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Supreme Court of Canada

Criminal law—Admissibility of confession—Whether disguised police officer a “person in authority”—Whether confession voluntary—Voir dire.

The appellant was charged with possession of cannabis resin for the purpose of trafficking. The issue before the Court concerns the admissibility of a confession which the Crown sought to put in evidence at trial. The appellant was arrested, given a police warning and prior to being lodged in a cell, was asked if he would give a statement, and he declined to do so. Hours later, a constable acting in an undercover capacity was placed in the same cell in order to obtain information from the appellant. He did not identify himself as a police officer and the appellant did not appear to recognize him as such. The officer told the appellant he was a truck driver, detained for a traffic violation. During a conversation the appellant made a statement to the officer which the Crown attempted to introduce in evidence.

After a voir dire, the trial judge ruled that in the circumstances the undercover policeman was a “person in authority”, that the statement had been improperly elicited, and was therefore inadmissible.

A majority of the Court of Appeal disagreed with the trial judge and ordered a new trial.

Held (Laskin C.J. and Estey J. dissenting): The appeal should be dismissed.

Per Martland, Ritchie, Dickson, Beetz, Mclntyre and Chouinard JJ.: This case should be decided in the context of the special rules which have evolved in respect of evidence which has been obtained by way of a confession. The principle applicable is that no statement made by an accused person to a person in authority is admissible in evidence against him unless it is shown 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.

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The first issue is whether the constable was a “person in authority”. Both parties agreed that the test to be applied is a subjective test, i.e. did the appellant, when he made his statement, believe that the constable was a person in authority. There is no evidence whatever that the appellant believed the constable to be a person in authority. The confession is therefore in the same position as if it had been made to someone other than a police officer and it was an error of law to refuse to receive it. The privilege against self incrimination is not relevant in the circumstances of this case, for there was no attempt by anyone to compel the appellant to make the disclosure which he did make.

The second issue is whether the confession, even on the assumption that the constable was a person in authority, was voluntary. Confessions can be excluded, although there had been no fear of prejudice or hope of advantage held out by a person in authority, where there exists a reasonable doubt as to whether the confession in question was “the utterance of an operating mind”. There is no allegation here that the mind of the accused was affected by the actions of the police officer. His statement was made freely and it was volunteered by him.

Per Lamer J.: The confession rule is predicated upon a rule of law and one of prudence: the right for an accused not to be compelled as a witness at his trial, and the protection of the criminal justice system.

The rules regarding the admissibility of statements by an accused to persons in authority may be enunciated in the following manner:

1. A statement is inadmissible unless the judge is satisfied beyond a reasonable doubt that nothing said or done by any person in authority could have induced the accused to make a statement which was or might be untrue;

2. A statement, though elicited under circumstances which would not render it inadmissible, shall nevertheless be excluded if its use in the proceedings would, as a result of what was said or done by any person in authority in eliciting the statement, bring the administration of justice into disrepute.

That second portion of the rule is not a true discretion. There first must be a clear connection between the obtaining of the statement and the conduct; furthermore that conduct must be so shocking as to justify the judicial branch of the criminal justice system in feeling that, short of disassociating itself from such conduct through rejection of the statement, its reputation and, as a result, that of the whole criminal justice system, would be brought into disrepute. The authorities, in dealing with shrewd and often sophisticated criminals, must

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sometimes for necessity resort to tricks or other means 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. But pretending, as in this case, to be a truck driver to secure the conviction of a trafficker would not shock the community.

Per Laskin C.J. and Estey J., dissenting: The basic reason for the exclusionary confession rule is a concern for the integrity of the criminal justice system. The support and respect of the community for that system can only be maintained if persons in authority conduct themselves in a way that does not bring the administration of justice into disrepute. In the realm of confessions, this standard of conduct is reflected in the requirement that an accused’s statement be given “voluntarily”.

Where the speaker has, as here, already refused to give a statement to the authorities, the test of voluntariness must include an appreciation of the circumstances in which the statement is made, including an awareness that his statement is being “volunteered” to a person in authority. To apply the rule otherwise in a case such as this one would not merely permit but would encourage the deliberate circumvention by the authority of the accused’s announced exercise of his right not to give a statement to the authorities. Here the accused had taken the position he did not wish to give a statement to the police. The police then, by a ruse, subverted that wish and thus the accused made his statement after he thought he had established that he was not, in fact, talking to a person in authority. Such a determined subversion by the police of an expressed right to refuse to make any statement brings the administration of justice into disrepute. Accordingly, such a statement given in these circumstances cannot get over the hurdle of the exclusionary rule.

[Ibrahim v. The King, [1914] A.C. 599; Boudreau v. The King, [1949] S.C.R. 262; R. v. Fitton, [1956] S.C.R. 958, revising [1956] O.R. 696; Marcoux and Solomon v. The Queen, [1976] 1 S.C.R. 763; Piché v. The Queen, [1971] S.C.R. 23; Ward v. The Queen, [1979] 2 S.C.R. 30; Horvath v. The Queen, [1979] 2 S.C.R. 376; Nagotcha v. The Queen, [1980] 1 S.C.R. 714; Alward and Mooney v. The Queen, [1978] 1 S.C.R. 559; R. v. McLeod (1968), 5 C.R.N.S. 101]

APPEAL from a judgment of the Court of Appeal for Ontario[1], allowing the appeal by the

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Crown from an acquittal and ordering a new trial. Appeal dismissed, Laskin C.J. and Estey J. dissenting.

Scott T. Milloy, for the appellant.

E.G. Ewaschuk, Q.C., and J.A. Pethes, for the respondent.

The reasons of Laskin C.J. and Estey J. were delivered by

ESTEY J. (dissenting)—I have had the benefit of reading judgments proposed by my colleagues Martland and Lamer JJ. but for reasons which I will attempt to set out shortly, I have, with respect, reached the opposite conclusion and therefore I would propose that the appeal be allowed, the order of the Court of Appeal set aside and the acquittal in the trial court restored. The facts having been set out by my colleagues, I can largely confine my remarks to an explanation of how I have reached the conclusion I propose.

This appeal raises a question as to the admissibility of a statement made by an accused to a person in authority. The statement was obtained in circumstances outlined in the statement of facts in the appellant’s factum to which the respondent agreed:

3. The Respondent [accused] was given a police warning and was then conveyed to the Ottawa City Police Station at 60 Waller Street along with Bonner and Hrehoriak. Prior to being lodged in a cell, Constable Gervais asked the Respondent if he was willing to give a statement but he declined to do so. The Respondent was later removed from the cell, charged with possession of hashish for the purposes of trafficking and returned to the same cell.

On the next day the police obtained a statement and again the circumstances in which it was obtained are described in the appellant’s statement of facts, accepted by the respondent:

4. On November 10, 1976 at approximately 1:00 a.m., Constable McKnight, a member of the Ottawa City Police Force acting in an undercover capacity, was placed in an 8’ x 8’ cell at the Ottawa City Police Station occupied by the Respondent alone. Constable McKnight was placed in the cell on the instructions of Constable Gervais, the investigating officer, in order to obtain information from the Respondent concern-

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ing the charge against him. …At that time, Constable McKnight was unarmed, wore blue jeans, a blue jacket and brown boots, and had a four or five day growth of beard.

5. Upon entering the cell, the Respondent spoke first to Constable McKnight by saying that Constable McKnight “looked like a nark”. Constable McKnight just laughed and the Respondent continued that he looked like a nark because of the way he was dressed. Constable McKnight explained that he was dressed like that because he had been fishing. The Respondent then asked Constable McKnight why he was in jail and he replied that it was because of a traffic ticket. During the conversation, Constable McKnight informed the Respondent that he was a truck driver from the Pembroke area and had been fishing so the Respondent would have the impression that he was not a nark and that he did not know much about drugs. Constable McKnight indicated that people in the Pembroke area were interested in drugs and that he would be interested in getting drugs; however, no deal was set up. The Respondent asked Constable McKnight when he would be getting out and he replied that a buddy would be coming down to pay the fine…

Therefore, it is not in dispute that the accused was unaware that he was speaking to an undercover policeman and that the policeman had deceived the accused by making false statements concerning his identity, including a denial that he was a police officer. In the result, the statement was given by the accused after his arrest, and after he had been given a warning by the police and had refused to give any statement to the police. In the face of this express election in the presence of a uniformed policeman by the accused to remain silent, the police then employed a trick and lies to obtain the statement now in issue. There is no question that when the accused announced his unwillingness to give a statement, he was aware that he was communicating his decision to remain silent to a person in authority, namely a police officer. The question is, therefore, whether or not a statement obtained thereafter by the police from the accused in these circumstances is admissible within the confession rules.

The terms “confession” and “admission” have caused considerable confusion in the law of evidence and in the criminal law generally for the

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past two centuries. We have not consistently defined “a confession” in precise terms nor has it been related to the other term “an admission”. Indeed the words are sometimes used interchangeably. Sometimes it would appear that a confession is but one species of an admission. Wigmore says that in earlier times a confession was:

…an acknowledgement in express words by the accused in a criminal case of the truth of the guilty fact charged or some essential part of it.

3 Wigmore, Evidence (1970), paragraph 821.

An admission is by that learned author defined as a statement “made out of court by a party‑opponent”: 4 Wigmore, supra, paragraph 1048. Some authors in earlier times went further and used “confession” to describe a statement which admits the guilt of the accused completely as charged and opined that anything short of that is included in the term “admission”. This of course led to considerable confusion as to the application of the strict admissibility rules as they developed for confessions. In those times a distinction was made in defining a confession between exculpatory and inculpatory statements. For our purposes this distinction came to an end in the statement of Hall J. in Pichê v. The Queen[2] at p. 36:

In my view the time is opportune for this Court to say that the admission in evidence of all statements made by an accused to persons in authority, whether inculpatory or exculpatory, is governed by the same rule and thus put to an end the continuing controversy and necessary evaluation by trial judges of every such statement which the Crown proposes to use in chief or on cross-examination as either being inculpatory or exculpatory.

The distinction between these terms, “confession” and “admission”, was also discussed in Commissioners of Customs and Excise v. Harz et al.[3] where Lord Reid, at pp. 817-8 stated:

Then it was argued that there is a difference between confessions and admissions which fall short of a full confession. A difference of that kind appears to be recognised in some other countries. In India and Ceylon

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legislative enactments severely limit the admissibility of confessions, and the courts have construed these enactments as not preventing the admission in evidence of other incriminating statements obtained by fair means though not in the manner required for confessions. And for some reason not made clear in argument some such distinction appears to be recognised at least in some states in the United States. But there appears to be no English case for more than a century in which an admission induced by a threat or promise has been admitted in evidence where a full confession would have been excluded. If such a case had occurred since appeal to the Court of Criminal Appeal became possible I find it very difficult to believe that there would not have been an appeal. I can see no justification in principle for the distinction. In similar circumstances one man induced by a threat makes a full confession and another induced by the same threat makes one or more incriminating admissions. Unless the law is to be reduced to a mere collection of unrelated rules, I see no distinction between these cases.

The learned authors of Phipson on Evidence (12th ed., 1976) state at paragraph 671:

In criminal cases statements made out of court by an accused are similarly admissible against him though they are subject to special conditions of admissibility if made to a person in authority, and are then usually called “confessions”.

Gradually, the law has developed so as to carve out of the general field of admissions those statements made by an accused to a person in authority; these are referred to as confessions and it is to these that special rules for admissibility at trial apply.

The rules of evidence in criminal law, and indeed in civil law, are all concerned with relevancy, reliability and fairness as well as other considerations such as the reasonable economy and efficiency of trial. The rules with reference to confessions have an additional element, namely the concern of the public for the integrity of the system of the administration of justice. If the reliability of an accused’s statements were the only consideration in determining their admissibility the courts would not have adopted distinctive principles applicable only to statements to persons in

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authority and not to statements against interest generally. Reliability cannot be the ticket for admission because statements may have enough of the appearance of reliability to ensure reference to the trier of fact but still have been excluded by the confession standard. In Piché, supra, the statement sought to be introduced by the Crown was one which was professedly false but which was sought to be introduced to contest the credibility of the accused. The statement was exculpatory in nature and the Crown was required to prove that such a prior inconsistent statement was voluntary. Cartwright C.J. stated at p. 26:

It appears to me to involve a strange method of reasoning to say that an involuntary statement harmful to the accused’s defence shall be excluded because of the danger of its being untrue but that a harmful involuntary statement, of which there is not merely a danger of its being false but which the prosecution asserts to be false, should be admitted merely because, considered in isolation, it is on its face exculpatory.

