criminal activities, including money laundering, theft, receiving illegal firearms, and selling drugs. The undercover officers convinced the accused to confess to the murder by telling him that they had corrupt contacts in the police department who could influence the investigation and steer it away from the accused, that the ongoing murder investigation could be a liability to the criminal organization, and that he should come clean to them (one of whom was represented to be Mr. Big, the head of the criminal organization) to protect the criminal organization from possible police interference. Defence argued that the undercover officers should be considered persons in authority because the accused
“believed they could influence the investigation into the murder of his aunt through corrupt police officers they claimed to know.”
The Supreme Court upheld the trial judge’s ruling that the officers were not persons in authority because a person in authority is someone who the accused believes
“…to be not someone who seeks to sabotage the investigation.194 The Supreme Court agreed with the trial judge that
‘ agent of the police or prosecuting authorities’, and
‘ in concert with the police or prosecutorial authorities, or as their agent,’”
“reason and common sense dictate that when the cases speak of a person in authority as one who is capable of controlling or influencing the course of the proceedings, it is from the perspective of someone who is involved in the investigation, the apprehension and prosecution of a criminal offence resulting in a conviction, an agent of the police or someone working in collaboration with the police. It does not include someone who seeks to sabotage the investigation or steer the investigation away from a suspect that the state is investigating.”195
In affirming that the trial judge made no error in admitting the statements, the Supreme Court did not address the issue of whether the admission of the statements would amount to an abuse of process as a result of the way in which they were obtained, i.e., through an undercover
“Mr. Big” operation. The Court noted that though the
“abuse of process” argument was made at trial, it was rejected both at trial and on appeal, and was not argued before the top court. This is perhaps not surprising. While there has been much extra-judicial criticism of this technique, statements obtained by the typical
“Mr. Big” operation would appear to be neither a violation of the Charter nor an abuse of process at common law: see, R v McIntyre,  2 S.C.R. 480; R v Osmar,  O.J. No. 244, 217 C.C.C. (3d) 174 (C.A.), leave to appeal refused  S.C. A. No. 157; and R v Bonisteel,  B.C.N. No. 1705 (BCCA).
In R. v. L.T.H.,196 the Supreme Court of Canada held that the requirement in s. 146 of the Youth Criminal Justice Act that the rights in s. 146(2)(b)197 be clearly explained to the young person in language appropriate to his or her age and understanding, requires the Crown to prove beyond a reasonable doubt that
“the necessary explanation was given in appropriate and understandable language.”198 Waiver must also be proven beyond a reasonable doubt. Section 146 is premised on
“the generally accepted proposition that procedural and evidentiary safeguards available to adults do not adequately protect young persons, who are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.”199 The proof beyond a reasonable doubt standard is based, in part, upon a desire to prevent false confessions.
The law remains clear that the contemporaneous recording of a police interview/interrogation is not a requirement of the common-law confessions rule.200 Nor has Parliament legislated such a requirement. However, such a practice continues to be strongly encouraged by the courts, commissions, and academics. For instance, the British Columbia Court of Appeal has noted that:
Although the contemporaneous recording of a police interview/interrogation of a suspect is highly desirable, and is a practice that has been both recommended and encouraged by courts and commissions of inquiry, it is not a requirement of the common-law confessions rule. Indeed, in R. v. Richards (1997), 87 B.C.A.C. 21 (B.C. C.A.), extension of time and leave refused,  S.C.C.A. No. 100 (S.C.C.), Mr. Justice Braidwood opined that any change in this regard is for Parliament, not the courts: paras. 36 -38. Most recently, Chief Justice Finch in R. v. Quinn, 2009 BCCA 267 (B.C. C.A.), reiterated that an unrecorded statement is not automatically inadmissible:
The Supreme Court of Canada has ruled in the context of formal police interviews that there is no legal requirement that a police interview be videotaped: R. v. Oickle,  2 S.C.R. 3, 2000 SCC 38. The failure to record electronically a formal police interview, when there is no good reason not to, may raise suspicion and present obstacles to the Crown in its efforts to prove beyond a reasonable doubt that a statement given to a person in authority was voluntary. But whether such suspicion is warranted depends on the facts of each case: R. v. Ducharme, 2004 MBCA 29, 182 C.C.C. (3d) 243; R. v. Groat, 2006 BCCA 27.201
