General Principles
The confessions rule prohibits the admission at trial of statements made by suspects to police or to other persons in authority, unless the Crown proves beyond a reasonable doubt that such statements were voluntary.
Where what is said to negate voluntariness is an inducement offered by a person in authority, a trial judge should examine the evidence for a quid pro quo offer by investigators. This offer raises the possibility that an accused is confessing, not because of any inherent desire to do so, but because of an appetite for the benefit offered. The mere offer of an inducement is not improper, however,. An inducement only becomes improper when, on its own or in combination with other factors, the inducement is strong enough to raise a reasonable doubt about whether the accused’s will has been overborne:
Where the hope is self-generated, the essential quid pro quo falls away, even if something said or done by a person in authority amounts to an inducement. For there, there is no nexus: R v Richards, 2017 ONCA 424 at paras 76-77
In R. v. DeClercq, [1968] SCR 902, the Supreme Court of Canada held that the truth or falsity of a statement to a person in authority is not irrelevant to an inquiry into the voluntariness of the statement. In giving evidence on the voir dire on voluntariness, an accused may be asked whether the statement is true: Richards, at para 82
The confessions rule is linked to the law’s concern that involuntary statements are unreliable. However, the rule is also said to rest on fundamental notions of trial fairness and 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, coupled with a concern [for] the repute and integrity of the judicial process. Those same concerns underlay the privilege against self-incrimination a detainee’s right to silence, which is as a principle of fundamental justice under section 7 of the Charter: R v Paterson, 2017 SCC 17 at paras 14-15
Voluntariness is concerned with the circumstances in which a statement is made. The content of the statement does not affect or change the circumstances in which the statement was made: R v Stevenson, 2016 ONCA 292 at para 12
The absence of a caution is a factor that goes to the voluntariness of the statement: R v Pearson, 2017 ONCA 389 at para 16, citing R. v. A.D., [2003] O.J. No. 4901 (S.C.), at paras. 61-75; R. v. Smyth, [2006] O.J. No. 5527, at paras. 81-84; and R v Belbin, 2015 ONSC 5346, at paras. 105-111. However, the absence of a caution is not determinative: R v Pearson, 2017 ONCA 389 at paras 19-22, citing R v Singh, 2007 SCC 48, [2007] 2 S.C.R. 405, at para. 31; R v Bottineau, 2011 ONCA 194, 269 C.C.C. (3d) 227, leave to appeal to SCC refused, [2011] SCCA No. 455,
A trial judge has a duty to ensure that a statement is voluntary notwithstanding counsel’s failure to raise the issue. A trial judge does not commit reversible error, however, unless clear evidence existed in the record which objectively should have alerted him to the need for a voir dire notwithstanding counsel's silence: R v Stevenson, 2016 ONCA 292 at para 11
The confessions rule does not apply to statements tendered in the context of a Charter voir dire: R v Paterson, 2017 SCC 17 at para 18
It is fundamental that in nearly all cases, a statement made to a person in authority by one accused is not admissible in relation to another co-accused in a joint trial, even if the statement refers to something said or done by the other accused. The co-conspirators’ exception to hearsay is an exception to this general rule. t follows that, at least as a general rule, a co-accused has no direct interest in a voir dire held to determine the admissibility of another co-accused’s statement, thus no unqualified right to participate in a voir dire to determine the admissibility of that statement: Richards, at para 80