The matter is carried further in an earlier discussion in this Court in DeClercq v. The Queen[4] where Cartwright C.J., at p. 906, stated:

While the reason for the rule is said to be the danger that a confession, the making of which has been induced by threats or promises made by a person in authority, may well be untrue, it must now, I think, be regarded as settled that when an inquiry is held during the course of a trial as to the admissibility of an inculpatory statement sought to be introduced by the Crown, the question to be determined is whether or not the statement was voluntary and not whether or not it is true.

Martland J. added at p. 911:

…it is settled law that an inculpatory statement by an accused is not admissible against him unless it is voluntary, and. the inquiry on a voir dire is directed to that issue, and not to the truth of the statement…

Why then is the standard of ‘voluntariness’ and not ‘truth’ adopted by the law? Confessions have doubtless been suspect from the earliest times by those interested in the administration of justice. Torture and other forms of violence no doubt have brought about confessions, and the disallowance of their admissibility was perhaps one of the meas-

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ures adopted to eliminate these practices. Many reasons come to mind at once for the rejection of such statements: the statement may be untrue; the statement might be incomplete; and the obtaining of such a statement infringes the accused’s right to remain silent. It may be that the adoption and continuance of the confession rules are a deep-seated recognition by the courts of the need to apply, in the conduct of criminal trials, principles which will command the respect and hence the support of the public for the system of criminal justice. Certainly without such acceptance and support the system would not survive. Chief Justice Freedman discussed the presence of the exclusionary rule in our law in his learned article “Admissions and Confessions” reproduced in Salhany and Carter, Studies in Canadian Criminal Evidence, (1972), c. 4. He observed that the rejection of a confession brought about by threats and beatings would find its basis not in the rules concerning persons in authority but may arise out of “…discretionary power to consider the broad question of public policy in the administration of criminal justice”, (at p. 120). Earlier, at p. 99, the learned Chief Justice stated:

Undoubtedly, as already stated, the main reason for excluding them is the danger that they may be untrue. But there are other reasons, stoutly disclaimed by some judges, openly professed by others, and silently acknowledged by still others—the last perhaps being an instance of an “inarticulate major premise” playing its role in decision-making. These reasons, all of them, are rooted in history. They are touched with memories of torture and the rack, they are bound up with the cause of individual freedom, and they reflect a deep concern for the integrity of the judicial process.

See as well 8 Wigmore, Evidence, 3rd ed., paragraph 2251.

The roots of the confession rules have been examined by writers in the United States. In his text on Evidence of Guilt, (1959), Professor Maguire observed at p. 109:

[T]wo obvious reasons appear for caution in receiving evidence of confessions:

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First, and most commonly invoked, the fear that an “involuntary” confession of guilt may be untrue.

Second, determination to hold public authorities up to a humane and honourable standard of conduct in treatment of persons suspected or accused. While not at all inconsistent with the first reason, this second reason may operate entirely independently of any risk that a particular confession is tainted with untruth.

To similar effect see Allen, “Due Process and State Criminal Procedures: Another Look” (1953), 48 Nw.U.L. Rev. 16, at p. 19.

This Court was faced in Horvath v. The Queen[5], with the question of admissibility of a confession and in discussing the general nature of confessions in the law our brother Beetz J. stated (at p. 433):

Apart from the untrustworthiness of confessions extorted by threats or promises, other policy reasons have also been advanced to explain the rejection of confessions improperly obtained. But the basic reason is the accused’s absolute right to remain silent either completely or partially and not to incriminate himself unless he wants to. This is why it is important that the accused understand what is at stake in the procedure.

This additional consideration connotes a recognition by the courts since the earliest times of the desirability and indeed the necessity of adopting a system of principles in the administration of justice which will be accepted by and command the support of the community. Thus it can be said that confessions are not admissible where to admit them would bring the administration of justice into disrepute, or, to put it another way, would prejudice the public interest in the integrity of the judicial process.

All of this can be found in different shades and hues in the authorities, commencing with Ibrahim v. The King[6], which lays down the principle that to be admissible in a court of law, a statement by an accused must be voluntary, that is to say it must

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not have been induced by fear of prejudice or hope of advantage. The prescription that a confession to be admissible must be voluntary is not limited to the examples set out in Ibrahim, supra. In Horvath, supra, Spence J. held (at p. 402):

Although many courts seem to have done so, I do not regard such an authority as Ibrahim as indicating that the natural meaning of the word “voluntary” should be confined to cases of hope of advantage or fear of prejudice.

He continued (at pp. 409-10):

The requirement to establish the admissibility at trial of a statement made by an accused person to persons in authority has been oft cited as simply that it is free and voluntary. Those are both ordinary English words and I think mean roughly the same thing. The Shorter Oxford English Dictionary defines “voluntary” as “arising or developing in the mind without external constraint…; of actions: performed or done of one’s own free will, impulse, or choice; not constrained, prompted, or suggested by another”.

In the same case, Beetz J. noted (at p. 424):

The question arises as to whether the enumeration in the rule of instances of involuntariness is a limitative one.

It cannot be limitative since the rule is a judge-made rule and anything said by a judge beyond what is necessary to decide the issue is obiter. Furthermore, the principle which inspires the rule remains a positive one; it is the principle of voluntariness.

The principle itself, of course, requires (and this is an absolute requisite) that the statement in fact be made to a person in authority; and if this qualification is not met, then it matters not whether the person is known to the accused to be one in authority. This is because the principle adopted for the protection of the integrity of the administration of justice is founded upon the realization that persons in authority, instrumentalities of the State, must observe certain basic rules. This is so for the practical reason that their very authority might, by promise or threat, express or implied, produce a statement whether or not the accused was truly

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willing to speak, and on occasion might bring about statements which are in whole or in part untrue. It is also necessary to adopt these basic rules for the higher reason that ethical precepts are a vital ingredient in a system of justice if it is to command the respect and support of the community it serves, particularly in a judicial structure which embraces the concept of the jury. In this appeal the first encounter of significance was with a person in authority; that is, the authority to whom the accused communicated his decision or election not to give a statement. It is that incident which, in the circumstances here concerned, started the process which, in my view, leads to the exclusion of the statements thereafter obtained by the authorities.

The analysis need go but one step further. To be voluntary a statement must be volunteered by the speaker in the sense that the statement must be the product of a conscious volens on the part of the speaker. The volens must relate not only to the mechanics of speaking, that is the articulation of the ideas of the speaker. Where the speaker has, as here, already refused to give a statement to the authorities, the test of voluntariness must include an appreciation of the circumstances in which the statement is made, including an awareness that his statement is being ‘volunteered’ to a person in authority. To apply the rule otherwise in the circumstances we have here would not merely permit but would encourage the deliberate circumvention by the authority of the accused’s announced exercise of his right not to give a statement to the authorities. This idea is taken up by Rand J. in R. v. Fitton[7] at p. 963:

Even the word “voluntary” is open to question; in what case can it be said that the statement is not voluntary in the sense that it is the expression of a choice, that it is willed to be made? But it is the character of the influence of idea or feeling behind that act of willing and its source which the rule seizes upon.

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The matter is carried further by Spence J. speaking for the entire Court in Ward v. The Queen[8], at p. 40:

In my view, there is a further investigation of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found in consideration of the mental condition of the accused at the time he made the statements to determine whether or not the statements represented the operating mind of the accused.

If this latter element is not included, then the meaning of voluntariness is reduced to a concern for the simple articulation of the words of the statement by the accused speaker. I can find no authority for such an arbitrary and destructive reduction of the degree of voluntariness required by the basic principle illustrated by Ibrahim, supra, literally applied. Indeed, as I view the sequence of events here, the statement is properly excluded on the simple application of the principle revealed in Horvath and Ward, supra, to the facts of this case.

On the facts before us here the authority went to some pains to ensure that the accused, when making his statement, did not know it was being made to a person in authority. As I have observed, he had earlier refused to give a statement to the police. I do not go on and deal with any other set of facts, such as a situation where the accused ought to have known the hearer was a person in authority within the meaning of that term in the law, or had not earlier declined to give a statement. We are concerned here with the fact that the statement was made by a person under charge to a person in authority masquerading as something else, and after the hearer has explicitly disavowed any such status in order to allay the suspicions of an accused who had already expressed a desire not to make a statement to the police.

It is not necessary to trace the origin of the special rules applicable to statements by an accused to a person in authority. If indeed these rules emanate from a desire on the part of the courts and the community to adopt policies which will ensure a fair, impartial and reputable administration of justice, then we need proceed no further.

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On the other hand, it has been said that the principles surrounding the admissibility of a confession emanate from a right to silence on the part of the accused under our jurisprudence. The accused, of course, need not testify. He cannot be compelled to do so and his exercised right to silence may not be the subject of commentary by the Crown before the jury (Canada Evidence Act, R.S.C. 1970, c. E-10, s. 4(5)). On the other hand, if the accused elects, for whatever reason, to enter the witness box, he is on the same footing as any other witness. He may be cross-examined on anything deemed relevant by the court. By statutory intervention (s. 5(2) of the Canada Evidence Act, supra,) that which the accused says in the witness box may not be used against him in any other proceedings. But, of course, so far as the principal trial is concerned the section has no application. The right in the accused, in my view, to elect not to testify in the trial of a charge laid against him is one of the fundamental elements of our criminal jurisprudence ranking with the presumption of innocence and the onus on the Crown to establish guilt beyond a reasonable doubt according to law. His right to silence arises not because he is a witness but because he is an accused. Indeed, as Dickson J. said in Marcoux and Solomon v. The Queen[9] at p. 769, the accused has no such right with reference to any question deemed to be relevant by a court once he enters the witness box. Professor Glanville Williams, in The Proof of Guilt, (2nd ed., 1958), puts it this way (at pp. 37‑8):

According to the rule, neither the judge nor the prosecution is entitled at any stage to question the accused unless he chooses to give evidence. “At the common law,” says Blackstone, “nemo tenebatur prodere seipsum: and his fault was not [to] be wrung out of himself, but rather to be discovered by other means and other men.” This rule may be called the accused’s right not to be questioned; in America it is termed the privilege against self-incrimination. The latter expression is more apt as the name for another rule, the privilege of any witness to refuse to answer an incriminating question; this is different from the rule under discussion, which, applying only to persons accused of crime, prevents the question from being asked. The person charged

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with crime has not merely the liberty to refuse to answer a question incriminating himself; he is freed even from the embarrassment of being asked the question. The privilege against self-incrimination, as applied to witnesses generally, must be expressly claimed by the witness when the question is put to him in the box; whereas the accused’s freedom from being questioned prevents the prosecution from asking (much less compelling) him to enter the box, and from addressing questions to him in the dock. [Underlining added]

The question naturally follows: should the accused’s out-of-court statements be admissible in court on the same basis? That is, if made to a person in authority, must that statement be a voluntary statement (as earlier described), consciously made to that person in circumstances which make it evident that the accused intended it to be testimony in open court or to be capable of being put to such use; or under circumstances which will not bring the administration of justice into disrepute? This question as it arises here relates only to those statements made to and not merely in the presence of a person in authority, intended to be given to that particular person, made after an election to remain silent, and when made in the circumstances already described. It surely follows that if our law continues to recognize the right of an accused not to enter the witness box under compulsion, his indirect testimony in the form of out-of-court statements to a person in authority should not be admissible on a basis which, following his invocation of the right to silence, undermines or defeats the right not to testify. One author has put the idea this way:

…if there are reasons for not compelling an accused to testify at trial, those reasons should also be considered in relation to statements given prior to trial.

Ratushny, Self-incrimination in the Canadian Criminal Process, 1979, at p. 97.