Academic commentary invariably supports electronic recording of custodial interrogations. Thomas Sullivan, a former U.S. Attorney and co-chair of the Illinois Commission on Capital Punishment, after a study in which detectives and prosecutors from 450 police stations across the United States were interviewed, found that police, prosecutors and judges prefer electronically recorded interrogations. Electronic recording creates an objective record, decreases false claims of police abuse, makes fact finding easier, and increases guilty pleas where a confession is made.202 The Justice Project (Washington, D.C.) has found similar benefits, saying electronically recording interrogations creates an
“objective record of a critical phase in the investigation of a crime,” protects police from
“false claims of abuse or coercion,” provides strong evidence of guilt in the case of confessions and enhances the fact-finding function of the trier of fact.203 Timothy Moore argues that “[a]ll police interviews conducted in Canada” should be video recorded to protect against inappropriate police questioning.204
Most importantly, it is suggested that an electronic record of an interrogation may reduce the risk of wrongful convictions based on false confessions:
A comprehensive electronic record of interrogations helps prevent wrongful convictions stemming from false confessions by providing courts with the information necessary to accurately assess whether a defendant’s statement is reliable and voluntary. Additionally, an electronic record allows law enforcement and prosecutors to review the interrogation later, to observe the suspect’s demeanor and watch for inconsistencies. This allows for a more informed decision about whether to charge a suspect on the basis of a statement, thus helping to prevent the prosecution of an innocent individual.205
Many jurisdictions have electronic recording requirements,206 and most academic commentators support legislative requirements for electronically recording custodial interrogations in defined circumstances. Sullivan states, with respect to the situation in the United States, that given the obvious benefits of electronic recording,
“state and federal legislators should give serious consideration to legislation requiring that custodial interrogations be recorded, thus bringing law enforcement personnel into line with best practices, which will result in savings of public funds and greatly assist in accurate, efficient law enforcement.”207
The Justice Project Report recommends that electronic recording requirements be implemented, and that they be implemented by legislation in order to ensure
“uniformity and comprehensive guidance” on when and where electronic recordings are required, exceptions to requirements, and consequences for non-compliance with requirements.208
On the other hand, those arguing against a legislated mandatory rule note that it would be difficult for any mandatory rule to not be over or under inclusive. Exceptions will always be required, and to date all legislative and judicial electronic recording requirements have exceptions. Further, adopting a mandatory electronic recording requirement would necessarily move Canada’s voluntariness analysis away from its current contextual approach (
“totality of the circumstances”), reduce some trial judge discretion and leave one factor predominant over others when determining the voluntariness of a statement.
As noted previously, in Canada there is no legislation mandating the recording of police interviews/interrogations.
Canadian courts of appeal have considered whether to admit expert evidence tendered by the defence in support of the theory that the accused’s purported confession was false or unreliable. Central to the admissibility of such evidence is the question of whether the topic may be adequately addressed by a comprehensive jury instruction. This issue has not been resolved. As noted by the Ontario Court of Appeal, the admissibility of such evidence is
“anything but obvious and should be approached with considerable caution.”
In R. v. Phillion,209 the Ontario Court of Appeal ordered a new trial for Romeo Phillion, who was convicted in 1972 of murdering a firefighter in Ottawa on August 9, 1967. There was fresh evidence in the form of a police report that suggested the accused may have been in Trenton between 12:00 and 1:00 p.m., on the date of the murder, thereby making it impossible for him to have been in Ottawa at 2:45 p.m., when the murder occurred.
