Voluntariness: The Need to Record the Interaction between the Police and the Accused

If the circumstances under which a confession is made raise a reasonable doubt about its voluntariness, it will not be admissible in evidence. The Crown bears the burden of satisfying the court beyond a reasonable doubt that the confession was voluntary.

R. v. Oickle, 2000 SCC 38 (CanLII).  

There is no absolute duty on police to record by means of audio or video devices, conversations with an accused in custody.

            R. v. Oickle, para. 47 and R. v. Moore-McFarlane, 2001 CanLII 6363 (ON CA).

However, creating such a recording is highly desirable and certainly avoids concerns and suspicions surrounding the taking of a statement where such contact is recorded electronically.

Onus on Crown to Establish a Sufficient Record of the Police-Accused Interaction

In R. v. Moore-McFarlane ­the Court of Appeal for Ontario held that as long as recording equipment is available, the failure to record will generally preclude a finding of voluntariness, except in the circumstance where the police officer did not set out to interrogate the suspect.

See also, R. v. Ahmed, 2002 CanLII 695 (ON CA), 2002 O.J. 4597 at para. 19.

The reason our courts have focused so heavily on the desirability of recording the interactions between police officers and accused persons upon arrest is to avoid credibility contests at trial on the crucial issue of whether any coercion, oppression or inducement led to the accused to make the impugned statement.

R. v. Ahmed, at para. 19.

The Crown has the onus to establish a sufficient record of the interaction between the suspect and the police.  When in custody where recording facilities are available, and where police deliberately set out to interrogate the suspect without giving thought to making a reliable record, the non-recorded interrogation is suspect.    

Moore-McFarlane, at para. 65.

As the Court noted in Moore-McFarlane, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.

Moore-McFarlane, at para.67.

It will be a matter for the trial judge on the voir dire to determine whether or not a sufficient substitute for an audio or video tape record has been provided to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt.

Moore-McFarlane, at para.65.

Unrecorded “Pre-Interviews”

Judges in numerous cases since Moore-McFarlane have commented unfavourably on the police conducting unrecorded “pre-interviews” with suspects. Yet, the practice continues.

“Pre-interviews”, are used by police, for instance, to advise an accused of the nature of the investigation, ensure that the accused understands her rights, determine whether the accused wishes to contact counsel, and determine whether the accused is prepared to give a video-taped statement.

It would seem likely that such interviews are not conducted with the intention (or at least the initial intention) of eliciting evidence from the suspect

However, there is no valid reason for the failure to record every interaction between an investigating police officer and a suspect in custody at a police station.

See for instance R. v. Smith, 2017 ONSC 2648 (CanLII), at para. 46, where the absence of a recording of the pre-interview with the accused contributed the Court’s reasonable doubt as to the voluntariness of the accused’s later recorded statement.

Did the Police Set Out to Interrogate the Suspect?

The question of the officer’s intention is a critical one on the voluntariness voir dire.  In Moore-McFarlane the Court of Appeal for Ontario held that as long as recording equipment is available, the failure to record will generally preclude a finding of voluntariness, except in the circumstance where the police officer did not set out to interrogate the suspect.

Therefore, where there is no recording, and the issue of the officer’s intention is in dispute, that is one of the circumstances where the trial judge must carefully analyze the conflicting evidence and give reasons which clearly explain why the judge either accepts the evidence of the police officer or officers, or conversely, why that evidence is rejected or is insufficient to satisfy the judge beyond a reasonable doubt.

R. v. Ahmed, at para. 19.

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