By this process of reasoning one can readily reconcile the Ibrahim rule with the underlying purposes for the special treatment accorded to confessions,

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being the overriding interest in the acceptance by the community of the system for the administration of justice. Thus the admission of a statement which has been induced by a person in authority in such a way that it might be untrue is but one illustration of conduct that would bring the administration of justice into disrepute; and hence such a statement is inadmissible. This principle has its application in any circumstance, whether or not one might conclude that the statement might be true, where the effect of the conduct of a person in authority is to remove the basic element of ‘voluntariness’. In short, the possibility or likelihood of the truth or untruth of a statement is but one element in the process of determining the voluntary nature of the statement in the full sense accorded to that expression in the authorities. I find the observations of Lord Diplock in R. v. Sang[10] at p. 436 appropriate to the circumstances of this appeal:

My Lords, I propose to exclude, as the certified question does, detailed consideration of the role of the trial judge in relation to confessions and evidence obtained from the defendant after commission of the offence that is tantamount to a confession. It has a long history dating back to the days before the existence of a disciplined police force, when a prisoner on a charge of felony could not be represented by counsel and was not entitled to give evidence in his own defence either to deny that he had made the confession, which was generally oral, or to deny that its contents were true. The underlying rationale of this branch of the criminal law, though it may originally have been based upon ensuring the reliability of confessions is, in my view, now to be found in the maxim nemo debet prodere se ipsum, no one can be required to be his own betrayer or in its popular English mistranslation “the right to silence.” That is why there is no discretion to exclude evidence discovered as the result of an illegal search but there is discretion to exclude evidence which the accused has been induced to produce voluntarily if the method of inducement was unfair.

Outside this limited field in which for historical reasons the function of the trial judge extended to imposing sanctions for improper conduct on the part of the prosecution before the commencement of the proceedings in inducing the accused by threats, favour or trickery to

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provide evidence against himself, your Lordships should, I think, make it clear that the function of the judge at a criminal trial as respects the admission of evidence is to ensure that the accused has a fair trial according to law.

The first determination to be made when the court is confronted with an out-of-court statement by this accused is whether his first statement, that is his refusal to talk to the police, was made to a person in authority. This act of the accused is an objective step and therefore depends not on the understanding of the accused alone but on the actual fact of the identity of the recipient of the statement. If the recipient be a person in authority as that term has been developed in the law, the next step is to determine, in all the circumstances which followed, whether the statement ultimately given (and which is tendered at trial) is voluntary in the full sense of that term. The elements which go into the determination of the voluntariness of that statement include all those circumstances which bear upon the overriding requirement that the admission of the statement will not render the administration of criminal justice unacceptable to the community. All this is in sharp contrast to the determination of the admissibility of a statement by an accused to a person not in authority. In that instance the presence or absence of threats, force, fear, hope, tricks, drugs, etc. go to weight and not to admissibility. It also calls for a different application of the principle than in the usual case where the accused has not, in prior confrontations with the authorities, declined to give a statement.

It has been said in considering the use of stratagems by persons in authority that

there appears to be at least some tendency [in Canadian courts] to consider the use of such tactics as one of the factors bearing on voluntariness.

“Developments in the Law—Confessions” (1966), 79 Harv. L. Rev. 935, at p. 1104.

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This is so in my view if the term “voluntariness” is there used in the full sense in which I have here used the term.

Davey C.J.B.C., in R. v. Frank[11], examines the status of statements procured or induced by lies told by the person in authority to the accused. In the end the Chief Justice found that their effect on “voluntariness” is measured according to whether or not the circumstances produced in the accused a hope of advantage or a fear of prejudice. In R. v. McLeod[12], the Court of Appeal rejected statements procured by “barefaced lies”. Laskin J.A. (as he then was) stated (at p. 104):

In so holding, I do not rule out as a matter of law all stratagems that the police or persons in authority may employ in questioning a person under arrest. The issue in every case, under the governing law, must be whether they operate or are calculated to operate upon the person to rouse hope of advantage or fear of prejudice, or by their oppressiveness (to borrow a term from the English Judges’ Rules) put in doubt at least whether any ensuing inculpatory statement has been properly elicited. In my view, reinforced by a reading of the whole record, the lies and associated incidents in this case had the forbidden effect in inducing the incriminating statement.

It remains essentially a decision of policy as to whether the accused must be aware he is making the statement to a person in authority before it may be admissible as a confession. On the facts here, that basic question in its broad form does not arise. Here the accused had taken the position that he did not wish to give a statement to the police. The police then, by a ruse, subverted that wish and thus the defendant made his statement after he thought he had established that he was not, in fact, talking to a person in authority. He did not intend, in such circumstances, to make a statement to a person in authority and thus the public authority cannot present the resulting statement as “voluntary” and therefore admissible under the confession rules. A different result might obtain where

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the accused by the clearest declaration revokes his earlier declared election not to give a statement to the authorities. In such a case the succeeding statement is subject to the test of voluntariness in the ordinary way.

Dubin J.A. in his dissent below refers to the refusal of the accused to give a statement to the authorities:

A singular feature in this case is that after arrest the accused was given a police warning and was asked if he was willing to give a statement. He declined to do so. At that stage, therefore, he had been advised not only that he need not make a statement to a police officer, but also that whatever he said would be taken down in writing and could be used in evidence against him at his trial. In refusing to make such a statement, he exercised his legal right.

I respectfully agree with these observations.

To summarize then:

a) The exclusionary confession rule applies to statements given before trial by an accused to persons in authority.

b) The basic reason for the rule is a concern for the integrity of the criminal justice system. Such a system necessarily requires the support and respect of the community it purports to serve. That support and respect can only be maintained if persons in. authority conduct themselves in a way that does not bring the administration of justice into disrepute in the community.

c) The rule and its administration strike a delicate balance between the need to secure the conviction of the guilty, but above all, the avoidance of the conviction of the innocent.

d) In the realm of confessions, this standard of conduct is reflected in the requirement that an accused’s statement be given “voluntarily”.

e) In this appeal, an expressed decision to remain silent was made by the accused to a policeman who was, in the mind of the

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accused as well as in fact, a person in authority.

f) The statement ultimately obtained and tendered in court was the product of a trick and lies by persons in authority, calculated to subvert the appellant’s expressed decision to stand mute.

g) Such a determined subversion by the police of an expressed right to refuse to make any statement brings the administration of justice into disrepute. Accordingly, such a statement given in these circumstances cannot get over the hurdle of the exclusionary rule.

h) This appeal is not concerned with the gathering of evidence by any other means nor with the circumstance where an accused has not announced to persons in authority that he did not wish to make a statement.

For these reasons I would allow the appeal and restore the acquittal at trial.

The judgment of Martland, Ritchie, Dickson, Beetz, Mclntyre and Chouinard JJ. was delivered by

MARTLAND J.—This is an appeal from a judgment of the Ontario Court of Appeal[13]. At trial the appellant was acquitted on a charge of possession of cannabis resin for the purpose of trafficking. The Court of Appeal allowed the Crown’s appeal and directed that a new trial be held. Dubin J.A. dissented.

The issue which is before this Court concerns the admissibility of a confession which the Crown sought to put in evidence at trial. An agreed statement of facts submitted by the parties to the Court of Appeal explains how the confession came to be made and how it was disposed of by the trial judge. The relevant portions of that statement are set out below:

On November 9, 1976 at approximately 2:30 p.m., Sergeant Woods and Constables Lauzon, Carvish and Gervais of the Ottawa Police Force conducted a search of apartment 1102, 1365 Bank Street in the City of

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Ottawa under the authority of a search warrant. On the premises at that time were Donal Bonner (D.O.B. 26/06/57), Timothy Hrehoriak (D.O.B. 24/12/60) and the Respondent (D.O.B. 21/12/45). The Respondent advised Constable Gervais that he lived on the premises along with one Nancy Olson. In one of the bedrooms, Sergeant Woods located 128.54 grams of hashish, a set of scales, a cutting knife and a box of tin foil. Upon analysis, the scales and knife were found to have traces of hashish.

The Respondent was given a police warning and was then conveyed to the Ottawa City Police Station at 60 Waller Street along with Bonner and Hrehoriak. Prior to being lodged in a cell, Constable Gervais asked the Respondent if he was willing to give a statement but he declined to do so. The Respondent was later removed from the cell, charged with possession of hashish for the purposes of trafficking and returned to the same cell.

On November 10, 1976 at approximately 1:00 a.m., Constable McKnight, a member of the Ottawa City Police Force acting in an undercover capacity, was placed in an 8’ x 8’ cell at the Ottawa City Police Station occupied by the Respondent alone. Constable McKnight was placed in the cell on the instructions of Constable Gervais, the investigating officer, in order to obtain information from the Respondent concerning the charge against him. During the trial, a voir dire was conducted on the question of whether Constable Earl McKnight was a person in authority. At that time, Constable McKnight was unarmed, wore blue jeans, a blue jacket and brown boots, and had a four or five day growth of beard. Constable McKnight testified on the voir dire that the Respondent appeared to be normal and not under the influence of alcohol. No other persons or police officers were visible from the cell. Constable McKnight did not identify himself to the Respondent as a member of the Ottawa City Police Force and the Respondent did not appear to recognize him as such.

Upon entering the cell, the Respondent spoke first to Constable McKnight by saying that Constable McKnight “looked like a nark”. Constable McKnight just laughed and the Respondent continued that he looked like a nark because of the way he was dressed. Constable McKnight explained that he was dressed like that because he had been fishing. The Respondent then asked Constable McKnight why he was in jail and he replied that it was because of a traffic ticket. Constable McKnight asked the Respondent why he was in jail and the Respondent stated that it was for possession of hashish. While in the cell, Constable McKnight sat beside the Respondent on the only bench. The Respondent then told Constable McKnight that he sold hashish

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for $25.00 for 3 grams, that the hash that he had been caught with had been “fronted” to him and that he would have to pay the people back $1,000 because he had been “busted”. The Respondent stated that he would have made $1,800 on the drugs that he had. Constable McKnight asked if there were many drugs in the City and the Respondent replied that there were approximately 40 pounds. The Respondent also stated that he was arrested at his apartment along with his buddy who was in the next cell. During the conversation, Constable McKnight informed the Respondent that he was a truck driver from the Pembroke area and had been fishing so the Respondent would have the impression that he was not a nark and that he did not know much about drugs. Constable McKnight indicated that people in the Pembroke area were interested in drugs and that he would be interested in getting drugs; however, no deal was set up. The Respondent asked Constable McKnight when he would be getting out and he replied that a buddy would be coming down to pay the fine. The Respondent stated that he had to go to court the next morning because he was on parole respecting other charges. Constable McKnight was released from the cell at 1:07 a.m. and made his notes concerning the conversation shortly thereafter.

After Constable McKnight testified on the voir dire the Respondent called no evidence on the issue of whether Constable McKnight was a person in authority.

After argument by counsel, His Honour Judge Matheson ruled that in all the circumstances, Constable McKnight was a person in authority.

No further evidence was called by the Crown on the voir dire on the issue of whether the statements made by the Respondent to Constable McKnight were voluntary. The Respondent did not request any other Crown witnesses to be produced for cross‑examination on the voir dire and did not call any evidence on this issue.

After argument by counsel, His Honour Judge Matheson ruled that the “continuation of the intent to obtain a statement by this disguise” puts into doubt whether the inculpatory statement had properly been elicited and was therefore inadmissible.

The Crown called no further evidence at trial and at the request of Crown Counsel and the direction of His Honour Judge Matheson, the jury returned a verdict of “not guilty” of possession.

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The majority of the Court of Appeal held that a new trial should be ordered. Jessup J.A. (Weatherston J.A. concurring) held that because the appellant did not consider the undercover officer to be “in authority”, the statement was not governed by the special rules relating to confessions. Jessup J.A. went on to say that even if the appellant had regarded Constable McKnight as being a person in authority, the conditions laid down in Ibrahim v. The King[14] as to the voluntariness of an accused’s statements had been met.

Dubin J.A., writing in dissent, was of the view that the trial judge was correct in excluding the statement and would have dismissed the appeal. He held that the basis of the confession rule was not merely concern over the truthfulness of the statement in issue and said that the rules respecting confessions and an accused person’s right to remain silent were related. It was his opinion that a trial judge had a discretion to exclude the confession because of the way in which it was obtained.

