As with many aspects of criminal law, complexities abound yet remain unresolved on the critical issue of the admissibility of a statement by the accused. As a consequence, counsel and trial judges are required to address the unique aspects of the evidence and facts in each case and evaluate where they may fall within the broad parameters as framed by the Supreme Court of Canada and provincial appellate courts. The difficulty is not to identify the issue but, rather, to determine which of the competing principles is applicable. Further, on an important procedural problem, they are left to fend for themselves in the conduct of the voir dire.
What follows is not meant to provide an exhaustive discussion or analysis. Rather, given the frequency with which these issues arise, an overview may provide counsel and judges some practical assistance on three of the most problematic areas.
For these purposes, a basic hypothetical fact situation may be illustrative. The accused is arrested on a charge of robbery, read his rights which he acknowledges he understands and is cautioned. He is taken to the police station where the officer alleges he made certain incriminating admissions which are not recorded on videotape. The accused then asserts his right to counsel which he exercises. He is then taken into a room where he is interviewed on videotape. For the first several minutes, he indicates that he wishes to remain silent. After questioning by the officer, he makes further admissions.
Several important questions arise:
1. If the admissibility of the statements are challenged on voluntariness as well as right to silence and right to counsel (for the first remark), can all issues be dealt with on one voir dire? If so, what procedure is to be followed?
2. What is the obligation of the police to record all of the statements of the accused?
3. When the accused asserts his right to silence, what is the extent to which the officer may continue to question him? At what point is there an infringement of the accused’s right to silence?
1. THE “BLENDED” VOIR DIRE
“There is a danger when dealing with both the voluntariness issue and a s.10(b) challenge that the two will not be kept distinct. The issues are more distinct than simply requiring different tests and burdens of proof. Although both are aimed at maintaining fairness in the process, the issue of voluntariness is concerned with intimidation or inducements in eliciting statements, while detention is more concerned with police control over the accused’s movements. It is, therefore, essential that the two be decided separately, in form as well as in concept.” (emphasis added)
R. v. Voss (1989), 50 C.C.C.(3d) 58 (Ont.C.A.) per Tarnopolsky, J.A. at p.80.
“…where the admissibility of the same evidence is being contested upon discrete bases, each of which assigns a different burden and quantum of proof, as well raises different issues, as would appear to me, the application of general principles would at least warrant, if not require, separate hearings.
…the parties not having agreed to a consolidated hearing, it remains to decide whether one ought, nonetheless, to be held. In my respectful view, it ought not.” (emphasis added)
R. v. Clancey,  O.J. No. 3967 (Ont.Gen.Div.) per Watt, J. at paras. 54-5.
“While the Crown has submitted that they should not be blended, I am of the view that if I keep in mind the caution of Tarnopolsky, J.A., that the two issues can be decided separately. The issue of the examination of the witnesses can be dealt with as we proceed through the voir dire with rulings, if necessary, keeping in mind the concern expressed by Mr. Justice Tarnopolsky.” (emphasis added)
R. v. Robertshaw,  O.J. No. 1539 (Ont.Gen.Div.) per Philp, J. at para.7.
Where both counsel consent, notwithstanding the need for deciding the issues separately “in form”, blended voir dires have been conducted: R. v. Alexis (1994), 35 C.R. (4th) 117 (Ont.Gen.Div.); R. v. Dempsey,  O.J. No. 196 (Ont.Gen.Div.); R. v. Colson, 2002 CarswellOnt 735 (S.C.J.); R. v. Williams, 2001 CarswellOnt 2929 (S.C.J.).
Even where there has not been consent, to avoid duplication of issues and because of time strictures, a blended voir dire may still be held: Robertshaw, supra; R. v. MacDonald, 1999 CarswellOnt 4781 (S.C.J.).
On a blended voir dire, there is nothing inconsistent with a trial judge finding a failure by the Crown to establish voluntariness beyond a reasonable doubt yet finding, on the same evidence, a failure by the accused to establish a Charter violation on the balance of probabilities so as to lead to the exclusion of evidence of photos of his hand taken during the course of the questioning: R. v. Pabani,  O.J. No. 541 (Ont.C.A.); lv. refd. Oct. 6, 1994.