In addition to the fresh alibi evidence, the defence sought to introduce fresh evidence related to a claim that Mr. Phillion’s confession was false. He confessed to the crime approximately four years after it occurred when he was arrested on an unrelated matter. The confession was made to a police officer who had not been involved in the original homicide investigation and who had not solicited information about the murder. Mr. Phillion also confessed to his friend, Neil Miller, several days earlier. Mr. Phillion recanted his confession the same day he made it and told another officer that he had nothing to do with the murder. He said that he confessed so that Miller could report it and he and Miller could share the reward and to send police on a wild goose chase. Both confessions and the recantation were tendered in evidence at the original trial. Dr. Arboleda, a psychiatrist, and Dr. Girodo, a psychologist, testified that the confession was inherently unreliable because Mr. Phillion’s psychological profile was such that he had a propensity to lie and to invent stories to make himself feel important.
The alleged fresh evidence in relation to the confession was evidence from Dr. Gisli Gudjonsson, a world expert on false confessions, and Dr. Graham Turrall, a psychologist. Both were of the opinion that the confession was unreliable due to Mr. Phillion’s personal characteristics. Dr. Turrall described him as
“a dependent and depressive individual with a tendency for attention-seeking behaviours and impulsivity” and as being
“immature, intellectually limited . . . and antisocial” and stated that his
“[p]ersonality functioning is suggestive of an individual who needs to be seen by others as important and special.” Dr. Turrall opined that Mr. Phillion was the
“type of person who could confess to a crime that he did not commit, especially a serious and high profile crime like the unsolved murder of Mr. Roy” and that his statements to Miller and the police would have been suspect as an attempt at self-aggrandizement.210
Dr. Gudjonsson concurred in Dr. Turrall’s assessement of Mr. Phillion’s personality and opined that his confession was inherently unreliable and probably false and likely the result of his
“desire and need to enhance his vulnerable self-esteem by becoming somebody important . . . while at the same time also possibly taking . . . revenge on the police” by sending them on a wild goose chase.211 Dr. Gudjonsson testified with respect to the accuracy of Phillion’s confessions when tested against the known facts surrounding the murder and the possibility that his knowledge about the crime resulted from contamination from outside sources. He also compared and contrasted features of Mr. Phillion’s case that were analogous to other cases of false confessions.
The Ontario Court of Appeal held that
“in cases such as this where the reliability of a confession is in issue, expert evidence regarding an accused’s personality traits that is relevant to and probative of the issue will be admissible,” but the evidence in question was not fresh evidence because this type of evidence was led at trial.212
The Crown had argued that, while there is nothing wrong with leading evidence of a person’s personality defects to suggest that he lied when confessing, an expert cannot, under the guise of science,
“state whether a confession is reliable or not” because there is
“no scientific foundation for such an assertion.” In other words, an expert should not be allowed to tell a jury that he can identify a reliable confession simply because he is an expert. The Crown also argued that
“much of Dr. Gudjonsson’s proposed evidence related to matters that ordinary people can understand and form a correct judgment about without the assistance of an expert” and that a jury instruction would be sufficient to alert the jury to the fact that false confessions do occur and to dispel the view that people do not confess to serious crimes that they have not committed.213
The Court declined to rule on these arguments, saying that the Crown’s objections to the evidence were set out in detail because
“…at the very least, they show that the admissibility of expert evidence on false confessions is anything but obvious and should be approached with considerable caution. Of particular concern is whether the proposed evidence reaches the level of scientific reliability required by Mohan to warrant its reception.”214
In R. v. Bonisteel,215 the accused confessed to the murder of two teenage girls to an undercover officer during a Mr. Big operation. On appeal, the accused argued, among other things, that the trial judge erred in
“disallowing defence expert evidence concerning the inherent unreliability” of the confession.216 The accused also took issue with the instructions given to the jury and argued generally that the confession was inherently unreliable because the undercover operation was
“designed to produce powerful psychological pressures on the appellant to falsely confess.”217
The British Columbia Court of Appeal found no grounds for excluding the confession. It held that the trial judge did not err in refusing to admit expert evidence on false confessions because the expert evidence was being offered to
“educate the jury about false confessions” and was not specific to the accused. Thus, it was unnecessary. It found that the trial judge’s instructions to the jury were sufficient. In the case of statements made during a Mr. Big operation,
“there is no particular form of warning that the trial judge must follow in warning the jury about false confessions” other than explaining that an accused may have a motive to lie.218 The jury was warned of
“the danger of false confessions, with particular reference to confessions produced by an undercover operation such as this” and warned that resulting statements are
“inherently unreliable.”219 The trial judge
“discussed the known risk in criminal law of false confessions, and warned the jury that it is wrong to assume that people confess only to crimes they have actually committed. He spoke of the 220
‘ of the target during an undercover sting’ and instructed the jury to take
‘ care’ in considering the
‘ or credibility’ of the [confession].”