This case should be decided in the context of the special rules which have evolved in respect of evidence which has been obtained by way of a confession. In Phipson on Evidence, 12th ed., at p. 337, paragraph 792, the following passage appears:

The classic formulation of the principle applicable to the admissibility of confessions appears in Lord Sumner’s speech in Ibrahim v. R. ([1914] A.C. 599, 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 shown 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. The principle is as old as Hale”.

Lord Sumner’s statement was adopted in this Court in Boudreau v. The King[15] and in R. v. Fitton[16].

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The first issue to be determined is whether Constable McKnight was a “person in authority” because, except in the case of a statement made to a person in authority, a statement made by an accused against his own interest is admissible against him in criminal proceedings in the same way that it would be in civil proceedings and there are no special conditions requiring the Crown to prove that the statement was voluntary.

Both parties to this appeal agree that the test to be applied in determining this issue is a subjective test, i.e. did the appellant, when he made the statement to McKnight, believe that McKnight was a person in authority. The Court of Appeal agreed with the application of this test. Jessup J.A. said (at p. 380):

In my opinion the police officer in the present case was not a person in authority because he was not regarded as such by the respondent. As Kaufman J.A. says in Admissibility of Confessions in Criminal Matters, 2nd ed. (1974), at p. 54:

The true test, it is submitted, is highly subjective: Did the accused truly believe, at the time he made the declaration, that the person he dealt with had some degree of power over him? In other words, did the accused think that the person to whom he confessed (or as a result of whose intervention he confessed) could either make good his promise or carry out his threats? If so, such person should be treated as a person in authority and if not, the rules which attach to persons in authority need not be applied, even though the person, from a purely objective point of view, was in a position of undoubted authority.

A similar view is expressed by Freedman C.J.M. in Studies in Canadian Criminal Evidence (1972) at p. 118:

Suppose the policeman is garbed as a prisoner and is in fact thought by the accused to be a fellow prisoner. He is then not a person in authority. The test is apparently a subjective one. The court considers the effect of the inducement on the mind of the accused in the known circumstances. Based on the knowledge of the accused, was it reasonable for him to think that the person holding out the inducement had the power

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to implement his promise or carry out his threat, as the case may be? If the answer is in the affirmative—as it is likely to be where he is manifestly dealing with the police—the inducement will be deemed to have come from a person in authority. If the answer is in the negative—as in the case where the accused confesses to another prisoner, not knowing him to be a policeman—the inducement will be treated as not having come from a person in authority.

In taking this position, Jessup J.A. was in agreement with the decisions of four provincial courts of appeal in which a subjective test was applied: R. v. Pettipiece[17], R. v. Muisi (No. 1)[18], Metenko v. The Queen[19] and R. v. Stewart[20].

I agree with Jessup J.A. that a subjective test should be applied in the circumstances of this case. I also agree with his conclusion that McKnight was not a person in authority because he was not regarded as such by the appellant. There is no evidence whatever that, at the time the appellant revealed to McKnight that he was a dealer in drugs, he believed McKnight to be a police officer. The appellant did not give evidence on the voir dire and so he did not express any such belief. No evidence on the voir dire was given on his behalf. The appellant did say to McKnight when he first spoke to him that McKnight “looked like a nark”, but in the course of their conversation this suspicion was obviously dispelled. It is clear that he would not have made the admission which he did make to McKnight if he had believed that McKnight was a police officer, and that he made it because he believed McKnight to be a fellow prisoner.

Once it is accepted that the confession of the appellant was not made to a person in authority, it was properly admissible without any requirement for the Crown to establish that it was voluntary. The confession was in the same position as if it had been made to someone other than a police officer. In my opinion, it was an error of law to refuse to receive it.

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With great respect to the dissenting opinion of Dubin J.A., it is my view that the privilege against self-incrimination is not relevant in the circumstances of this case. The scope of the privilege against self-incrimination has been clearly defined by my brother Dickson in the case of Marcoux and Solomon v. The Queen[21] at pp. 768-9:

The limit of the privilege against self-incrimination is clear. The privilege is the privilege of a witness not to answer a question which may incriminate him. That is all that is meant by the Latin maxim, nemo tenetur seipsum accusare, often incorrectly advanced in support of a much broader proposition.

In short, the privilege extends to the accused qua witness and not qua accused, it is concerned with testimonial compulsion specifically and not with compulsion generally.

A claim for protection against self-incrimination can only arise where a tribunal or authority is seeking to compel an individual to disclose something which he does not wish to disclose. In the present case, there was no attempt by anyone to compel the appellant to make the disclosure which he did make. The information given by the appellant to McKnight was furnished by the appellant entirely on his own volition.

For these reasons, it is my opinion that this appeal should be dismissed. However, Jessup J.A. in his reasons went on to consider whether the appellant’s confession was properly admissible even on the assumption that McKnight was a person in authority. He concluded that it was admissible. This issue was fully argued before this Court and so I will express my opinion with regard to it.

At the outset, I would point out that the trial judge, in his ruling as to the admissibility of the confession, made the following findings:

In the instant case I am satisfied that what Rothman said to Const. Earl Grant McKnight, and I might add, who was acting in the performance of his duty, would seem to have been free of both fear and [sic] prejudice, and free as well of hope of advantage by reason of the

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facts that he had been mislead or tricked into believing that he was speaking to a person actually held in custody.

On these findings, the respondent had satisfied the requirements for the admission of the confession as stated in the Ibrahim case. The trial judge, however, refused to admit the confession because, he said:

However, in light of the facts of this particular case, I believe that continuation of the intent to obtain a statement by this disguise puts into doubt whether the inculpatory statement had been properly elicited, and I feel that in the circumstances that I must rule against admissibility herein.

It was not, in my opinion, a sufficient basis for the refusal of the trial judge to receive the confession in evidence solely because he disapproved of the method by which it was obtained. The issue in the case was as to whether the confession was voluntary.

I have already noted that this Court has accepted Lord Sumner’s statement in Ibrahim as to the test as to whether a confession is voluntary. In the Boudreau case, Rand J., in delivering his own judgment, referred to the Ibrahim case and said at pp. 269-70, in a statement which has been cited in this Court by Hall J. in Piché v. The Queen[22] at p. 37 and by Spence J. in Ward v. The Queen[23] at pp. 39-40:

The cases of Ibrahim v. Rex [1914] AC. 599, Rex v. Voisin (1918) 1 K.B. 531 and Rex v. Prosko 63 S.C.R. 226 lay it down that the fundamental question is whether the statement is voluntary. No doubt arrest and the presence of officers tend to arouse apprehension which a warning may or may not suffice to remove, and the rule is directed against the danger of improperly instigated or induced or coerced admissions. It is the doubt cast on the truth of the statement arising from the circumstances in which it is made that gives rise to the rule. What the statement should be is that of a man free in volition from the compulsions or inducements of authority and what is sought is assurance that that is the case. The underlying and controlling question then remains: is the statement freely and voluntarily made?

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This statement was construed by Pickup C.J.O., in R. v. Fitton[24] at pp. 714-5 in the following manner:

In my opinion, the Crown does not discharge the onus resting upon it by merely adducing oral testimony showing that an incriminating statement made by an accused person was not induced by a promise or by fear of prejudice or hope of advantage. That statement of the rule of law is too narrow. The admissions must not have been “improperly instigated or induced or coerced”: per Rand J. in Boudreau v. The King, supra, at p. 269. The admissions must be self-impelled, and the statement must be the statement of a man “free in volition from the compulsions or inducements of authority”. The statement must be “freely and voluntarily made”. Applying that principle to the particular facts in this case, I have reached the conclusion that the Crown has failed to show that the oral statement made by the appellant, or the written statement made by him immediately afterwards, was free and voluntary.

On the appeal in that case to this Court it was held that the decision of the Court in Boudreau did not extend in any way the rule laid down in Ibrahim and that it was still the law that a statement is admissible in evidence if it is shown that it was voluntary in the sense that it has not been obtained by fear or prejudice or the hope of advantage exercised or held out by a person in authority.

Rand J., at pp. 962-3, said:

The Chief Justice of Ontario, speaking for the majority of the Court of Appeal, has treated the expression “freely and voluntarily”, used in Boudreau v. The King, as if it connoted only a spontaneous statement, one unrelated to anything as cause or occasion in the conduct of the police officers; but with the greatest respect that is an erroneous interpretation of what was there said. The language quoted must be read primarily in the light of the matters that were being considered. As the opening words show, there was no intention of departing from the rule as laid down in the authorities mentioned; the phrase “free in volition from the compulsions or inducements of authority” (Boudreau v. The King, supra, at p. 269) means free from the compulsion of apprehension of prejudice and the inducement of hope for advantage, if an admission is or is not made. That fear or hope could be instigated, induced or coerced, all

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these terms referring to the element in the mind of the confessor which actuated or drew out the admission.

In an earlier passage at p. 962 he had said:

The rule on the admission of confessions, which, following the English authorities, was restated in Boudreau v. The King, at times presents difficulty of application because its terms tend to conceal underlying considerations material to a determination. The cases of torture, actual or threatened, or of unabashed promises are clear; perplexity arises when much more subtle elements must be evaluated. The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.

The admissibility of a confession was under consideration by this Court in two recent cases. In Horvath v. The Queen[25], the accused voluntarily underwent an interview by a police polygraph operator lasting for four hours. There was a taped transcript of what he said. During the interview, the police officer left the accused alone three times. During these intervals, the accused reflected aloud in what were called monologues or soliloquies. During the second monologue, the accused admitted killing his mother. After the second monologue, the accused repeated his confession to the police officer. In the third monologue, he asked his mother’s forgiveness for having disclosed the incident. Following that, the accused signed a written confession.

The trial judge accepted the opinion of a psychiatrist that up to the end of the second monologue the accused was in a light hypnotic state. He rejected the confession because the accused, for a sizeable part of the interview immediately prior to the confession, had been in an hypnotic state.

In this Court, three members of the seven-man panel supporting the judgment of the Court of

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Appeal for British Columbia held the confession to be admissible as the hypnotic state had ended before the written confession was made and there was no evidence that it had been obtained by fear of prejudice or hope of advantage. Two members of the majority held the confession to be inadmissible because, in all the circumstances, it was not free and voluntary. Spence J., at p. 408, said:

In my respectful opinion, the judgment of this Court in Fitton must be limited so as not to rule admissible statements made by the accused when not induced by hope of advantage or fear or prejudice but which are certainly not voluntary in the ordinary English sense of the word because they were induced by other circumstances such as existed in the present case.

The other two members of the majority held that the confession was not admissible, holding that unconsented hypnosis induced by a person in authority should be added to the motives for exclusion mentioned in Ibrahim. The written confession, though made after the accused was in a state of hypnosis, flew directly from the earlier statement made while under hypnosis. Therefore it was not voluntary.

Ward v. The Queen[26] was concerned with the admissibility of a confession in a case involving a charge of criminal negligence in the operation of a motor vehicle. This was a single vehicle accident. The accused and his lady friend, the deceased, were found on the ground outside the vehicle. He was unconscious and had to be revived by mouth to mouth resuscitation administered by the occupants of the first vehicle to arrive after the accident. In issue in the case was whether the accused or the deceased was operating the vehicle at the time of the accident.

The police interviewed the accused about half an hour after the accident occurred and at the hospital some five or six hours later. To the police he admitted that he was the driver of the vehicle, although earlier, in response to a question from the person who had revived him, he said that he was not. On the voir dire, he said he could remember nothing from the time he was in the Palliser Hotel,

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Calgary, some hours before the accident. His doctor at the hospital said the accused could answer simple questions but was unable to tell him what had happened.

