Voluntariness: Police Trickery and the Accused’s Statement

The Common Law Confessions Rule

An accused’s statement to a person in authority is only admissible at his trial if it is proved that the statement was given voluntarily:

R. v. Oickle, 2000 SCC 38 (CanLII), [2000] 2 S.C.R. 3; R. v. Spencer, 2007 SCC 11 (CanLII), [2007] 1 S.C.R. 500, at para. 11.

 All of the relevant circumstances surrounding the making of the statement must be considered. While the test is objective, the individual characteristics of the accused are relevant in the application of the objective test.

R. v. Singh, 2007 SCC 48 (CanLII), [2007] 3 S.C.R. 405, at para. 36.

The Crown bears the burden of proving voluntariness beyond a reasonable doubt.

Oickle, at para. 30.

In R. v. Spencer, 2007 SCC 11 (CanLII), [2007] 1 S.C.R. 500,  Deschamps J. summarized the common law confessions rule at para. 12:

In Oickle, the Court recognized that there are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority, including the making of threats or promises, oppression, the operating mind doctrine and police trickery. Threats or promises, oppression and the operating mind doctrine are to be considered together and “should not be understood as a discrete inquiry completely divorced from the rest of the confessions rule” (Oickle, at para. 63). On the other hand, the use of “police … trickery” to obtain a confession “is a distinct inquiry … [given that] its more specific objective is maintaining the integrity of the criminal justice system” (para. 65).

Police Trickery

The inquiry as to whether there has been any police trickery used in obtaining a statement concerns itself with preserving the integrity of the administration of justice. There is nothing wrong with the police tricking an accused. It  crosses the line from voluntariness to involuntariness where the police conduct might shock the community.

As noted by Lamer J. (as he then was) in R. v. Rothman, 1981 CanLII 23 (SCC), [1981] S.C.J. No. 55, [1981] 1 S.C.R. 640, at para. 127:

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 Queensbury 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.

The police trickery inquiry is directed to preserving the integrity of the administration of justice by ensuring that the accused is not unfairly denied her right to silence.  It is an analog to the abuse of process doctrine.

A review of the jurisprudence indicates that it would currently take a great deal for police trickery to rise to the level of shocking the community:

·         The Supreme Court of Canada has affirmed that the “common police tactic of gradually revealing (actual or fake) evidence to the detainee in order to demonstrate or exaggerate the strength of the case against him” is an acceptable police tactic (R. v. Sinclair, 2010 SCC 35 (CanLII) at para. 60 (per McLachlin C.J and Charron J.) and para. 83 (per Binnie J.). See also Oickle at paras. 61 and 100: “[M]erely confronting a suspect with adverse evidence – even exaggerating its accuracy and reliability – will not, standing alone, render a confession involuntary.”

·         In Oickle, the Supreme Court of Canada gave examples of what might “shock the community”: a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin.

·         R. v. Corak (1994), 1994 CanLII 612 (BC CA), 29 C.R. (4th) 388 (B.C.C.A.):  police put a baseball cap found near the crime scene in a prominent place in the police station, and the accused claimed it as his when he saw it.  The Court of Appeal held that the "trick" was an entirely passive one, absent of subterfuge or pressure, and was a device of the sort that police officers are certainly expected to employ in the normal course of investigation.

·         R. v. Grouse, 2004 NSCA 108 (CanLII):  the police falsely told the appellant that they had found gun shot residue on his hands. Statement upheld as voluntary.

Defence lawyers are likely to have more success arguing that police trickery created or contributed to an oppressive atmosphere sufficient to raise a reasonable doubt as to whether the statement was voluntary (or in the language of Oickle, that the will of the subject was overborne).

In Oickle, the Supreme Court of Canada recognized that in assessing oppression, courts should consider, among other things, whether the accused was confronted with fabricated evidence, as presenting a suspect with fabricated evidence has the potential either to persuade the susceptible suspect that he did indeed commit the crime, or at least to convince the suspect that any protestations of innocence are futile.

Impressing upon a suspect the overwhelming nature of the case against him may create an atmosphere of oppression sufficient to have the accused’s statement rendered inadmissible.

See for instance R. v. Hammerstrom, 2006 BCSC 1700 (CanLII), where the police representation that they had incontrovertible evidence (surveillance video) linking the accused to the crime scene was central to the creation of an atmosphere of oppression, which led the accused to confess. 


Stuart O'Connell, O'Connell Law Group (leadersinlaw.ca)