Voluntariness: Operating Mind

The common law confessions rule requires the Crown to demonstrate beyond a reasonable doubt that a confession made by a suspect to a person in authority was voluntary.
The factors to be considered to determine whether a statement was made voluntarily are set out in R. v. Oickle, 2000 SCC 38 (CanLII). 

Voluntariness is shorthand for a complex of values.  A statement can be found to be involuntary if it is obtained as a result of threats, promises, inducements, oppression, or if the statement is taken when the person does not have an operating mind. 

Operating Mind

An individual has an operating mind as long as he knows what he is saying, that he is communicating with police officers, and what is at stake if he chooses to speak to police. 

Oickle supra at para 63 citing R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914 at p. 936. 

Factors to be considered in determining whether an accused had an operating mind at the time he gave a statement include whether

a)      the person is aware of their right to silence, was cautioned about the effect of giving an answer and knew this was a police investigation;

b)      the line of questioning was misleading or whether the person was confronted directly regarding the allegations;

c)      the person seemed generally aware of the potential legal consequences of his actions;

d)     he had consulted a lawyer before giving the statement;

e)      he refused to answer certain questions; and

f)      there was a confession.

R. v. D.M. 2012 ONCA 894 (CanLII), at paras. 39-48.



The symmetry between the common law confessions rule and related Charter rights

The operating mind test at common law fully answers the mental capacity requirement for an effective waiver of the right to counsel and the mental capacity necessary to make an active choice with respect to the right to silence.

R. v. Singh, [2007] 3 SCR 405, 2007 SCC 48 (CanLII), at para. 25;

R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914.


Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca






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