Spence J., delivering the judgment of the Court, cited the passage above quoted from the reasons of Rand J. in Boudreau and stressed the concluding words “The underlying and controlling question then remains: is the statement freely and voluntarily made?” He went on to say at p. 40:

I have underlined the last sentence in Rand J.’s statement to indicate that in my view the examination of whether there was any hope of advancement or fear of prejudice moving the accused to make the statements is simply an investigation of whether the statements were “freely and voluntarily made”. In my view, there is a further investigation of whether the statements were freely and voluntarily made even if no hope of advantage or fear of prejudice could be found in consideration of the mental condition of the accused at the time he made the statements to determine whether or not the statements represented the operating mind of the accused. In my view, Manning J. engaged in a consideration of both the mental and physical condition of the accused, firstly, to determine whether a person in his condition would be subject to hope of advancement or fear of prejudice in making the statements, when perhaps a normal person would not, and, secondly, to determine whether, due to the mental and physical condition, the words could really be found to be the utterances of an operating mind. Manning J. had a reasonable doubt of both issues and, therefore, found the statements to be inadmissible. It is not denied that a reasonable doubt on the part of the trial judge upon the issue is sufficient to justify his refusal to admit the statements in evidence.

Horvath and Ward are cases in which, although there had been no fear of prejudice or hope of advantage held out by a person in authority, the confessions were excluded essentially because of the existence of a reasonable doubt as to whether the confession in question was “the utterance of an operating mind”.

The same question arose in the case of Nagotcha v. The Queen[27]. In that case the trial judge admitted in evidence inculpatory statements

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made by the accused on the day of his arrest and a few months later when he was being taken to a mental health centre after being remanded there by a Provincial Court Judge.

The accused did not give evidence on the voir dire, but evidence was given by a psychiatrist that he diagnosed the accused as a paranoid schizophrenic. He testified that the accused, initially, was not fit to stand trial, but his condition improved under treatment and no issue was raised as to his fitness when the trial began. Insanity was not raised as a defence.

Chief Justice Laskin, delivering the judgment of the Court upholding the ruling of the trial judge, said at p. 716:

It is clear that there was evidence upon which the trial Judge could act in holding that the inculpatory statements were admissible, and it would be going too far to hold, as an invariable rule, that inculpatory statements by an insane man were ipso facto inadmissible: see Sinclair v. The King (1946), 73 C.L.R. 316; R. v. Basto (1954), 91 C.L.R. 628. The main contention that the trial Judge had applied the wrong test of voluntariness, in respect of statements by a paranoid schizophrenic was based on an alleged distinction between the test expressed in R. v. Santinon (1973), 11 C.C.C. (2d) 121, [21 C.R.N.S. 323, [1973] 3 W.W.R. 113], a judgment of the British Columbia Court of Appeal and the test expressed by this Court in the judgment delivered by Spence J., in Ward v. The Queen, [1979] 2 S.C.R. 30, [(1979), 44 C.C.C. (2d) 498, 94 D.L.R. (3d) 18], O’Driscoll J., was said to have adopted the Santinon test, and it was submitted that the Ward case, which had not yet been decided at the time that the accused was tried, prescribed a different test, one more favourable to the accused. This is not the way that I read the two cases.

He went on to quote from the judgment of Bull J.A. in Santinon and that of Spence J. in Ward and held that the trial judge, although he had not, in terms, used the words “operating mind”, had addressed himself to the proper considerations.

I have reviewed the authorities in this Court with a view to showing that, in determining the admissibility of a confession to a person in author-

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ity, the Court is not immediately concerned with the truth or reliability of the statement made by the accused, but with the question as to whether the statement he has made was free and voluntary, within the stated rules and whether the confession was the utterance of an operating mind.

It has been suggested that this Court adopted a new rule respecting the admissibility of confessions in its judgment in the case of Alward and Mooney v. The Queen[28]. I do not agree for the following reasons.

In that case the appellants had been charged with a murder which occurred in connection with a robbery. At the outset of his judgment, Spence J., who spoke for the majority of the Court, pointed out, at p. 561, that although the appellant had submitted a number of grounds for appeal, counsel for the Crown, respondent, had been called upon to reply only to submissions in reference to three grounds:

1. The admissibility of evidence of similar acts.

2. The judge’s charge as to intoxication.

3. The application of s. 613(l)(b)(iii) of the Criminal Code.

The statements of the accused relating to the charge of murder were found by the trial judge to have been voluntarily made and the Court of Appeal agreed. Counsel for the respondent was not called upon to submit argument to this Court on that issue.

Limerick J.A., who delivered the reasons for the Court of Appeal for New Brunswick[29], dealt with the admissibility of all of the statements made by the accused, and not only those concerning the commission of the offence charged, in the following fashion, at pp. 431-2:

The trial Judge found that all the statements given or made by the appellant were voluntarily given. The evidence does not disclose that he erred therein. The rule as originally applied was that no statement made by an accused is admissible in evidence against him unless it be shown by the prosecution to have been a voluntary statement in the sense that it has not been obtained from

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him either by fear of prejudice or hope of favour or advantage exercised or held out by some one in authority. The term “voluntary” must always be interpreted in this special sense and not in the sense of being spontaneous. The fact that some questions may be asked which induce the statement does not destroy the voluntariness of the statement. This rule of English criminal law has been adopted by our Courts, which have also, to a large extent, adopted, by case law, the further English rule of Court that the statement to be admissible must not be obtained by oppression. I can find no evidence of such oppression in this case as would justify the Court in setting aside the finding of the trial Judge.

The fact that Constable Munn said to Sergeant Scott in the presence of the appellant that the old man has regained consciousness and will be able to identify his assailants,—although untrue, and might induce a sense of fear in the appellant, would not render the statement inadmissible. The fear contemplated by the rule of evidence is not a fear of being caught or identified or a fear induced by the accused’s guilty conscience but a fear of reprisal if he failed to talk or give the statement.

The principle on which the rule is founded is that the accused may have been induced or influenced to say what is untrue and, if being uncertain whether the statement is true, it would be unsafe to receive a statement made under any influence of hope or fear.

The true test, therefore, is did the evidence adduced by the Crown establish that nothing, said or done by any person in authority, could have induced the accused to make a statement which was or might be untrue because thereof. The Crown met that test.

It is the last paragraph in this quotation which it is contended stated a new test as to the admissibility of a statement. It should be noted, however, that Limerick J.A. at the beginning of the passage quoted the rule as to voluntariness “adopted by our Courts”. The paragraph in question is related to the untruthful statement made by the police officers to the accused to the effect that the victim had regained consciousness and would be able to identify his assailants. When this paragraph is read in context, I do not regard it as seeking to break new ground as to the law governing the admissibility of confessions. Limerick J.A. properly directed himself to the issue of voluntariness, and, significantly, did not exclude the statements because they were induced by deception.

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In his reasons in this Court, Spence J. recited from the judgment of Limerick J.A. the three reasons which had been given by the trial judge for admitting the statements of the accused about the other occurrences, i.e. two robberies in motels in which they had been involved. The admissibility of evidence as to similar acts was one of the three points on which the Court heard argument.

Spence J. then went on to say at pp. 562-3:

Limerick J.A. concluded after discussing the evidence as to the statements in detail:

The true test, therefore, is did the evidence adduced by the Crown establish that nothing, said or done by any person in authority, could have induced the accused to make a statement which was or might be untrue because thereof. The Crown met that test.

This Court agreed with that conclusion.

In light of this background, I do not agree that it can be said that this Court in this casual and indirect manner had adopted any new test for the admissibility of a confession. That this is so is made manifest by the fact that in the Horvath case, decided less than two years later, Spence J., in his reasons, made no reference to the Alward case. His remarks were directed to the scope of the judgment in Fitton. Had he considered that the Alward case defined a new test for the admissibility of a confession, he would certainly have applied it in the Horvath case.

What is significant in the Alward case, in relation to the present appeal, is that this Court accepted as admissible statements made by the accused notwithstanding the fact that the police had knowingly given to the accused false information to the effect that the victim had regained consciousness and would be able to identify his assailants. There is no suggestion in Alward that the confession could be excluded by the trial judge because of this conduct.

In my opinion the effect of the judgments in this Court as to the admissibility of confessions is that in order to render the confession admissible the Crown must meet the requirements stipulated in Ibrahim. Even when this has been done, there may

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be circumstances involved in connection with the obtaining of the confession from which the Court may conclude that the confession was not free and voluntary, e.g. as in Horvath and Ward where there is a reasonable doubt as to whether the statement was the utterance of an operating mind. In such a case, the confession is not admissible.

The judgment of the Ontario Court of Appeal in R. v. McLeod[30] is of interest in this connection. Laskin J.A. (as he then was) delivering the judgment of the Court, said at pp. 103‑4:

The accused, appellant, was with the police at a station for about an hour during which she was questioned and gave a statement; and following this she was charged.

Two officers were present during the questioning which was conducted by one only. He tried, as he said, to put her at her ease, by questions not directed to the robbery, and then proceeded to narrate the sequence of events on the night of the robbery. Getting no response from the accused, he then told her that the complainant was still unconscious, in hospital and on the critical list. These were lies, as the officer admitted. The accused, who also gave this account of what the officer told her, said in her evidence on the “trial within the trial” that she became frightened, started to cry and proceeded to make a statement. The officer took her into a smaller room, asked her to repeat her story and typed it. The accused hung back when asked to sign the typed statement, but did so after (according to her evidence) the officer told her that it would not incriminate her.

The general principles of law respecting the admissibility of inculpatory statements have been authoritatively stated for this Court by the Supreme Court of Canada in Boudreau v. The King, [1949] S.C.R. 262, 7 C.R. 427, 94 C.C.C. 1, [1949] 3 D.L.R. 81, and reaffirmed in Regina v. Fitton, [1956] S.C.R. 958, 24 C.R. 371, 116 C.C.C. 1, 6 D.L.R. (2d) 529, 10 Can. Abr. (2nd) 6479. But as Rand and Kellock JJ. pointed out in the latter case (at p. 962), these principles at times present difficulty of application because their terms tend to conceal underlying considerations material to a determination; and they continue:

“The case of torture, actual or threatened, or of unabashed promises are clear; perplexity arises when

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much more subtle elements must be evaluated. The strength of mind and will of the accused, the influence of custody or its surroundings, the effect of questions or of conversation, all call for delicacy in appreciation of the part they have played behind the admission, and to enable a Court to decide whether what was said was freely and voluntarily said, that is, was free from the influence of hope or fear aroused by them.”

I hold in the present case, contrary to the ruling of the trial Judge, that the Crown has not discharged the burden of proof resting upon it in the matter at issue.

In so holding, I do not rule out as a matter of law all stratagems that the police or persons in authority may employ in questioning a person under arrest. The issue in every case, under the governing law, must be whether they operate or are calculated to operate upon the person to rouse hope of advantage or fear of prejudice, or by their oppressiveness (to borrow a term from the English Judges’ Rules) put in doubt at least whether any ensuing inculpatory statement has been properly elicited. In my view, reinforced by a reading of the whole record, the lies and associated incidents in this case had the forbidden effect in inducing the incriminating statement.

Jessup J.A., who was a member of the Court which decided the McLeod case, said about that case in his judgment in the present case:

In all the circumstances, including the emotional impact on the accused of the lies told her by the officer which put her in fear, the court held that the Crown had not satisfied the onus on it of proving the accused’s statement was voluntary.

The circumstances in the present case are entirely different from those in the McLeod case. There is no allegation here that the mind of the accused was affected by the actions of the police officer. No person thought by the accused to be in authority sought by oppression to coerce, or even to persuade the accused to make a statement. His statement was made freely and it was volunteered by him. The circumstances of this case show only that the accused was mistaken as to the identity of the person with whom he was talking. The accused

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thought that person was a fellow prisoner, who presented himself as a sympathetic listener.

For these reasons, in my opinion, the statement was admissible even if McKnight were to be regarded as a person in authority.

I would dismiss the appeal.

LAMER J.—This is an appeal from a judgment of the Court of Appeal for Ontario allowing the Crown’s appeal from an acquittal and directing a new trial.

Appellant was charged in the Court of the General Sessions of the Peace, in the Judicial District of Ottawa-Carleton, with possession of cannabis resin for the purpose of trafficking. The case bears on the admissibility of a confession. Following a voir dire the County Court Judge ruled this confession inadmissible and directed an acquittal. The circumstances leading to the arrest, the accused’s statement and the judge’s ruling are to be found in the agreed statement of facts[31] submitted by the parties:

On November 9, 1976 at approximately 2:30 p.m., Sergeant Woods and Constables Lauzon, Carvish and Gervais of the Ottawa Police Force conducted a search of apartment 1102, 1365 Bank Street in the City of Ottawa under the authority of a search warrant. On the premises at that time were Donal Bonner (D.O.B. 26/06/57), Timothy Hrehoriak (D.O.B. 24/12/60) and the Respondent (D.O.B. 21/12/45). The Respondent advised Constable Gervais that he lived on the premises along with one Nancy Olson. In one of the bedrooms, Sergeant Woods located 128.54 grams of hashish, a set of scales, a cutting knife and a box of tin foil. Upon analysis, the scales and knife were found to have traces of hashish.

