STATEMENTS
STATEMENT ADMISSIBILITY
STATEMENTSSTATEMENT ADMISSIBILITY
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FUNCTIONAL COMPETENCY
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TABLE OF CONTENTS
After successfully completing this module, each police officer will be able to:
PERSONS IN AUTHORITY
To determine admissibility of statements, courts look first to the person to whom the statement was given. If the person is not a person in authority, the admissibility of the statement is not subject to the same rules of admissibility. If an accused person, or suspect says something (orally or in writing) to a neighbour or a friend, what is said is admitted as evidence without coming under the same scrutiny that statements come under. If the accused's friend or neighbour is a person in authority or an agent of a person in authority, then what was said becomes a statement and is subject to the admissibility rules.
Person in authority is defined as:
Anyone engaged in the arrest, detention, examination or prosecution of the accused, and who is perceived by the accused as having authority or control over him(her).
A third party, including the parents of an accused who act in the presence or under the directions of the person in authority ( e.g. the police), will have their conduct questioned or examined as well, to ensure that it is also free of inducements. The third party involvement is primarily when the agent acts as a go-between by carrying inducements from the person in authority or, in the presence of the person in authority, used inducements apparently with the blessing of the person in authority.
An example would be: A statement is being taken by police from a young person, in the presence of his father. When asked by the police if he did something, his father says, "admit it, or I'll knock your block off." If the investigator does not correct this situation, that statement would probably be ruled to be an inducement by an agent.
The courts today can be very broad in their application of who can be a person in authority. In R. v. Downey, the courts ruled that the victim was a person in authority. In one lower court decision a father acting alone was determined to be a person in authority. These are not the norm, though, as it is absurd to imagine that a father would have to warn his child before asking him about an incident.
As far as statements are concerned with persons in authority, generally the following have been considered to be persons in authority: police, Crown attorneys, court officials, jail guards, matrons and probation officers, teachers and parents (young offenders), and social workers.
Because the accused person must believe that the person in authority can influence the case for or against him, then it follows that a police officer in disguise in an undercover operation would not be ruled as a person in authority. If the police officer is not recognized as a person in authority, then statements obtained by the undercover operator would not be subject to the same rules of admissibility.
While the main definition of a person in authority still applies, a Supreme Court of Canada decision in 1991, R.v. Broyles (1991), 9C.R.(4th) 1, 68 C.C.C. (3d) (S.C.C.) has stated that section 7 of the Charter of Rights guarantees the right to silence; this includes the right to choose whether to make a statement to authorities. This may be violated by the conduct of any agent of the state, not merely an undercover agent.
The test applied is whether the exchange between the accused and the informer would have taken place, in the form and manner in which it did, but for the intervention of the state or its agents.
The acquisition of evidence by a state agent only violates section 7 of the Charter of Rights if the manner of acquisition infringed the accused's rights to choose to remain silent. In each case, it must be determined whether there is a casual link between the conduct of the state agent and the making of the statement by the accused. Factors to be considered include the nature of the exchange and the relationship between the accused and the state agent.
Policy in this regard further clarifies the "desired" conduct by the undercover agent. The agent is to play a "passive" role as an undercover agent, and the information obtained should reflect a voluntary statement.
It is interesting to note in this interpretation by the court that they have stated that the accused has a right to silence guaranteed by Section 7 of the Charter of Rights. An examination of the section does not show any such guarantee. Nowhere in the Charter of Rights is such a guaranteed right mentioned. What has happened is the courts through interpretation have added another dimension and responsibility to statement takers. In R.v. Hebert, the SCC stated that section 7 accords a detained person a pre-trial right to remain silent, which extends beyond the narrow formulation of the confessions rule and is based upon the fundamental concept of a suspect's right to freely choose whether to speak to the authorities or to remain silent. An approach to pre-trial interrogation must emphasize the right of the detainee to make a meaningful choice and permit the rejection of statements obtained unfairly in circumstances that violate the right of choice.