There remains a complete lack of appellate authority on the procedure to follow on a blended voir dire. The Crown, in the course of meeting its evidentiary burden on the issue of voluntariness, would be required to call those persons in authority necessary and the defence would have the opportunity to cross-examine. What about the evidence to be relied upon by the defence to meet its onus for the Charter argument? To the extent that the infringement may be established by those same police officers, is the defence constrained to questioning in a manner akin to examination-in-chief? Is the Crown allowed to cross-examine the same witnesses it called on the voluntariness issue? Who is permitted to re-examine and on what issues?
Watt, J. in Clancey, supra, referred to the Ontario Court of Appeal in R. v. Kutynec (1992), 70 C.C.C.(3d) 289 which encouraged flexibility in leaving the resolution of how to proceed in a given case to “the good sense of counsel and the discretion of the trial judge”. He felt that it would be cumbersome in the extreme to permit the Crown to examine in chief on voluntariness, let the defence cross-examine on both issues and let the Crown re-examine on voluntariness and cross-examine on Charter issues (with the potential for the defence to re-examine on those issues).
By comparison, Laforme, J. in R.v. Phillips (1996), 17 O.T.C. 255 directed that the Crown call the police witnesses, examining on voluntariness with limited cross-examination, if necessary, on the Charter breach. The defence was allowed to cross-examine on both issues and the Crown would then re-examine.
What if the issue was confined to a Charter breach? If the defence was then required to call the police as its witnesses, could resort to s.9(1) of the Canada Evidence Act authorize cross-examination on the basis that those witnesses were adverse? The British Columbia Court of Appeal in R. v. Feldman (1994), 91 C.C.C. (3d) 256, affd. 93 C.C.C. (3d) 575 expressed some reservation on this option but offered that the trial judge might grant the defence more leeway in questioning its own witnesses than might otherwise be permitted.
It may well be that a method akin to that decried by Watt, J. might ultimately be determined as the proper balance between the meeting of each side’s onus to facilitate the separate consideration of the issues while making the most efficient use of court time.
2. THE REQUIREMENT OF RECORDING ALL QUESTIONING OF THE ACCUSED
“This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession.” (emphasis added)
R. v. Oickle (2000), 147 C.C.C. (3d) 321 (S.C.C.) per Iacobucci, J. at para. 46 (after referring to four reasons why videotaping is important).
“This court has held in Moore-McFarlane that as long as recording equipment is available, the failure to record will generally preclude a finding of voluntariness, except in the circumstance where the officer did not set out to interrogate the suspect.” (emphasis added)
R. v. Ahmed,  O.J. No. 4597 (Ont.C.A.) per Feldman, J.A. at para. 19.
The issue of the significance of the failure by the police to record all questions and answers, by videotape if available, received extensive judicial consideration prior to the decision of the Ontario Court of Appeal in Regina v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493; 56 O.R. (3d) 737. Courts were particularly critical where it appeared that the failure was as a result of the desire to prevent the court from assessing the issue of the ability of the accused to communicate and understand English :R. v. Lim (No.3) (1990), 1 C.R.R. (2d) 148 (O.H.C.) , where only one of the officers present made notes of the interaction: R. v. Barrett (1993), 82 C.C.C. (3d) 266 (Ont.C.A.) or the officers collaborated on their notes: R. v. Vangeant and Green (1978), 42 C.C.C. (2d) 313 (Ont.Prov.Ct.).
Where force policy did not require videotaping and facilities were not present which permitted same, the judge could still make findings of credibility and fact without the benefit of independent evidence, e.g. Regina v. Dempsey, supra, at paras. 93-94.
In Moore-McFarlane, the Court reiterated that there is no absolute rule requiring the recording of statements. However, in the context of the degree to which the Crown may satisfy its onus on voluntariness, Charron, J.A. states:
“Indeed, it is my view that where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without giving any thought to the making of a reliable record, the context inevitably makes the resulting non-recorded interrogation suspect.” (emphasis added) (para. 65);
“And, in my view, the completeness, accuracy and reliability of the record have everything to do with the court’s inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.” (emphasis added) (para. 67).
The issue thus becomes one of evaluating the intent of the officer when the unrecorded interview is conducted. The trial judge will be called upon to decide this issue in the course of considering whether the failure to record made the interrogation suspect and, if so, whether the Crown has provided a sufficient substitute for recording: R. v. Ahmed, supra, at paras. 19-22; R. v. White,  O.J. No. 2458 (Ont.C.A.).