The Respondent was given a police warning and was then conveyed to the Ottawa City Police Station at 60 Waller Street along with Bonner and Hrehoriak. Prior to being lodged in a cell, Constable Gervais asked the Respondent if he was willing to give a statement but he declined to do so. The Respondent was later removed from the cell, charged with possession of hashish for the purposes of trafficking and returned to the same cell.

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On November 10, 1976 at approximately 1:00 a.m., Constable McKnight, a member of the Ottawa City Police Force acting in an undercover capacity, was placed in an 8’ x 8’ cell at the Ottawa City Police Station occupied by the Respondent alone. Constable McKnight was placed in the cell on the instructions of Constable Gervais, the investigating officer, in order to obtain information from the Respondent concerning the charge against him. During the trial, a voir dire was conducted on the question of whether Constable Earl McKnight was a person in authority. At that time, Constable McKnight was unarmed, wore blue jeans, a blue jacket and brown boots, and had a four or five day growth of beard. Constable McKnight testified on the voir dire that the Respondent appeared to be normal and not under the influence of alcohol. No other persons or police officers were visible from the cell. Constable McKnight did not identify himself to the Respondent as a member of the Ottawa City Police Force and the Respondent did not appear to recognize him as such.

Upon entering the cell, the Respondent spoke first to constable McKnight by saying that Constable McKnight “looked like a nark”. Constable McKnight just laughed and the Respondent continued that he looked like a nark because of the way he was dressed. Constable McKnight explained that he was dressed like that because he had been fishing. The Respondent then asked Constable McKnight why he was in jail and he replied that it was because of a traffic ticket. Constable McKnight asked the Respondent why he was in jail and the Respondent stated that it was for possession of hashish. While in the cell, Constable McKnight sat beside the Respondent on the only bench. The Respondent then told Constable McKnight that he sold hashish for $25.00 for 3 grams, that the hash that he had been caught with had been “fronted” to him and that he would have to pay the people back $1,000 because he had been “busted”. The Respondent stated that he would have made $1,800 on the drugs that he had. Constable McKnight asked if there were many drugs in the City and the Respondent replied that there were approximately 40 pounds. The Respondent also stated that he was arrested at his apartment along with his buddy who was in the next cell. During the conversation, Constable McKnight informed the Respondent that he was a truck driver from the Pembroke area and had been fishing so the Respondent would have the impression that he was not a nark and that he did not know much about drugs. Constable McKnight indicated that people in the Pembroke area were interested in drugs and that he would be interested in getting drugs; however, no deal was set up. The Respondent asked Constable McKnight when he would be getting out and he

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replied that a buddy would be coming down to pay the fine. The Respondent stated that he had to go to court the next morning because he was on parole respecting other charges. Constable McKnight was released from the cell at 1:07 a.m. and made his notes concerning the conversation shortly thereafter.

After Constable McKnight testified on the voir dire the Respondent called no evidence on the issue of whether Constable McKnight was a person in authority.

After argument by counsel, His Honour Judge Matheson ruled that in all the circumstances, Constable McKnight was a person in authority.

No further evidence was called by the Crown on the voir dire on the issue of whether the statements made by the Respondent to Constable McKnight were voluntary. The Respondent did not request any other Crown witnesses to be produced for cross‑examination on the voir dire and did not call any evidence on this issue.

After argument by counsel, His Honour Judge Matheson ruled that the “continuation of the intent to obtain a statement by this disguise” puts into doubt whether the inculpatory statement had properly been elicited and was therefore inadmissible.

The Crown called no further evidence at trial and at the request of Crown Counsel and the direction of His Honour Judge Matheson, the jury returned a verdict of “not guilty” of possession.

The majority in the Court of Appeal (Jessup and Weatherston JJ.A., Dubin J.A., dissenting) was of the opinion that the police officer to whom the statement was made was not, for the purpose of determining the admissibility of the statement, a “person in authority”, and that the statement, if relevant, was admissible without any voir dire being held to determine whether it met the special test set out in Ibrahim v. The King[32]. This conclusion, as regards the police officer, was arrived at by adopting and applying a subjective test followed by many Canadian courts[33] which is summarized by Kaufman in his third edition of The Admissi-

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bility of Confessions, in the following terms (at p. 81):

The true test, it is submitted, is highly subjective: Did the accused truly believe, at the time he made the declaration, that the person he dealt with had some degree of power over him? In other words, did the accused think that the person to whom he confessed (or as a result of whose intervention he confessed) could either make good his promise or carry out his threats? If so, such person should be treated as a person in authority; if not, the rules which attach to persons in authority need not be applied, even though the person, from a purely objective point of view, was in a position of undoubted authority.

I am in agreement with the Court of Appeal for Ontario that, for the purpose only of determining whether the statement was or was not obtained “by fear of prejudice or hope of advantage exercised or held out by a person in authority”, (Ibrahim v. The King, supra, at p. 609), the test is a subjective one and that, under the circumstances of this case, Officer McKnight was not a person in authority.

However, I should add here that whilst the subjectivity of this test is due to what many consider a rationalization (i.e. the possible unreliability_ of the statement) of the voluntariness rule as enunciated in Ibrahim v. The King, (i.e. without fear of prejudice or hope of advantage), the conclusion that the police officer was not a person in authority is a fiction that is necessary only if the rule is couched in terms of voluntariness, and that it is no longer so when the rule is enunciated in terms of reliability.

Having decided that the statement was not made to a person in authority, the Ontario Court of Appeal[34] further stated (at p. 381):

Even if the undercover officer in this case had been regarded by the accused as a person in authority, the conditions laid down in Ibrahim as to the voluntariness of the accused’s statements had been met. There is no suggestion in the agreed facts of a fear of prejudice exercised by Officer McKnight or a hope of favour held out by him.

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This second conclusion was predicated on the decision of this Court in the case of R. v. Fitton[35], in which it reaffirmed what it had said in Boudreau v. The King[36], adopting the often quoted rule set out in Ibrahim, supra, where Lord Sumner said (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.

It is interesting to note that Lord Sumner went on to say (at pp. 610-11):

It is to be observed that logically these objections all go to the weight and not to the admissibility of the evidence. What a person having knowledge about the matter in issue says of it is itself relevant to the issue as evidence against him. That he made the statement under circumstances of hope, fear, interest or otherwise strictly goes only to its weight. In an action of tort evidence of this kind could not be excluded when tendered against a tortfeasor, though a jury might well be told as prudent men to think little of it. Even the rule which excludes evidence of statements made by a prisoner, when they are induced by hope held out, or fear inspired, by a person in authority, is a rule of policy. “A confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it”; Rex v. Warwickshall [sic] ((1783) 1 Leach, 263). It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice: Reg. v. Baldry ((1852) 2 Den. Cr. C. 430, at p. 445). Accordingly, when hope or fear was not in question, such statements were long regularly admitted as relevant, though with some reluctance and subject to strong warnings as to their weight.

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In his dissenting opinion, Dubin J.A. of the Ontario Court of Appeal, after saying (at p. 385) that “…one of the reasons assigned for the rule, as stated in Ibrahim v. The King, supra, is that a confession made under such circumstances may be untrue, but it does not follow that where the truth of the confession is no longer in issue that it necessarily becomes admissible”, concluded that, whatever may be its philosophical basis, the rule was not exhaustive. He then went on to recognize that a judge has a discretion to exclude a statement to a person in authority if it was obtained in a manner which transgresses his right to remain silent (at p. 386):

In my respectful opinion, the rules respecting confessions and privilege against self‑incrimination are related. I use that term in the sense of the right of a person under arrest to remain silent when questioned by law enforcement officers.

I am in agreement with Dubin J.A. that the reliability test is not the only test of the admissibility of a statement against an accused. I also agree that a trial judge should have the power to exclude, whether he had or not until now, under certain circumstances, statements for reasons, hereinafter stated, quite unrelated to their reliability and even though these statements may be of great probative value. I would not however, with deference, predicate the exercise of that power on an extension of the privilege against self-crimination that would sanction in that way a suspect’s right to remain silent (see Marcoux and Solomon v. The Queen[37]). If and to the extent Dubin J.A. does so, I cannot agree with him. In Marcoux and Solomon v. The Queen, my brother Dickson speaking for the Court (Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.) explained the extent to which that doctrine exists in Canada (at pp. 768-9):

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The limit of the privilege against self-incrimination is clear. The privilege is the privilege of a witness not to answer a question which may incriminate him. That is all that is meant by the Latin maxim nemo tenetur seipsum accusare, often incorrectly advanced in support of a much broader proposition.

As applied to witnesses generally, the privilege must be expressly claimed by the witness when the question is put to him in the witness box, Canada Evidence Act, R.S.C. 1970, c. E-10, s. 5. As applied to an accused, the privilege is the right to stand mute. An accused cannot be asked, much less compelled, to enter the witness box or to answer incriminating questions. If he chooses to testify, the protective shield, of course, disappears. In short, the privilege extends to the accused qua witness and not qua accused, it is concerned with testimonial compulsion specifically and not with compulsion generally: Attorney-General of Quebec v. Begin [1955] S.C.R. 593; In re Validity of Section 92(4) of the Vehicles Act 1957 (Sask.) [1958] S.C.R. 608; see also the helpful article “Is there a right against self-incrimination in Canada” by Professor Ed. Ratushny, (1973) 19 McGill Law Journal 1.

In Canada the right of a suspect not to say anything to the police is not the result of a right of no self-crimination but is merely the exercise by him of the general right enjoyed in this country by anyone to do whatever one pleases, saying what one pleases or choosing not to say certain things, unless obliged to do otherwise by law. It is because no law says that a suspect, save in certain circumstances[38], must say anything to the police that we say that he has the right to remain silent, which is a positive way of explaining that there is on his part no legal obligation to do otherwise. His right to silence here rests on the same principle as his right to free speech, but not on a right to no self-crimination. Therefore any frustration of his choice not to say anything is not an encroachment to a right to no self-crimination for he has such a right only “qua witness” and “qua accused” as explained in Solomon (supra). This is not to say that the fact that an arrested person’s choice to remain silent has been frustrated is to be disre-

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garded; it is surely one of the circumstances to be taken into account by the judge when considering the admissibility of his statement by applying the test I will describe further on, but it is only one of the circumstances and would not of necessity result in excluding a statement as would be the case if suspects enjoyed in Canada as encompassing a privilege against self-crimination as that which they do in the United States. But I should like to add here, that I agree with Dubin J.A. that the rule is related to the privilege against self-crimination for it is, in my opinion, predicated in part on the right an accused person enjoys not to be compelled to testify; but in part only, for the rule is also the result of a desire on the part of the judges to protect the system’s respectability and, as a result, its very acceptance by its constituency.

Over the years judges and scholars (see Vincent Del Buono, “Voluntariness and Confessions: A Question of Fact or Question of Law?”, (1976-77) 19 Crim. L.Q. 100, at pp. 100-01; E.J. Ratushny, “Self-incrimination: Nailing the Coffin Shut”, (1977-78) 20 Crim. L.Q. 312, “Unravelling Confessions”, (1970-71) 13 Crim. L.Q. 453; G.A. Martin, “The Admissibility of Confessions and Statements”, (1962-63) 5 Crim. L.Q. 35; A.C. Hutchinson and N.R. Withington, “Horvath v. The Queen: Reflections on the Doctrine of Confessions”, (1980) 18 Osgoode Hall L.J. 146) have minutely analysed Lord Sumner’s choice of words in Ibrahim in order to determine the scope of the rule governing the admission of statements by a suspect to persons in authority (at p. 609): “. 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”.

Some judges have given those words a strict interpretation and have held that the only circumstances where the exclusionary rule will operate are to be found in the words “fear of prejudice” and “hope of advantage” and only when such

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“fear” or “hope” has been “exercised or held out by a person in authority”.