In R. v. Osmar,221 the accused confessed to the murder of two men to an undercover officer, again during a Mr. Big operation. At trial, he denied committing the murders and testified that he lied to the undercover officer so that he could get a job with the criminal organization. On appeal the accused argued, among other things, that admitting the statements into evidence would violate the principle against self-incrimination as guaranteed by s. 7 of the Charter, that the trial judge erred in excluding expert evidence in relation to false confessions and that the trial judge did not adequately caution the jury about the danger of relying upon the accused’s statements to the undercover officers.
The Ontario Court of Appeal held that admitting the confession did not breach s. 7 of the Charter because in Hebert the Supreme Court of Canada held that
“the right to silence guaranteed by s. 7 of the Charter is not infringed by undercover police operations where the suspect is not detained” and in McIntyre the Supreme Court affirmed the application of Hebert in a Mr. Big-type case.222
The Court of Appeal held that the expert evidence in question was properly excluded because it did not meet the necessity requirement for admission of expert evidence. The defence proposed to call Dr. Richard Ofshe, a social psychologist and a leading expert on the phenomenon of false confessions, to testify to three things. First, he was to testify to the fact
“that there is a bias among lay people against the idea that someone who is indeed innocent might falsely confess.”223 Second, he was to testify about what motivates a person, including an innocent person, to confess to a person in authority. This testimony was unnecessary because
“the motive for a possible false confession was obvious, as was the fact that there was no downside to confessing to men the [accused] believed were criminals. . . . Dr. Ofshe would simply be describing what was obvious from the testimony of the police officers and, indeed, from the [accused’s] own evidence.”224 Third, he was to testify
“about the way to evaluate whether or not a confession is false.”225 But Dr. Ofshe’s method of determining whether the confession was true or false was to compare it to the known facts about the crime, and the
“jury did not need help understanding this point.”226
The accused also argued that the trial judge should have warned the jury
“in the strongest terms as to the unreliability of the [accused’s] confessions and the risk that they were false, especially since he did not admit Dr. Ofshe’s evidence” and that
“a correct instruction would contain the following elements:
Although a confession may appear to be convincing evidence of guilt, there are cases known to the law where suspects have falsely confessed leading to miscarriages of justice.
If the statement was obtained by an inducement, the jury should be cautious about accepting it and little if any weight should be attached to it.
The jury should determine whether the statement contains details consistent or inconsistent with the known facts and evinces knowledge only available to the perpetrator with a pointed warning about the danger of contamination.”227
The Court of Appeal held that such a warning was not required in this case and noted, with respect to the first desired instruction, that the risk of bias in not believing that an innocent person would falsely confess is greatest in cases of formal police interrogation. With respect to the second desired instruction, unlike in Hodgson where the Supreme Court suggested a warning regarding the weight to be placed on confessions obtained by inhumane or degrading treatment, there was no such treatment in this case. The jury was given instructions with respect to the third instruction.228
A significant number of crimes are regularly – and quite properly – solved with the assistance of the offender’s confession. Such confessions are often the result of an in-custody police interrogation. The strategies that are effective in obtaining confessions from a guilty suspect may also on occasion produce false confessions from innocent people. Certain aspects of an interview (in particular, excessively long interviews) and/or the personal characteristics of the subject (e.g., low intelligence, youth, emotional instability, mental health issues) may heighten the possibility of a false confession. This heightens the need for police and prosecutors to look for internal consistency in a purported confession, external consistency with known facts and corroboration (so that a prosecution is not based on a confession alone).
