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Exploring Statements and Confessions
• Charter rights
• confessions rule
What’s the difference between a statement and a confession?
Statement: Any verbal communication that might implicate a suspect’s involvement in a crime. (Saying, “I always hated that guy!” or “I wasn’t even there that night!” when it is not public knowledge that the crime took place at night.) Confession: A full admission of all material facts that are necessary to prove each element of the offence and any partial admission of one or more of the material facts that assists in proving the accused’s guilt.
Right to Remain Silent Established under the Charter of Rights and Freedoms, Legal Rights, section 11(c) s. 11. Any person charged with an offence has the right:
c) not to be compelled to be a witness in proceedings against that person in respect of the offence
The Right to Remain Silent is Not Iron Clad! In November of 2007, the Supreme Court ruled 5-4 against the appeal from Jagrup Singh of his 2002 conviction for second-degree murder. The case revolved around the question of whether police breached Singh's right to remain silent when they persisted in questioning him about a shooting, even though he repeatedly made it clear that he didn't want to talk. Justice Louise Charron wrote in her majority opinion: “It is not appropriate to impose a rigid requirement that police refrain from questioning a detainee who states that he or she does not wish to speak to police.” In other words, a citizen can exercise his right to remain silent, but that doesn’t mean that the state can’t try to change that citizen’s mind!
Paul Cooper’s Advice DO NOT Provide any statements! A statement is anything that you say whether it's recorded, written, or signed by you or not. Even if you exert your right to silence please note that the police are not under any obligation to stop asking questions. Anything you want to say at this point in time can wait and be discussed under the protection of solicitor-client privilege, when you are out of custody and in the lawyer's office. It is our professional advice that it is in your best interests not to say anything to the police regarding any information pertaining to your situation, even if it seems like harmless small talk. Bottom Line...DO NOT TALK.
DO NOT Participate in Line-ups without legal advice! Line-ups are a Police tool used to obtain potential evidence against you. People get suckered into believing that somehow this will exclude them from further investigation. More often than not, it ends up being the final piece of evidence which in fact convicts them. There are numerous cases of wrongful convictions because of unfair lines-ups. Don't be the next. Before agreeing or refusing to partake in any line-up, contact a lawyer.
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DO NOT Participate in Polygraphs! Polygraphs are never admissible, BUT what is said during a polygraph may be considered a valid statement and is possibly admissible against you. Polygraphs are used as a Police tool and though the scientific outcome of the test may be "inconclusive" it may be a way for the officers to spark up further conversation. Polygraphs, similar to line-ups, are presented by the Police as a way of excluding yourself from further investigation, but its real purpose is just the contrary. Be aware of all Police tactics.
Good cop, baby cop. The Hangover
Police Interrogation: Fun and games in film and television
The Fifth Estate: The Interrogation Room
Stan Walters: Poor Interrogation Techniques
The Reid Technique: Not so fun in real life The Confessions Rule Established in English case law, the definitive statement of this rule of law came in Ibrahim v. The King, [1914] A.C. 599 (P.C.), at p. 609: It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. Twin Goals of the Confessions Rule: i. protecting rights of accused ii. without unduly limiting society's need to investigate and solve crimes
Defence lawyers critical of 'Mr. Big' police stings December 27, 2006
An undercover police tac0c that played a key role in the recent convic0on of George Allen is being ques0oned by defence lawyers. The "Mr. Big" scenario — where officers pose as members of criminal organiza0ons to gain apparent confessions to crimes — was a crucial element in the first-‐degree murder convic0on of George Allen in Edmonton on Dec. 21. In a videotape played at Allen's murder trial, Allen describes to undercover police officers pretending to be underworld figures how he killed his friend Garry McGrath. AMer his arrest, Allen said it was really a case of self-‐defence, but he was trying not to look like a wimp to people he thought were criminals. The jury didn't accept his explana0on and convicted Allen of first-‐degree murder. Ed O'Neill, who speaks for the Criminal Trial Lawyers Associa0on in Edmonton, said evidence gathered this way shouldn't be admiTed in court. "There is a real danger that the accused individual may have lied to the undercover operator, and what you have is a false confession.“
RCMP Sgt. Al HasleT pioneered the Mr. Big scenarios in Bri0sh Columbia in the 1990s. It has since been used in other provinces, and HasleT has taught the scenario to police as far away as Australia. In a Mr. Big s0ng, undercover officers present themselves as members of a criminal organiza0on to someone suspected of commi[ng a crime. Eventually, they introduce the suspect to the fake head of the supposed crime syndicate in order to secretly videotape an apparent confession.