Others have relied on other passages of the judgment, and have concluded that those same words should not be regarded as exhaustive, but as merely illustrative of those circumstances which would render a statement involuntary (see: Vincent Del Buono, supra, at p. 104). Their reason for doing so is that they felt that the test was not a true dictionary-sense-of-the-word “voluntariness” test but in fact a “reliability” test. This interpretation of Lord Sumner’s use of the word “voluntary” is justified, they say, by his apparent rationalization of the rule when he quoted R. v. Warickshall[39] to the effect that (at pp. 610-11) “A confession forced from the mind by the flattery of hope or by the torture of fear comes in so questionable a shape, when it is to be considered as evidence of guilt, that no credit ought to be given to it”. Others found they had an even wider discretion by relying on another passage of Lord Sumner’s remarks where he said (at p. 611): “It is not that the law presumes such statements to be untrue, but from the danger of receiving such evidence judges have thought it better to reject it for the due administration of justice.”

Much has been written and said about this rule (voluntariness), its alleged underlying policy (reliability), and the existence and scope of a residual discretion. In a recent decision, Alward and Mooney v. The Queen[40], this Court appeared to have recognized that the “qualified” voluntariness test was not to be construed restrictively, was not exhaustive; and that evidence that anything done by the authorities that casts some doubt as to the accused having been induced to make a possible unreliable statement will be sufficient to have it excluded, whether what the authorities have done is or is not susceptible of instilling in the mind of the accused “fear of prejudice” or of creating “hope of advantage”.

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In that case, the accused Alward had made a statement to the police whilst under arrest on suspicion of murder. The statement was elicited as the result of a lie by a police officer to the effect that the victim, who in reality was still in a comatose state, had recovered consciousness and would be able to identify his assailants. A full bench of this Court agreed with the conclusion of the Court of Appeal for New Brunswick when that Court said, in dealing with the admissibility of that statement, per Limerick J.A. (at p. 562):

The true test, therefore, is did the evidence adduced by the Crown establish that nothing, said or done by any person in authority, could have induced the accused to make a statement which was or might be untrue because thereof. The Crown met that test.

Though this Court simply stated (at p. 563): “This Court agreed with that conclusion”, it appears to me to be a clear and unequivocal finding that should have put an end, if not to all controversies surrounding the confession rule, at least to those concerning whether the rule is mainly a reliability test or a voluntariness one, and, if reliability be the test, whether it is limited to “fear of prejudice” and “hope of advantage” or general. The three sets of reasons to be found a year later in this Court’s decision in the case of Horvath v. The Queen[41], are an indication that such is far from being the case.

While reliability is invoked by most courts as being the rationale for the rule when dealing with lies by the police as to their true identity (i.e. the subjective test as to whether a person is a person in authority), there is a general reluctance to adjust the formulation of the rule to that alleged rationale. There is also a feeling that, whether the test is voluntariness or reliability, it is not exhaustive.

This reluctance is quite justified, for reliability, as I will attempt to demonstrate later on, is not

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really the rationale for the rule but part of the rule itself, part of the test.

Indeed, why have a special exclusionary rule dealing with the reliability of usually highly prejudicial statements made by suspects to persons in authority when we already have an exclusionary rule dealing with unduly prejudicial evidence that is of slight probative value (R. v. Wray[42], R. v. Cook[43], Noor Mohamed v. The King[44], Stirland v. D.P.P.[45], Maxwell v. D.P.P.[46]). Assuming that, not to be redundant, this special exclusionary rule is intended to deal with statements that could not be excluded as being of slight probative value, one then wonders why we have, as a question of policy, imposed a higher standard of probative value for “statements” before letting the trier of fact be apprised of the very existence of such evidence. Put in other words, what is the policy consideration that overrides the application of the fundamental evidentiary rule that the weight of evidence, when relevant and, if highly prejudicial, of more than slight probative value, is for the trier of fact? Indicia as to the answer to this question are to be found in the very formulation of the test, whether one adopts, as this Court did, Limerick J.A.’s test in Alward and Mooney (supra) or that of Lord Sumner in Ibrahim (supra). If the concern with statements made to persons in authority was primarily a concern about their reliability why then should we only be concerned when “the hope” or “the fear” entertained by the suspect is due to its having been “exercised or held out by a person in authority” (the Ibrahim formulation) or only when the unreliability is the result of something having been “said or done by any person in authority” (the Alward and Mooney formulation)? The other statements, those where the hope or fear or unreliability is not the doing of the authorities, are no less unreliable; furthermore, it is not because the possible unreliability of the statement is the result of what persons in authority have said or done that the trier of fact is any less capable of weighing that evidence and should be

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precluded from doing so through an exclusionary rule.

As regards whether the test, be it reliability or voluntariness, is considered by judges as being exhaustive, Chief Justice Freedman in an article he wrote (S. Freedman, “Admissions and Confessions”, at pp. 95 et seq., in R.E. Salhany and R.J. Carter, ed., Studies in Canadian Criminal Evidence, 1972) had this to say (at p. 99):

It is justice then that we seek, and within its broad framework we may find the true reasons for the rule excluding induced confessions. Undoubtedly, as already stated, the main reason for excluding them is the danger that they may be untrue. But there are other reasons, stoutly disclaimed by some judges, openly professed by others, and silently acknowledged by still others—the last perhaps being an instance of an ‘inarticulate major premise’ playing its role in decision-making. These reasons, all of them, are rooted in history. They are touched with memories of torture and the rack, they are bound up with the cause of individual freedom, and they reflect a deep concern for the integrity of the judicial process. [The underlining is mine]

A close look at the reported cases substantiates quite convincingly what Chief Justice Freedman said; trial judges are sanctioning, when appropriate, what they think is, under the circumstances of each case, seriously unfair, oppressive, or undesirable conduct on the part of persons in authority by excluding even reliable statements through a liberal interpretation of the voluntariness rule or of the reliability test, whichever is more convenient, and quite understandably through a more stringent application of the rules of evidence concerning the credibility of witnesses and the burdens of proof and of persuasion that rest upon the shoulders of the authorities.

Former Chief Justice Gale, of Ontario, had this to say when, as a trial judge, he delivered judgment on a voir dire (R. v. McCorkell, cited in “Notes and Comments”, (1964-65) 7 Crim. L.Q. 395, at pp. 396-7):

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…I am prepared to conclude that they went there in perfectly good faith to speak to the accused. They cautioned him again and he made certain disclosures. Strictly speaking, I concede that these statements were probably voluntary on his part within the meaning of that word under the authorities. However, in my discretion, I am not going to allow them to be admitted as part of the trial, believing as I do that the sanctity of the relationship between a solicitor and his client is not to be lightly frittered away and ought not to be violated, even though innocently as in this case.

It is my opinion that once an accused person has retained counsel to the knowledge of the police or other persons in authority, the latter ought not to endeavour to interview and question that accused person without first seeking and obtaining the concurrence of his solicitor. So strong is my view in this respect that I am therefore exercising my discretion in the way I have indicated, perhaps wrongly, because, strictly speaking, the statement thus procured was probably admissible. I decline, however, to give any encouragement in the future to persons in authority to circumvent the position of an accused’s solicitor by going directly to speak to the accused. [The underlining is mine]

He was one of those who, to use the terms of Chief Justice Freedman, “openly professed” what a great many more “silently”, but not less effectively, “acknowledge”.

Bringing about a guilty suspect to admit guilt in a statement is not in itself an improper activity. It is only to be repressed if it is done in a way that offends our basic values, that is in a manner which be contrary to the rules of law we have developed for their protection and furtherance. Our criminal justice system has vested the courts with two responsibilities: the protection of the innocent against conviction; and the protection of the system itself by ensuring that the repression of crime through the conviction of the guilty is done in a way which reflects our fundamental values as a society. These concerns have brought about the elaboration by judges and legislatures of procedural and evidentiary safeguards. The concern for the innocent resulted in the reasonable doubt rule (the burden of persuasion) and, considering the individual citizen’s position when facing the awesome power of the state, in our putting on the

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shoulders of the state the burden of proof; the concern for the process’ respectability resulted in three corollaries:

1. the right for any person not to be convicted through the use against him or her of evidence adduced under oath through compulsion by the law (the protection afforded by s. 5 of the Canada Evidence Act, R.S.C. 1970,c.E-10),

2. the right for an accused not to be compelled as a witness at his own trial,

3. the exclusion of statements the admission of which because of conduct on the part of authorities would be more damaging to the systems reputation than that resulting from a guilty accused’s acquittal.

It is on the second and third of these corollaries that the rule as regards the admissibility of confessions is predicated and it is with regard to this rationalization that the rule should be formulated and then applied.

As I have said earlier, if there existed in Canada a general right to no self-crimination, any statement made by a person to persons in authority other than a voluntary statement would not, at a minimum, be admissible in evidence against that person at his or her trial. As that right (apart from the protection of s. 5(2) of the Canada Evidence Act) is limited to one’s right not to be compelled as a witness in one’s trial, it is only if and to the extent the statement is used by the Crown in a way that would amount to such compulsion that the statement should be excluded.

Evidence tendered by the Crown will usually quite normally have the effect of eventually forcing the accused to take the stand or stand convicted. One could not say that by doing so the Crown transgresses the accused’s right to stay mute. The accused’s right to stay mute or to testify is a choice he will make in light of the probative value of the evidence adduced in and against his interest.

Special considerations however arise when dealing with statements, which, as we all know, are, when tendered in evidence by the Crown, in some way damaging to the accused’s defence. That there

[Page 691]

need be a special approach to statements is not because they are frequently unreliable but because any unreliability surrounding them will usually be adduced only through the accused’s own testimony. Elements affecting a statement’s reliability, when present, generally have the effect of forcing the accused into the witness stand and then, if this were to happen before the trier of fact, being subject to cross-examination at large. But this is equally so of other types of evidence and is not, nor should it be, reason in itself for excluding evidence. One surely cannot say that because the Crown is tendering as evidence a statement of alleged questionable reliability that it is, any more so than in the case of other types of evidence, indirectly transgressing the accused’s right not to testify by forcing him to take the stand and to attack its reliability. But I think that such is the case if the Crown’s agents are responsible by what they said or did for the possible presence of these elements of unreliability, whatever might those words or that conduct have been.

As a result a first conclusion may be drawn: a statement before being left to the trier of fact for consideration of its probative value should be the object of a voir dire in order to determine, not whether the statement is or is not reliable, but whether the authorities have done or said anything that could have induced the accused to make a statement which was or might be untrue. It is of the utmost importance to keep in mind that the inquiry is not concerned with reliability but with the authorities’ conduct as regards reliability. In passing, I should like to mention that considering whether a confession, the reliability of which has been confirmed by real evidence, should be treated differently from others, whether an accused testifying oh a voir dire should be asked questions relating to the statement’s truthfulness, and indeed the very definition of a “person in authority”, are matters that, given the opportunity to do so, should be considered in the light of that important distinction.

This first conclusion leads naturally to certain others: that reliability is not the rationale of the voluntariness test, also, that voluntariness, as Lord

[Page 692]

Sumner himself recognized in Ibrahim, (“voluntariness” but “in the sense that it has not been obtained…”) is not really the test.

The first rationale for the confession rule is the repression of conduct on the part of the authorities that indirectly frustrates an accused’s right not to testify; the test that corresponds to this first rationale is whether the authorities did anything in eliciting those statements that might affect its reliability.

Would this then mean that voluntariness is of no relevance whatever? I think not. Clearly, the elicitation, against a suspect’s will, of a statement usually will, though not always, be the result on the part of the authorities of conduct that will be such as might affect that statement’s reliability. But what if not? What if, as in this case, the statement was the result of a ruse or again what if the authorities resorted to truth serum, or hypnotism, but did nothing to render that statement unreliable? As I have stated earlier, mere lack of voluntariness cannot as such be a reason for excluding a statement as there is no general right to no self-crimination.