Also quite properly, appellate courts have instructed trial judges to closely scrutinize such confessions in the context of voluntariness voir dires. In the result, police training programs typically provide officers with instruction and guidance respecting the various components of an effective police interrogation. And increasingly, such training programs are also instructing officers to remain attendant to the possibility that an interrogation may elicit a false confession. While there are many interrogation methods, going under a variety of names, the nature of a particular interrogation is as much dependant on the style of the police officer as it is dependent upon the method(s) taught to the particular officer.
That said, some interrogation methods have attracted particular scrutiny. For instance, courts have considered the admissibility of confessions elicited using the so-called Reid Technique.229 The Reid Technique is an interrogation style that is widely used by police agencies – and has been for years – but has more recently been the subject of increasing criticism as the process and steps involved are becoming more widely known. While often effective in eliciting incriminating statements from suspects, the Reid Technique raises concerns about unreliable confessions and wrongful convictions. Confessions obtained using the Reid Technique have been repeatedly found to be admissible; however, there are examples where courts have ruled statements inadmissible and have criticized aspects of the Reid Technique as too coercive.
The technique, in short, is one of many techniques that are based upon moral justification. The interrogator presents a monologue in which the suspect is discouraged from making denials or offering explanations. While weak denials are discouraged during the interrogation phase, the interviewer is advised to evaluate any denials. The suspect is offered alternative or contrasting questions with two choices, one of which is less morally challenging than the other. If the suspect acknowledges a choice the interrogation moves to non-leading questions to draw out the full confession.
Some decisions have criticized the Reid Technique230 and in particular the minimization aspect of the technique and the atmosphere of oppression created by an intense, focused and unrelenting interrogation.231 For example, in R v. Peters the Court stated:
- [the investigator] then interrogated [the suspect, Mr. Peters] for about forty minutes, using the ‘Reid Interviewing and Interrogation Technique,’ a system used widely for many years by Canadian and some American police authorities.
- The videotape evinces an intense, focused and unrelenting interrogation. The officer is seen to persistently cut Mr. Peters off from speaking in order to minimize or prevent his numerous denials, and to force him to listen to the themes she was presenting. She agreed with counsel’s suggestion that so long as the accused was in the denial stage, she would let him speak only to make admissions. She did not think this coercive approach had any impact on him. She is seen to sit extremely close to him, but does not believe that such physical proximity had the effect, in the circumstances of such an intense interrogation, of intimidating him.
- [The investigator’s] methods included ignoring, deflecting or overriding any objections or denials on his part. She often raised her voice, demeaned him and physically crowded him. She forcefully required him to listen to themes she presented that, in my view, were inducements encompassing both promises and threats in relation to himself and his family. These and other circumstances presented, in my view, as oppressive.232
As the 2005 Report emphasized, vigilance is key. Police and prosecutors must be constantly on guard against the aspects of an interrogation that can lead to a false confession. The ongoing training of these key participants in the criminal justice system will help ensure that false confessions are avoided and that any such confessions are identified as such.
The 2005 Report noted that it was already the norm for police services to video record police station interviews of suspects in major crime investigations. For many police forces now, video recording routinely extends beyond custodial interviews of suspects in major crime investigations to all custodial interviews of suspects at police facilities.
The other recommendations, calling for a review of investigation standards respecting the interviewing of suspects and witnesses and training about false confessions, have also been implemented in jurisdictions. For instance, in 2005 the Vancouver Police Department reviewed its policies and changes were made to ensure that they were consistent with the 2005 Report. In particular, the VPD’s Investigators’ Level II Program includes a segment
“Preventing Wrongful Convictions through Investigative Excellence.” A component dealing with the issue of false confessions includes, inter alia, reasons for false confessions, avoiding them, and ensuring that in-custody suspect interviews are always video-recorded. The Sûreté du Québec keeps its standards up to date by their Behaviour Analysis Division, which includes a forensic psychologist who is a renowned expert on the subject of police interviews of suspects. Members of the Behaviour Analysis Division provide investigation interview training and seminars that include psychology of confessions, factors associated with confessions, avoidance of false confessions, etc.