Where the police intend to take a statement and there is audio ro video equipment available, the failure to record it raises a presumption of involuntariness: R. v. Clark,  OlJ. No. 1454 (Ont.S.C.J.).
The absence of a rule excluding unrecorded confessions has been criticized: Penney, Stephen, “What’s Wrong with Self-Incrimination? The Wayward Path of Self-Incrimination Law in the Post-Charter Era- Part II; Self-Incrimination in Police Investigations”, (2004), 48 C. L.Q. 280 at 290-93. Without further articulation by the Supreme Court of Canada or a statutory requirement for police protocol, the common law voluntariness rule continues to apply: R. v. Ducharme,  M.J. No. 60 (Man.C.A.).
Clearly, the current state of the law permits the introduction of an unrecorded interview where there is little dispute about the surrounding circumstances as, for example, where there is a sufficient record of what transpired from the testimony of those present: R. v. Crockett  B.C.J. No. 2947 (B.C.C.A.), or a voir dire not requiring the resolution of a credibility contest but simply a careless or hurried officer who failed to record the interview: R. v. Chamberlain 2003 CarswellMan 362 (Man. Q.B.). What about the situation where the officer might not have set out to question the accused off-camera but takes “spontaneous” advantage of the opportunity to do so?
An accused may indicate that he wishes to speak to the police but without being recorded. In such circumstances, the police should record such refusal: R. v. Backhouse,  O.J. No. 754 (Ont.C.A.). It would not be inappropriate for the police to initiate the interview even prior to obtaining the accused’s consent, discontinuing the recording on objection being expressed: R. v. Young,  O.J. No. 4632 (Ont.S.C.J.).
What a bout the existence of recording facilities in the station for witness interviews not being utilized? Brockenshire, J. concluded that this would provide a strong basis for exclusion: R. v. Cameron  O.J. No. 3545 (S.C.J.).
Where, notwithstanding the failure to record it, a statement is admitted into evidence, it is open for the defence to raise issues of reliability before the jury. In such circumstances, it is incumbent on the trial judge to instruct the jury that the deliberate failure of the police to make a reliable record makes the resultant interrogation suspect: R. v. Wilson,  O.J. No. 2478 (Ont.C.A.). See also: R. v. Swanek,  O.J. No. 493 (Ont.C.A.). Where the failure to give such an instruction did not lead to a new trial as the issue of reliability had not been raised at trial.
What about the failure to record for other purposes as, for example, the breath-testing process pursuant to a demand? The approaches vary from a finding of an absence of a duty to record (R. v. Piko,  O.J. No. 3605 (S.C.J.); R.v. Van Hatten,  O.J. No.3845 (S.C.J.)) to a stay of proceedings for failure to preserve material evidence (R. v. Sivasubramania,  O.J. No. 195 (O.C.J.); R. v. Chechel,  O.J. No. 5167 (O.C.J.); R. v. Li,  O.J. No. 5163 (O.C.J.).
It has been successfully argued that the failure to record a young person’s waiver of right to counsel should result in the exclusion of the statement, particularly given the Toronto Police Policy and Procedure #04-32 requiring :“where the arrested party is a young offender, the right to counsel, waiver of rights and cautions…should be completed on camera.” Could this be extended to the waiver of right to counsel by an adult? What about where there is an issue about the accused’s understanding of his rights? Apart from the issue of voluntariness, is there a duty on the police to utilize available recording measures where they are going to rely upon understanding and waiver of rights?
3. THE RIGHT TO SILENCE v. THE RIGHT TO KEEP ASKING
“The suspect, although placed in the superior power of the state upon detention, retains the right to choose wether or not he will make a statement to the police…If the suspect chooses to make a statement, the suspect may do so. But if the suspect chooses not to, the state is not entitled to use its superior power to overrule the suspect’s will and negate his or her choice.
“…there is nothing in the rule to prohibit the police from questioning the accused in the absence of counsel after the accused has retained counsel…Police persuasion, short of depriving the suspect of the right to choose or depriving him of an operating mind, does not breach the right to silence.”
R. v. Hebert (1990), 57 C.C.C. (3d) 1 (S.C.C.) per McLachlin, J. at pp.38, 41.
“The right to choose whether to speak to the police lies at the heart of the right to silence….Clearly, the repeated assertion by a detained person during a lengthy interview that he does not want to speak to the police any further will provide strong and sometimes conclusive evidence that any subsequent statement was not the product of a free exercise of the detainee’s right to choose whether to speak. The question is, however, a factual question to be decided on a case by case basis by the trial judge.”