The higher courts have ruled in R.v. Hebert (1990), 77 C.R.(3d) 145, 57 C.C.C. (3d) (Y.T.C.A.) that the right to remain silent is neither absolute nor does it extend to prohibit police from obtaining confessions in all circumstances. The right must be qualified by considerations of the state interest and the repute of the judicial system. The Clarkson standard relating to waiver of a Charter right does not apply to the right to silence. The ruling in this case is similar to the Supreme Court of Canada ruling in R.v. BROYLES that followed in terms of the conduct of the undercover agent and statements obtained as a result of that role.
INDUCEMENTS
The rules governing admissibility of statements deal with such things as voluntariness, inducements and threats. The courts have provided broad guidelines for admissibility of statements as they relate to these conditions. The voluntariness of a statement is just one condition, although a very important one. Similarly, the type of inducement is another condition. The courts will rule on the admissibility of a statement which is the final step. N.B. A statement will only be admitted if the court rules it is admissible.
This statement may sound like double-talk, but it really stresses where the decision is made and how uncertain some rules are relating to the admissibility of statements. The fact that a statement is voluntary would, generally, mean that the statement would be admitted; however, the accused's state-of-mind may have been a factor in the voluntariness, especially if he were drunk or even seriously impaired. Investigators must remember this very important element that voluntariness is only one part of getting a statement admitted. True, it is the most important element.
An inducement is defined as:
Obviously, the inducement must be from someone whom the accused believes is in a position to follow through, such as a person in authority. One form of inducement has been deemed to not affect the admissibility of statements is spiritual inducement. This is the only inducement accepted by the courts from persons in authority.
Some examples of inducements which would affect admissibility include the obvious ones such as violence, or threats of violence. Some of the more subtle forms are prolonged interrogation to the point where the accused person might, through fatigue, be able to show potential loss of judgement.
Promises or threats to any person relating to charges or reduction in charges, length of sentences, and intimidation could be construed as inducements. Even the wearing of sidearms has, in some cases, been regarded as a form of intimidation, and statements have been ruled inadmissible because a police officer did not remove his/her sidearm before taking a statement.
Trickery and deception are not normally regarded as inducements, but the cases would be judged on their merits, depending on the trickery or deception involved.
Lying to the accused may in some instances be regarded as an inducement, especially if the lie produced a statement that might have its truthfulness affected by the lie. [An example would be where an investigator lies to a suspect about what his partner (co-accused) has said, and then the suspect in a fit of rage gives a statement (lies) about the co-accused to get even with him over what he regards as lies.]
Recent court cases have broadened the definition of inducement by including such things as an offer to get psychiatric help for an accused. Where an officer volunteers to get psychiatric help for a suspect, this could and has been ruled to be an inducement, resulting in the exclusion of the statement.
In a Supreme Court decision ( R v. Robertson), the court ruled that an untrue statement (stratagem) used by the police, although untrue and which could induce a sense of fear in the accused, would not always render the statement inadmissible. The "fear" contemplated in 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. Therefore, the true test is:
The accused's state of mind at the time that the statement was taken has been subject to close examination by most courts during voir dire. Where the accused had been intoxicated by alcohol or had been suffering shock as a result of a motor vehicle collision, the impairment by the alcohol or the effects of the shock would be elements for consideration by judges at a voir dire. Since the most common problem relating to state of mind is intoxication or impairment, investigators must make detailed and accurate notes as to the accused's condition at the time of taking the statement. For major crime investigations where state of mind is even suspected of being a factor, investigators should consider the use of a breathalyzer if the accused is willing to consent.
Because an accused person is impaired does not rule out admissibility of any statement. In some higher court decisions, it was held that intoxication affected the weight of the statement and not the admissibility. However, in other decisions the voluntariness of the statement itself was questioned where impairment or intoxication was involved.
In the R v. Horvath court decision, the admissibility of a statement was broadened in the sense that it was from "an operating mind" (having free choice). While impairment is certainly a factor for consideration in this regard, other areas not so obvious should also be considered. The statement from an insane accused is not necessarily inadmissible. In R. v. Santinon the court stated that insanity goes to weight and a jury should be warned to consider whether a statement made by such a person should be given any credence at all.
Minor inducements such as coffee and cigarettes can be handled as common courtesies without becoming inducements, if the investigators treat them as such. If they were not handled that way by previous investigators, the inducement can be successfully removed by the use of the standard or secondary caution, using the following if it is consistent with the requirements of the courts in your jurisdiction:
"I wish to give you the following warning. You must clearly understand that anything said to you previously should not influence you or make you feel compelled to say anything at this time. Whatever you felt influenced or compelled to say earlier you are not now obliged to repeat nor are you obliged to say anything further, but, whatever you do say may be given as evidence. Do you understand what has been said to you?"