Since the release of the 2005 Report, the recommended training for prosecutors has been provided as well. For instance, in 2009-10, the PPSC, in collaboration with the RCMP and Department of Justice Canada, conducted a series of day-long training days for prosecutors and RCMP officers in the three northern Territories. The training included sessions on eyewitness identification, false confessions and tunnel vision. At the October 2005 Winnipeg conference Unlocking Innocence, Gisli Gudjonsson, Professor of Psychology at the Institute of Psychiatry in London, spoke about his examination of the phenomenon of false confessions, and highlighted psychological vulnerability and police impropriety as the two main causes for false confessions. Chapter 10 highlights other educational initiatives, which included sessions on false confessions.
The first 2005 recommendation suggested the video recording of interviews of suspects in
“investigations involving offences of significant personal violence (e.g. murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.)”. A number of suggestions have been made as to how this recommendation might be improved. One prosecution service has recommended that the list of examples be expanded to include offences of sexual assault and domestic violence; another prosecution service has recommended that the limitation be broadened to include
“other significant criminal offences (such as drug trafficking) as identified by the police investigators based on the circumstances and seriousness of the offence;” and the Canadian Bar Association has suggested that the terminology be replaced altogether by
“major crime investigations,” which is the terminology used by the Lamer Inquiry Report.233 Christopher Sherrin suggests eliminating the limitation altogether, that the limitation
“offences of significant personal violence” is under-inclusive and vague and that interviews of all suspects at police stations should be video recorded, regardless of the offence being investigated.234
In considering these comments it should be recalled that the 2005 Report noted that,
The Working Group’s recommendations are aimed primarily at the most serious of offences, particularly homicides. These are the cases where the risk of long-term incarceration, and hence the consequences of wrongful conviction, are the greatest. However, we recognize that some of our suggestions are applicable to other offences as well, when feasible (bolding in original).
Further, in making the original recommendation in the 2005 Report, the advisability of limiting the video recording requirement by offence type was specifically canvassed. That discussion need not be repeated here. The working model that was used contained the limitation,
“in a serious case such as homicide.” This was considered too general and that clearer direction should be provided. The same might be said of
“major case investigation.” What is a
“major case”? The phrase
“offences of significant violence,” together with examples, more clearly articulates when the video recording requirement is to be met. As to providing further examples, it must be kept in mind that the list of examples given is open-ended and not exhaustive: clearly offences of sexual assault and domestic violence can be considered and usually are
“offences of significant personal violence.”
The Subcommittee also believes the phrase
“offences of significant personal violence” should remain as is. It is meant as a minimum requirement and adding
“other significant criminal offences (such as drug trafficking) as identified by the police investigators based on the circumstances and seriousness of the offence,” would add undue complexity.
The current video recording recommendation requires the video recording of suspect interviews
“at a police facility.” It has been suggested that this be extended to require the audio-taping of interviews in the field, as recommended by the Lamer Inquiry Report. In fact, it would appear that the recommendation of the Lamer Inquiry Report is that all interviews of all persons, whether a suspect or a witness, be recorded in some fashion. It reads:
In all major crime investigation, police station interviews should be videotaped and field interviews should be audiotaped.
While this recommendation would certainly be a good, if not best, practice to enhance accuracy of recollection, it is not clear that it is currently feasible or that making it a requirement is needed to prevent false confessions.
The Subcommittee concludes, therefore, that the first recommendation need not be changed at this time.