R. v. Roy,  O.J. No. 4252 ( Ont.CA)
“Detention until confession is an unacceptable form of persuasion…Although the police may interrogate a suspect and attempt to persuade him to break his silence, they cannot abuse that right by ignoring the will of the suspect and denying his right to make a choice…What is abusive in the present matter might not be with respect to another individual.”
R. v. Otis (2000), 151 C.C.C.(3d) 416 (Que. C. A.) Lv. refd. C.S.C.R. No. 640, per Proulx, J.A. at paras.53-54.
The respective decisions referred to above illustrate two different approaches to the question of the permissible extent of police interrogation after the accused asserted the right to silence. In Roy, the trial judge’s decision that the accused, having retained counsel, fully appreciated his right to silence and chose which questions he wanted to answer and which to refuse during the course of an 8-hour interview. A similar conclusion was reached in R. v. Sarrazin et al (2005), 195 C.C.C. (3d) 257 (Ont.C.A.), R. v. Edmondson,  S.J. No. 256 (Sask.C.A.), and R. v. Singh,  B.C.J. No. 1274 (B.C.C.A.), lv. dis’d Jan. 11/07. By contrast, Otis’ interview of an hour and a half should have been terminated after 35 minutes having regard to his having said on four occasions that he did not wish to say anymore. His low cognition and emotional disintegration was an abuse of the officer’s right to attempt to persuade him to confess. Also see, R. v. Flett,  M.J. No. 242 (Man.Q.B.).
The fact that the accused answered questions which he felt had no bearing on the investigation did not prevent the statement from being ruled inadmissible where, during the course of a lengthy interview, he indicated after speaking to counsel that he didn’t wish to answer: R. v. Ferguson, 1996 CarswellOnt 4069 (S.C.J.); see also the strong comments of Ritter, J. in Dix v. Canada (Attorney General),  A.J. No. 784 at para. 207.
When the accused has spoken with counsel, it is not appropriate for the police to denigrate the role of counsel as it may constitute an infringement of the accused’s rights under s. 10(b): R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.). R. v. Elkadri,  O.J. No.971 (S.C.J.). R. v. Chamberlain, supra, at paras. 55-60, extended this principle to exclude statements where the accused’s request to remain silent unless counsel was present was ignored.
The parameters of a case-by-case analysis, even on this issue, have proven problematic. Applying the decision of Dupont, J. in R. v. Greig (1987), 33 C.C.C. (3d) 40 (Ont.S.C.), the British Columbia Court of Appeal found that the continued questioning of the accused in spite of 24 assertions of the right to silence, amounted to a deliberate infringement of that right: By 2000, the same court considered a series of authorities which in its opinion departed from Greig and concluded that the accused does not have an absolute right, after consulting counsel, to be free from police questioning (within reasonable limits): R.v. Ekman (2000), 146 C.C.C. (3d) 346. See also R. v. Crockett,  B.C.J. No.2947, where the court concluded that an unrecorded statement after the accused consulted with counsel was still admissible as the police had simply pointed out that counsel’s advice was of a general nature.
See also: Penney, Steven, “What’s Wrong with Self-Incrimination?”, supra, at pp.311,318-20.
How long may the police pursue their questioning after a waiver? How much longer after the accused has spoken with counsel? What language must the accused use (and how many times must he use it) to assert his right to silence? What is the significance of his intelligence level, his emotional state and his answering of some of the questions? Under what circumstances would his evidence be necessary on the voir dire, specifically with respect to his state of mind?
All are factors to be weighed by the trial judge in attempting to strike a balance between the interest of the state in its investigators pursuing their course and the interest of the accused in preserving an important right under the Charter.
R. v. Hansen (1988), 46 C.C.C. (3d) 504.
”The right protected by the Charter to remain silent would be without meaning if, despite 24 attempts by Hansen to exercise that right, he is prejudiced at his trial by words he uttered in between the attempts.”: R. v. Ferguson, supra, applying R. v. Hansen (1988), 46 C.C.C. (3d) 504 (B.C.C.A.).
This article originally appeared at The Osgoode Hall Law School Porfessional Development Program, Continuing Legal Education Evidence Workshop April 3, 2004 and was revised, with the help of Steve Kim in January 2007