The Secondary Caution must always be used when the suspect has had any contact at all with persons in authority, including the detachment guard. If you are interviewing a person who has been in cells, make sure that the guard keeps detailed notes, as to any contact he/she has had with the suspect.
One so-called rule of confession, sometimes called the Ibrahim Rule, deals with persons in authority and inducements. This rule does have the force of law in Canada and states basically:
The crown must prove that the statement was free and voluntary in the sense that it was made to a person in authority without inducements.
With all the exceptions taking place in the courts today, this remains as the basic element to statement taking by persons in authority.
However, an expansion of this rule by the courts has resulted in statements being ruled to be inadmissible where the court felt that the accused person had been overborne.
Overborne has been stated to be from: Duress, intimidation, importunity (persistent troublesomeness), or sustained insistence or pressure.
In some cases the courts have complimented the investigating officer for his interrogation skills, but they rejected the statement because the investigator "overborne" the suspect. It is a fine line indeed, and it has been so for a long time. In 1949 in the Canadian Bar Review the following plea from J.L. SALTERIO appeared:
In addition to the basic requirements and the expanded reasons, the Charter of Rights has added its requirements:
Rene J. MARIN in Admissibility of Statements (1) has provided the following guidelines in a definition of what will bring the administration of justice into disrepute.
PROTECTED STATEMENTS
While many people believe that their conversations/statements to others, such as doctors and priests, are protected by law, these statements are not in fact protected by law from being admitted as evidence in court.
The only statements/conversations protected by law from being used as evidence in court are:
With a husband/wife relationship, there are some exceptions to the rule, and these are covered in section 4 of the Canada Evidence Act. Section 4 states that the spouse is a competent and compellable witness where the violations are: Sec 50(1) of the Young Offenders Act, sexual offenses, fail to provide necessaries, and offenses against the person where the victim is under the age of 14 years.
In addition to these exceptions, the Ontario Court of Appeal has ruled in R. v. Salituro (1991) 68 C.C.C. that irreconcilably separated spouses may be competent to testify against one another even if the charge does not fall within the common law exceptions or the exceptions mentioned in section 4(4) of the Canada Evidence Act. The following summary has been provided in that regard:
It is open to the courts to adapt and develop common law rules to reflect changing circumstances in society at large. While complex changes to the law with uncertain ramifications should be left to the legislature, the courts can and should make incremental changes to the common law to bring legal rules into step with the changing society. It was appropriate to change the common law of spousal incompetence to permit a spouse to testify for the Crown where the spouses are irreconcilably separated.
In another recent court case, R.v Gruenke, the Supreme Court of Canada confirmed that in certain situations courts will rule that confessions to clergy are legally admissible in criminal cases.
In a recent (1992) case, Gray 'et al', the court ruled that a conversation between a client and his solicitor was not protected when the client was a police officer and the solicitor was the Crown Prosecutor. While the conversations in that case were deemed to be admissible, it was a qualified exception to the rule. Other exceptions to this protection are where the conversations are a conspiracy to break the law.
The Charter of Rights provides another protection for a witness testifying in any proceeding. The person testifying has the right not to have any incriminating evidence so given used to incriminate him/her in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence.
DISCLOSURE
The requirement of the Crown to make full disclosure prior to trial has created some very serious problems for statement takers. In a recent high-profile trial in British Columbia, involving serious charges of sexual abuse, the case was dismissed because the Crown had not provided full disclosure. In another, even worse example, a municipal police force in British Columbia had charged a young offender with Breaking, Entering and Theft. They had, as required, provided full disclosure, including copies of the police exhibit reports and statements taken from a young female witness who attended the same school as one of the accused persons.
Copies of the statements from witnesses were circulated throughout the school by the accused person. In addition to the statement, copies of the police exhibit report and other materials were also circulated. The young female witness was harassed and threatened with injury/death. For her own personal safety she did not attend school for sometime and was tutored at home. The accused was suspended from the school for five days, as school officials felt the threats against the witness were real.