179 R. v. Sinclair  2 SCR 310 at para. 90.
180 R. v. Singh  3 SCR 405. The accused was arrested for second-degree murder in relation to the death of an innocent bystander who was killed by a stray bullet while standing inside the doorway of a pub. He was advised of his right to counsel under s. 10(b) of the Charter and privately consulted with counsel. During the course of two subsequent interviews with a police officer, the accused stated on numerous occasions that he did not want to talk about the incident, that he did not know anything about it, or that he wanted to return to his cell. On each occasion, the officer would either affirm that the accused did not have to say anything and state that it was nonetheless his duty or his desire to place the evidence before the accused, or he would deflect the accused’s assertion and eventually engage him again in at least limited conversation. During the course of the first interview, the accused did not confess to the crime but made incriminating statements by identifying himself in pictures taken from the video surveillance inside the pub in question and in another pub. Before the accused was shown the photographs in question and made the impugned admissions, he asserted his right to silence18 times.
181 Ibid., at paras. 42-43.
182 Note that young persons have been found to be particularly vulnerable to the coercive effects of detention and police questioning. Where the accused is a young person, a court may well come to different conclusion respecting the voluntariness of a statement or respecting whether the accused’s right to silence had been violated. See, for example: R. v. C.K. (2005) O.J. No. 4853. (C.J.).
183 Ibid., at para 29.
184 Ibid., at para 39.
185 Ibid., at para. 37.
186 R. v. Spencer  S.C.R. 500.
187 Ibid., at para. 15
188 Ives, Dale,
“A Meaningless Right to Silence with Dangerous Consequences” (2007) 51 C.R. (6th) 250 at 3- 4 on Westlaw printout.
189 Ibid., pp. 4 and 6 on Westlaw printout.
190 Moore, Timothy,
“ (2007) 51 C.R. (6th) 233 at p. 9 on Westlaw printout.
‘ can talk if you want to’: Is the Police Caution on the
‘ to Silence’ Understandable?”
191 Ibid., p. 10 on Westlaw printout. See also Moore, Timothy, (2006) 33 C.R. (6th) 316; Yau, Benissa Making the Right to Choose to Remain Silent a Meaningful One (2006) 38 C.R. (6th) 226.
192 Dufraimont, Lisa,
“Regulating Unreliable Evidence: Can Evidence Rules Guide Juries and Prevent Wrongful Convictions?” (2008) 33 Queen’s Law Journal 261 at 323.
193 R. v. Grandinetti  S.C.R. 27.
194 Ibid., at paras. 43-44.
195 Ibid at para. 39.
196 R. v. L.T.H., 2008 SCC 49.
197 Section 146(2) of the Youth Criminal Justice Act (“YCJA”) provides that statements made by young persons to persons in authority are not admissible unless, among other things, the person taking the statement clearly explains in language appropriate to the age and understanding of the young person that the young person has certain rights enumerated in s. 146(2)(b), including that the young person is not obligated to make the statement; that it may be used in evidence against him or her; the right to consult with counsel or a parent; and that the statement is required to be made in the presence of counsel or a parent unless the young person desires otherwise. The right to counsel and to have counsel or a parent present when a statement is being made may be waived.
198 Ibid., at para. 5-6, per Fish J. for himself and three other members of the Court.
199 Ibid., at para. 3.
200 R. v Narwal (2009), 248 C.C.C. (3d) 62 (B.C.C.A.), at pp. 75-76; and R. v Ducharme (2004), 182 C.C.C. (3d) 243 (Man. C.A.), leave to appeal to S.C.C. refused  1 S.C.R. viii.
201 R. v Narwal, supra, at para. 37.
202 Sullivan, Thomas P.,
“The time has come for law enforcement recordings of custodial interviews, start to finish” (2006) 37 Golden Gate U. Law. Rev. 175 at 178-79.
203 The Justice Project,
“Electronic Recording of Custodial Interrogations: A Policy Review” at p. 2.
204 Timothy Moore, supra, p. 190. See also Yau, Benissa, Making the Right to Choose to Remain Silent a Meaningful One, (2006) 38 C.R. (6th) 226, where Yau says that mandatory videotaping of entire interrogations is beneficial because it averts disputes about whether coercive tactics were used.
