Focus On

Evidence - Admissibility - Prejudicial evidence - Confessions and statements by the accused - Voluntariness

Thursday, November 17, 2016 @ 7:00 PM  


Appeal by the Crown from the respondent’s acquittal on a charge of arson. The appellant had entered a police station stating that he set fire to his mother’s house. During the course of a police interview, the respondent advised that he was homeless and wanted to go to jail. The police officer advised the respondent that arson was a serious offence, which may be punishable by imprisonment, and cautioned the respondent that anything he said to the officer could be used in evidence. The officer also repeatedly suggested to the respondent that he obtain legal advice. After finally agreeing to speak to duty counsel and obtaining legal advice, the respondent proceeded to give a statement implicating himself in the fire that had destroyed his mother’s house. The trial judge found that a combination of oppressive conditions and inducement rendered the confession involuntary. The trial judge concluded that the officer had induced the respondent to confess through presenting the quid pro quo of jail in return for a confession, given the respondent’s stated desire to find shelter. The trial judge found that the fact that the respondent was homeless and in desperate need of shelter meant that he was suffering under oppressive conditions. The Crown argued that the trial judge erred in finding that the statement was involuntary and that the trial judge misapplied the law regarding the issues of inducement and oppression.

HELD: Appeal allowed. New trial ordered. The trial judge erred in finding that the respondent’s statement to the police was involuntary. There was no inducement. There was no nexus between the promise and the confession, as the respondent came to the police detachment with the express purpose of confessing to the arson. He made his intentions known to the administrative assistant before speaking to the officer. The act of supplying accurate factual information to an accused did not constitute an inducement. The officer had a duty to provide information to the respondent regarding his potential jeopardy. The officer was not actively seeking to elicit a confession but repeatedly advised the respondent to seek counsel, told him he was free to leave at any time, and made clear the seriousness of the situation. There was no basis for the trial judge to conclude that the respondent was oppressed by the police while at the detachment. Considering the trial judge’s finding that the conduct of the police was unimpeachable and blameless, it was not possible that oppression was a factor. While the respondent’s inner compulsion might have led to his confession, there was nothing in the conduct of the police that would render the statement involuntary. The trial judge’s ruling demonstrated that she conflated her role on the voir dire of determining whether the statement was voluntary with her role at trial of determining if the statement was reliable. By conflating the two exercises, the trial judge considered the ultimate reliability of the statement without the benefit of the rest of the evidence.