As a police officer you must be very much aware of this problem and keep abreast of court rulings. Without statements, the investigation may be unsuccessful and the community suffers. With statements, witnesses may be threatened and the community suffers.
Hopefully positive changes will soon take place in the area of disclosure, and police officers must keep abreast of those changes. Police officers should be aware of R. v. Stinchcombe (1991) 68 C.C.C. (3d) (S.C.C.).
This decision states that the Crown has an obligation to disclose all relevant material to the defence whether the material is exculpatory or inculpatory, regardless whether or not the Crown intends to introduce the material at trial. The evidence need not be credible or capable of becoming evidence, and any error in determining relevancy of information should be on the side of disclosure. Initial disclosure should occur before the accused is called upon to elect or plead, but there is a continuing obligation to disclose when additional material is received. There is some discretion to withhold or delay disclosure in some circumstances; for example, to protect the identity of informers, but that discretion is reviewable by the trial judge.
The two reasons advanced by the courts for disclosure are:
EXCEPTIONS TO DISCLOSURE (Subject to Crown Discretion, Crown Counsel Guidelines)
The areas listed are subject to change, with new case law appearing regularly. Similar to an earlier decision dealing with "trial within a reasonable time" (Askov (1990) (S.C.C.), the problems created by the initial interpretation required modification of the interpretation. Do NOT disclose:
ONUS ON STATEMENT TAKERS
In 1987 the Criminal Code was amended to include a new section to provide protection to citizens who were being questioned or interrogated. This was added to prevent "mistreatment" by officials, including police. The thrust or intent of section 269.1(1) is clearly aimed at statement-takers. Because this is such strong legislation it is reproduced here in its entirety for you.
Torture - Definitions - No Defence - Evidence
269.1(1) Every official, or every person acting at the instigation of or with the consent or acquiescence of an official, who inflicts torture on any other person is guilty of an indictable offence and is liable to imprisonment for a term not exceeding fourteen years,
(2) For the purposes of this section, "official" means
(a) a peace officer
(b) a public officer
(c) a member of the Canadian Forces, or
(d) any person who may exercise powers, pursuant to a law in force in a foreign state, that would in Canada be exercised by a person referred to in paragraph (a), (b), or (c), whether the person exercises powers in Canada or outside Canada;"torture" means any act or omission by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person
(a)for a purpose including
(i) obtaining from the person or from a third person information or a statement,
(ii) punishing the person for an act which that person or a third person has committed or is suspected of having committed, and
(iii) intimidating or coercing the person or a third person, or(b)for any reason based on discrimination of any kind, but does not include any act or omission arising only from, inherent in or incidental to lawful sanctions.
(3) It is no defence to a charge under this section that the accused was ordered by a superior or a public authority to perform the act or omission that forms the subject-matter of the charge or that the act or omission is alleged to have been justified by exceptional circumstances, including a state of war, a threat of war, internal political instability or any other public emergency.
(4) In any proceedings over which Parliament has jurisdiction, any statement obtained as a result of the commission of an offence under this section is inadmissible in evidence, except as evidence that the statement was so obtained. (1987, c. 13,s.2.)
Because the law has not been tested yet at the higher court level, analysis of it is very subjective, but still necessary.
The definition of torture includes the word "severe" which is defined in the dictionary as "hard to endure". This is left open to interpretation by the court. There are obviously different thresholds of pain and different levels of severe that would apply. What would be severe to an elderly feeble person may be regarded as mild and not severe or even normal to a street person.
Some parts of this section are quite clear though without being "tested".
Where this offence is found to have been committed, any statement will not be admitted into court.
Because the legislation is untested, the direction is uncertain. In a voir dire now dealing with the admissibility of statements, questions are asked of the statement taker concerning the voluntariness of the statement. "Did you threaten the statement giver?" "How long was the statement giver questioned?" "Were any inducements or threats offered?"
With this new legislation those questions have additional meaning. Not only is the voluntariness of the statement being referred to now, but the conduct of the statement taker is now being questioned and the wrong answers include an indictable offence liable to imprisonment up to 14 years.