205 Supra note 203 at p. 7.
206 A number of states in the United States, a number of states in Australia, and the United Kingdom require, either through legislation or court decisions, that custodial interrogations for serious cases be electronically recorded. Texas and Illinois have state legislation requiring electronic recording in defined circumstances. Maine has legislation requiring law enforcement agencies to adopt written policies on recording procedures for serious crimes. In Alaska courts have interpreted the state constitution’s due process clause as requiring police to electronically record suspect interrogations if the suspect is taken into a place of detention and recording was feasible because arbitrary failure to record affects an accused’s ability to present a defence and recording is necessary to protect the right against self-incrimination and the right to a fair trial. In Minnesota courts have created an electronic recording requirement and held that failure to record may result in inadmissibility if the failure to record was a substantial violation of the rule. In Massachusetts electronic recording is a factor in assessing voluntariness, and even if the statement is admitted the trial judge should give the jury a cautionary instruction on the failure to record. A number of federal courts have also commented on the desirability of electronic recording and held that cautionary instructions are required in the face of failure to electronically record in defined circumstances. In Australia the Australian High Court has characterized non-electronically recorded interrogations as suspect, thereby making recording a practical necessity for purposes of prosecution. In addition, several states have legislation requiring that confessions be videotaped if police suspect that a serious crime has been committed, making evidence of a non-recorded admission inadmissible unless a reasonable excuse exists for the failure to record. In the United Kingdom whether a confession was electronically recorded is a factor in the voluntariness analysis. The Police and Criminal Evidence Act requires that
“all interviews at police stations with persons suspected of offences that are triable on indictment must be tape recorded.” Failure to record when required may lead to inadmissibility of the statement where admission would have an adverse effect on the fairness of the proceedings. See also: The Justice Project Report, supra, where it is noted that in addition to the states mentioned above that New Jersey, New Mexico, Maine and Wisconsin have electronic recording requirements.
207 Justice Project
“Electronic Recording of Custodial Interrogations,” supra, pp. 180-81.
208 Ibid., at p. 15.
209 R. v. Phillion  O.J. No. 849 (C.A.).
210 Ibid., at para. 201.
211 Ibid., at paras. 204, 207.
212 Ibid., at para. 218.
213 Ibid., at paras. 214-216.
214 Ibid., at para. 217.
215 R. v. Bonisteel  B.C.J. No. 1705 (B.C.C.A.).
216 Ibid., at para. 25.
217 Ibid., at para. 217.
218 Ibid., at para. 73.
219 Ibid., at para. 66.
220 Ibid., at para. 76.
221 R. v. Osmar  O.J. No. 244 (C.A.).
222 Ibid., at paras. 25, 47.
223 Ibid., at paras. 56,69.
224 Ibid., at paras. 56, 70.
225 Ibid., at para. 56.
226 Ibid., at para.71.
227 Ibid., at para. 73.
228 Ibid., at paras. 74-77.
229 R. v. Viszlai B.C.J. No. 2697 (B.C.S.C.); R. v. Grant,  M.J. No. 641 (Prov. Ct.); R. v. Giroux,  B.C.J. No. 1982 (S.C.); R. v. S.L.S., 1999 ABCA 41,  A.J. No. 69; R. v. Whalen,  O.J. No. 3488 (C.J.) [Whalen]; R. v. M.J.S., 2000 ABPC 44,  A.J. No. 391; R. v. Minde, 2003 ABQB 797[Minde],  A.J. No. 1184; R. v. Barges,  O.J. No. 5595 (S.C.J.) ; and R. v. N.,  O.J. No. 357 (S.C.J.). R. v. Peters,
230 The Reid Technique actually consists of two parts: the Reid Behaviour Analysis Interview and the Reid Nine Steps of Interrogation. During the Reid Behaviour Analysis Interview, the interviewer is non-confrontational, asks for the subject’s version of the events, and asks probing questions. Much of the criticism of the Reid Technique is focused on the Reid Nine Steps of Interrogation.
231 Peters, supra.
232 Peters, supra, at paras. 14, 15, 66 respectively.
233 Lamer Inquiry Report, p. 109.
234 Christopher Sherrin, Comment on the Report on the Prevention of Miscarriages of Justice (2007) 52 C.L.Q. 140. University of Western Ontario, at 161-162.