Now let us assume that the statement is unreliable, but through no fault on the part of the authorities; if at the same time it was extracted from the suspect against his will as a result of what the authorities have said or did, could it not be argued that, by eliciting the statement, the authorities, though not responsible for unreliable evidence going to the trier of fact, are none the less responsible for the accused’s having to take the stand and that, as a result, all involuntary statements should be excluded as a breach by the Crown of the accused’s right not to be compelled to testify?

It is of importance, before answering this question, to bear in mind the difference between the situation where the authorities will be responsible for the trier of fact being given a possible unreli-

[Page 693]

able statement by conduct which is the very cause of such unreliability and that where they are responsible but only because they elicited such a statement against the accused’s will.

Indeed, though we have shifted from considering conduct of the authorities that might affect the statement’s reliability to that of considering their conduct which affects a suspect’s free will, we have not changed the purpose for doing so, namely, the protection of the accused’s right not to be compelled to testify at his trial; we are therefore concerned with his free will only to the extent its frustration has an adverse effect on that right. If lack of voluntariness, when considered in this way, were to result automatically in the exclusion of all unwilling statements this would then be, in my opinion, an overextension of the right of an accused to stand mute, and would amount to introducing indirectly into our system a facet of the general privilege of no self-crimination we do not have in this country. Should this then mean that lack of voluntariness is but relevant if it is the result of conduct on the part of the authorities that might affect the statement’s reliability? In fact, that voluntariness per se is irrelevant? And if this is so, would this necessarily mean that the reliability test is exhaustive.

One should expect but few of the guilty to admit spontaneously their wrongdoing and should recognize that such admissions when made in or out of court are, more often than not, the result of the effectiveness of the investigative forces. As I have said earlier, there is nothing inherently wrong in outsmarting criminals into admitting their guilt or into jeopardizing the liberty they might be tempted to take with the truth in the course of their trial. Our concern with voluntariness, apart from its aforementioned relation to unreliability, is part of, and, for that reason, in a sense limited to when it equates to, a more general concern we have for the integrity of the criminal justice system. As the criminal justice system exists for the protection of the values we cherish the most as a society, we

[Page 694]

consider it counter-productive to the very aims and purposes of the system to admit as evidence against an accused a statement elicited by means that amount to a blatant disregard for those values and others of equal importance we are seeking to protect through the prosecution of his alleged crime. Lack of voluntariness (when not due to conduct by the authorities resulting in possible unreliability) will be of concern if the methods resorted to by the authorities in eliciting that unwilling statement have that negative effect.

This concern by the courts for the protection of the integrity of the system has always been present when defining voluntariness, its alleged (in my opinion wrongly so) rationale, and the existence of some residual discretion. Unfortunately, because this concern was not clearly identified and dealt with in an autonomous and comprehensive way, endeavours to rationalize the confession rule have given somewhat blurred results. This difficulty was compounded by the fact that we have tried to accommodate this concern within the two parameters of the Ibrahim pronouncement: voluntariness and reliability. As a result, the extent to which we have stretched the voluntariness test to deal on an ad hoc basis with statements that had to be excluded but could not be so through the reliability test has clashed with another quite legitimate concern we have also had not to jeopardize the police in their work. The reasons given by this Court in Horvath and indeed in many other cases by other courts amply illustrate the point. There are situations where it is desirable that a statement that is not voluntary be admitted, and there are other situations where it should certainly not—(I am speaking here of voluntariness in a wide sense and where lack of voluntariness is not the result of conduct by the authorities that would be dealt with through the reliability test). In fact there are situations where a statement, though given voluntarily in any sense one can reasonably give to that word and notwithstanding the absence of any conduct on the part of the authorities that might affect its reliability, should nevertheless be exclud-

[Page 695]

ed as seriously damaging the system’s respectability. Lack of voluntariness is but a symptom that might indicate, but not necessarily so, that the authorities have done something that could have induced the accused to make an unreliable statement or that the statement was elicited in a way damaging to the system’s integrity. For this reason it is preferable that voluntariness not be referred to when enunciating the rule (nor indirectly so through the use of expressions such as—oppression—not the result of a free operating mind—the result of a complete emotional disintegration) as it is only one of the factors to be considered along with many others, when deciding if the tendering as evidence of a statement would damage the system’s integrity or whether it would amount to a transgression of the accused’s right not to testify.

As regards the reliability test, I find it convenient and appropriate to retain the Alward formulation since it seems to have already met with some approval in this Court, to which should be added, in order to deal with our concern for the integrity of the judicial process, a norm and its formulation that has already met with the approval of Parliament when enacting s. 178.16 of the Criminal Code:

178.16 (1) A private communication that has been intercepted is inadmissible as evidence against the originator of the communication or the person intended by the originator to receive it unless

(a) the interception was lawfully made; or

(b) the originator thereof or the person intended by the originator to receive it has expressly consented to the admission thereof;

but evidence obtained directly or indirectly as a result of information acquired by interception of a private communication is not inadmissible by reason only that the private communication is itself inadmissible as evidence.

(2) Notwithstanding subsection (1), the judge or magistrate presiding at any proceedings may refuse to admit evidence obtained directly or indirectly as a result of information acquired by interception of a private communication that is itself inadmissible as evidence

[Page 696]

where he is of the opinion that the admission thereof would bring the administration of justice into disrepute. [The underlining is mine]

Therefore, the rules regarding the admissibility of statements by an accused to persons in authority may be enunciated in the following manner:

1. A statement made by the accused to a person in authority is inadmissible if tendered by the prosecution in a criminal proceeding unless the judge is satisfied beyond a reasonable doubt that nothing said or done by any person in authority could have induced the accused to make a statement which was or might be untrue;

2. A statement made by the accused to a person in authority and tendered by the prosecution in a criminal proceeding against him, though elicited under circumstances which would not render it inadmissible, shall nevertheless be excluded if its use in the proceedings would, as a result of what was said or done by any person in authority in eliciting the statement, bring the administration of justice into disrepute.

I would emphasize that under the above mentioned second rule the judge is not exercising a pure discretion to exclude, as is the case under s. 178.16(2) of the Criminal Code, and that his finding is to be dealt with in appeal as any other finding, subject to the differences and limits of the Appeal Court’s jurisdiction as defined by ss. 603 and 605 of the Criminal Code.

I hasten to say also that, if the second portion of the rule is not a true discretion, it is even less a blanket discretion given judges to repudiate through an exclusionary rule any conduct on the part of the authorities a given judge might consider somewhat unfortunate, distasteful or inappropriate. There first must be a clear connection between the obtaining of the statement and the conduct; furthermore that conduct must be so shocking as to justify the judicial branch of the criminal justice system in feeling that, short of disassociating itself from such conduct through rejection of the statement, its reputation and, as a result, that of the whole criminal justice system, would be brought into disrepute.

[Page 697]

The judge, in determining whether under the circumstances the use of the statement in the proceedings would bring the administration of justice into disrepute, should consider all of the circumstances of the proceedings, the manner in which the statement was obtained, the degree to which there was a breach of social values, the seriousness of the charge, the effect the exclusion would have on the result of the proceedings. It must also be borne in mind that the investigation of crime and the detection of criminals is not a game to be governed by the Marquess of Queens-bury rules. 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. That a police officer pretend to be a lock-up chaplain and hear a suspect’s confession is conduct that shocks the community; so is pretending to be the duty legal-aid lawyer eliciting in that way incriminating statements from suspects or accused; injecting Pentothal into a diabetic suspect pretending it is his daily shot of insulin and using his statement in evidence would also shock the community; but generally speaking, pretending to be a hard drug addict to break a drug ring would not shock the community; nor would, as in this case, pretending to be a truck driver to secure the conviction of a trafficker; in fact, what would shock the community would be preventing the police from resorting to such a trick.

It must be remembered that the first part of the rule, the reliability test, will have dealt with most of the situations and that the second part of the rule would come into operation on very rare occasions since such conduct would usually have some effect on the reliability of the statement. Nevertheless, it is in my opinion all the more important to have a rule that is available to deal with those situations which, thanks to the high standard of conduct of the vast majority of our police officers, will be very few but for that reason all the more deserving of immediate and vigorous rebuke.

[Page 698]

Applying the rule to this case, the trial judge had to ask himself if he was satisfied beyond a reasonable doubt that the lie by Constable McKnight to the accused could not have induced him into making a statement that might be untrue. It appears from what he said that he was satisfied that the lie did not have that effect. Applying the rule in the Ibrahim formulation he said (A.C., at p. 31):

In the instant case I am satisfied that what Rothman said to Const. Earl Grant McKnight, and I might add, who was acting in the performance of his duty, would seem to have been free of both fear and prejudice, and free as well of hope of advantage by reason of the facts that he had been mislead or tricked into believing that he was speaking to a person actually held in custody.

But, he then went on to say:

However, in light of the facts of this particular case, I believe that continuation of the intent to obtain a statement by this disguise puts into doubt whether the inculpatory statement had been properly elicited, and I feel that in the circumstances that I must rule against admissibility herein.

In coming to this last conclusion he committed in my opinion an error in law by applying the wrong test. To exclude the statement it was not sufficient that the judge have a doubt that it was elicited improperly; he had to find that the improper conduct on the part of the police, that is, to use his words, the “continuation of the intent to obtain a statement by this disguise”, would bring the administration of justice into disrepute.

Applying that test, I cannot but come to the conclusion that there was no impropriety committed on the part of the police that would result in bringing the administration of justice into disrepute. I, therefore, agree with the majority of the Court of Appeal that the trial judge erred in law and that a new trial should be ordered.

I would therefore dismiss the appeal.

Appeal dismissed, LASKIN C.J. and ESTEY J. dissenting.

Solicitor for the appellant: Scott T. Milloy, Ottawa.

Solicitor for the respondent: R. Tassé, Ottawa.

 



[1] (1978),42 C.C.C. (2d) 377.

[2] [1971] S.C.R. 23.

[3] [1967] 1 A.C. 760 (H.L.).

[4] [1968] S.C.R. 902.

[5] [1979] 2 S.C.R. 376.

[6] [1914] A.C. 599.

[7] [1956] S.C.R. 958.

[8] [1979] 2 S.C.R. 30.

[9] [1976] 1 S.C.R. 763.

[10] [1980] A.C. 402.

[11] (1969), 69 W.W.R. 588.

[12] (1968), 5 C.R.N.S. 101 (Ont. C.A.).

[13] (1978),42 C.C.C. (2d) 377.

[14] [1914] A.C. 599.

[15] [1949] S.C.R. 262.

[16] [1956] S.C.R. 958.

[17] (1972), 7 C.C.C. (2d) 133 (B.C.C.A.).

[18] (1974), 11 N.S.R. (2d) 104 (N.S.C.A.).

[19] (1951), 101 C.C.C. 312 (Que. C.A.).

[20] (1980), 21 A.R. 300 (Alta. C.A.).

[21] [1976] 1 S.C.R. 763.

[22] [1971] S.C.R. 23.

[23] [1979] 2 S.C.R. 30.

[24] [1956] S.C.R. 958, revising [1956] O.R. 696.

[25] [1979] 2 S.C.R. 376.

[26] [1979] 2 S.C.R. 30.

[27] [1980] 1 S.C.R. 714.

[28] [1978] 1 S.C.R. 559.

[29] (1976), 32 C.C.C. (2d) 416.

[30] (1968), 5 C.R.N.S. 101.

[31] When in this statement reference is made to “Respondent”, the parties are in fact referring to Robert Rothman, the appellant in this Court.

[32] [1914] A.C. 599.

[33] Cases pro and contra are exhaustively cited and analyzed by Kaufman, at pp. 81 -4, of his 3rd ed. of The Admissibility of Confessions, (1979).

[34] (1978),42 CC.C. (2d)-377.

[35] [1956] S.C.R. 958.

[36] [1949] S.C.R. 262.

[37] [1976] 1 S.C.R. 763.

[38] There are circumstances under which a citizen is under the obligation to answer certain police queries, i.e. Moore v. The Queen, [1979] 1 S.C.R. 195.

[39] (1783) 1 Leach, 263.

[40] [1978] 1 S.C.R. 559.

[41] [1979] 2 S.C.R. 376.

[42] [1971] S.C.R. 272.

[43] [1959] 2 Q.B. 340.

[44] [1949] A.C. 182.

[45] [1944] A.C. 315.

[46] [1935] A.C. 309.

 

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