The Charter of Rights with its section 24 appears to have changed the thrust of this legislation. Where there is any indication that a statement was taken under conditions less than ideal, the courts have found the statement to be inadmissible and in many cases have acquitted the accused to ensure that the administration of justice is not brought into disrepute.
Complete the Exercise/Quiz below to help you reinforce the material covered.
EXERCISE 1
1. Which one of the following examples is NOT, regarded as an inducement affecting admissibility?
2. A person in authority is defined as:
3. A third party or agent for a person in authority must always act in the presence of the person in authority. Please explain your answer.
4. Statements taken from a person who had a blood alcohol reading of .08 would:
5. When taking a statement from a person who you suspect might be impaired, you, the investigator, should:
6. Would a clergyman be considered a person in authority?
7. If an accused person made a statement to a clergyman, would the statement be admissible?
8. Name two types of statements, or conversations, or testimonies, that are protected by law from being used in courtroom proceedings.
9. Describe two exceptions to the protected statements/testimonies identified in Question #8.
10. Is an undercover agent a person-in-authority? Please explain.
11. Name one (1) reason a statement to an undercover agent may not be admissible in courtroom proceedings.
12. Name one (1) reason a statement to an undercover agent may be admissible in courtroom proceedings.
Please check your answers with those provided before continuing with this module.
Voir dire is an old French expression meaning roughly: "to see what is said". We think of it and refer to it as a trial within a trial. A voir dire is held by a justice/judge before he/she admits a statement unless there is a specific waiver by the accused. The accused may waive the voir dire, but the waiver must include an admission that the statement in question was voluntary.
The purpose of the voir dire is to determine if the statement was voluntary within the meaning of the Boudreau decision in 1949. This decision stated:
No statement of an accused is admissible unless it is shown by the prosecution to have been a voluntary statement, in the sense that it was not obtained from him by "fear or hope of advantage, exercised or held out to him, directly or indirectly by a person in authority".
(R v. Boudreau (1949) 94 C.C.C., 1. S.C.R. 262)
Where the trial is by jury, the jury will normally be excluded from a voir dire hearing. The judge will, however, wish to hear all persons who were present at the time the statement was being taken. For this reason members should be very much aware of who was present at the time the statement was taken. Even casual interruptions may turn into additional witnesses if not handled properly, especially if the person interrupting actually witnesses part of the statement-taking. To overcome casual contacts the investigator present throughout should be able to testify in detail to the contact, including everything said and done at that time.
In addition to evidence from witnesses at the time the statement was taken, the voir dire will consider how long it took to take the statement. Also, the statement itself will be examined. Furthermore, during the voir dire, the dress of the officers, the language of the officers, the attitude of the officers, and the state of mind of the accused will be examined. After having examined all the facts, the justice/judge will rule as to whether the statement is admissible or whether it is inadmissible.
If inadmissible, the statement will not be used in the trial, with some exceptions. Parts of an inadmissible statement that deal with facts that are confirmed as the truth by the finding of material evidence or property may have those parts of the statement used. An example is from the Wray case where a statement was ruled inadmissible during a voir dire. Part of that statement dealt with hiding the murder weapon in a tree where, subsequently, the weapon was found as described; therefore, that evidence and that part of the statement referring to it was admitted.
The exception to admissibility had in the past been unique in North America to the Canadian courts. It did not apply to American courts. However, the Charter of Rights and Freedoms may change this past exception of admitting those parts of statements. The Charter of Rights covers the exclusion of evidence where, " .. a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute." Even though the material evidence gained may be confirmed as the truth, it can now be excluded if the method of obtaining the evidence or statement was illegal or improper to the extent that the court felt that the administration of justice could be brought into disrepute.
As can be adduced from the above, investigators and statement-takers today have additional responsibilities when taking statements. Where their conduct was subject to examination with personal liabilities before, now the evidence itself may be excluded as well.
Statement taking today has become more important than ever. By having a statement not admitted today, the material evidence could also be excluded.
If you are ready, please proceed to the Criterion Test.
1. Admissibility of Statements. 6th edition. Rene J. Marin - Balmuir Book Publishing (1985)
© GRC-RCMP
ecdp1039.doc
August 5, 1997
Revised: July 31, 2000
Acquiring
and Analyzing Information - Conducting Investigations and Collecting Evidence
[Interviewing Witnesses]