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Not considered entrapment: law professor Steven Penney, who teaches criminal law at the University of Alberta, said the tac0c isn't considered entrapment, because the police aren't commi[ng crimes or inducing the suspect commit a crime. "Outside the context of custody, police are preTy much unrestricted in their ability to set up these kinds of elaborate opera0ons to cul0vate a suspect's trust and get them to make incrimina0ng statements." Penney said the police know the informa0on can be unreliable, so they are looking for more than a confession. "You might expect someone to brag or boast perhaps untruthfully about their criminal past in order to gain credibility in this kind environment. What police are looking for, knowing that, is informa0on that can be corroborated.“ That might be details only the suspect could know or informa0on that leads to evidence such as a weapon or drugs. O'Neill said there have been aTempts to have cases such as Allen's heard by the Supreme Court, but so far, they have failed, though he expects more appeals.
Before a statement (made by an accused to a person in authority) can be used for any purpose at trial, the Canadian confessions rule requires the Crown to prove beyond a reasonable doubt that the statement was made voluntarily. Historically, the two rationales for the voluntariness rule were: i) to exclude unreliable confessions from evidence, and ii) to prevent prosecutorial agents from compelling self-
incrimination from an accused. This rule was reinforced in by the Supreme Court in R. v. Oickle, 2000.
How does the Confessions Rule differs from Charter rights?
The confessions rule and the Charter rights differ in three respects:
1. The confessions rule has a broader scope of application than the Charter.
The confessions rule applies whenever a person in authority questions a suspect. However, s. 11 of the Charter, for example, applies only on “arrest or detention.”
2. The burden and standard of proof is different.
Under the confessions rule the burden is on the prosecution to show beyond a reasonable doubt that the confession was voluntary.
However, under the Charter the burden is on the accused to show, on a balance of probabilities, that a violation of the defendant’s constitutional rights has occurred.
3. The remedies are different.
A violation of the confessions rule always warrants exclusion of the confession. However, a violation of a Charter right warrants exclusion only if the admitting evidence would bring the administration of justice into disrepute.
Group Activity Students will form into four groups in order to examine the case of R. v. Oickle, 2000 (SCC). The groups will each examine this judgment to find clarification on a particular aspect of case law relating to the admissibility of confessions under the "Confessions Rule.” The groups will demonstrate these elements within a brief dramatic presentation.
Group Issue Reference (R. v. Oickle)
1 Threats or promises (paras. 48-‐57) 2 Oppression (paras. 58-‐62) 3 Operating mind (paras. 63-‐64) 4 Police trickery (paras. 65-‐67)
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R. v. Oickle, 2000 (SCC). Threats or promises (paras. 48-57) In summary, courts must remember that the police may often offer some kind of inducement to the suspect to obtain a confession. Few suspects will spontaneously confess to a crime. In the vast majority of cases, the police will have to somehow convince the suspect that it is in his or her best interests to confess. This becomes improper only when the inducements, whether standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne.
Oppression, (paras. 60) Under inhumane conditions, one can hardly be surprised if a suspect confesses purely out of a desire to escape those conditions. Such a confession is not voluntary.
Operating Mind A third component of the voluntariness inquiry identified in Oickle is the operating mind test. Confessions are involuntary when they are elicited from suspects who lack an operating mind in the sense that they do not know what they are saying or that they are saying it to police who may use it against them. Confessions from injured or hypnotized suspects, for example, can be excluded on this basis.
The Operating Mind Doctrine The operating mind doctrine requires that the accused knows what he is saying and that it may be used to his detriment. Like oppression, the operating mind doctrine should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule. The operating mind doctrine is just one application of the general rule that involuntary confessions are inadmissible.
Police Trickery: The authorities, in dealing with shrewd and often sophisticated criminals, must sometimes of necessity resort to tricks or other forms of deceit and should not through the rule be hampered in their work. What should be repressed vigorously is conduct on their part that shocks the community.