R. v. Pearce (M.L.), 2014 MBCA 70
The phenomenon of false confessions
[48] A confession is a statement by an accused, whether by words or assertive conduct, to a person in authority, which the prosecutor seeks to introduce as part of their case. The statement can be either inculpatory, exculpatory, or both. The statement can address all or some of the material facts of the offence(s) the accused is being tried on; it need not be a full admission of guilt (Piché v. The Queen, 1970 CanLII 182 (SCC), [1971] S.C.R. 23 at 36-37; R. v. J. (J.T.), 1990 CanLII 85 (SCC), [1990] 2 S.C.R. 755 at 771; Commissioners of Customs & Excise v. Harz and Power (1967), 51 Cr.App.R. 123 at 155 (H.L.)).
[49] Historically an accused’s out-of-court statement to a person in authority is called a confession while a similar statement to someone who is not a person in authority is called an admission. That distinction is driven by the application of the confessions rule, where an accused’s statement to a person in authority is presumptively inadmissible unless demonstrated to be voluntary (R. v. Grandinetti, 2005 SCC 5 at paras. 34-45, [2005] 1 S.C.R. 27; R. v. Spencer, 2007 SCC 11 at para. 11, [2007] 1 S.C.R. 500; and R. v. S.G.T., 2010 SCC 20 at para. 20, [2010] 1 S.C.R. 688). The different terminology has nothing to do with the potential probative value of the statement. An admission may be more incriminating in a given context than a confession. For the purposes of my reasons I use these two terms inter-changeably by reference to the expression confession.
[50] A confession is like no other evidence. Our system of justice accepts that an accused can be convicted solely on the basis of their own confession without any confirmatory evidence of its truth (Kelsey v. The Queen, 1953 CanLII 5 (SCC), [1953] 1 S.C.R. 220 at 227-28; R. v. Singh, 2007 SCC 48 at para. 29, [2007] 3 S.C.R. 405). A confession is seen as such a powerful piece of evidence because of the logic that an innocent person is unlikely to incriminate themselves (R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 S.C.R. 449 at paras. 14, 17; and R. v. Rojas, 2008 SCC 56 at para. 35, [2008] 3 S.C.R. 111).
[51] Until recently there were few documented cases of false confessions leading to a wrongful conviction because of the difficulty of proving, post-conviction, that a confession was indeed false (The Honourable Fred Kaufman, The Admissibility of Confessions, 3d ed. (Toronto: The Carswell Company Limited, 1979) at 15-17).
[52] However, in R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, the Supreme Court of Canada recognized that false confessions during police interrogations do occur and can contribute to wrongful convictions. The phenomenon is, as Iacobucci J. explained, “counterintuitive” (at paras. 34-35):
…. … [I]t may seem counterintuitive that people would confess to a crime that they did not commit. And indeed, research with mock juries indicates that people find it difficult to believe that someone would confess falsely. ….
However, this intuition is not always correct. A large body of literature has developed documenting hundreds of cases where confessions have been proven false by DNA evidence, subsequent confessions by the true perpetrator, and other such independent sources of evidence. ….
[53] The counterintuitive nature of false confessions can lead to miscarriages of justice. Bruce MacFarlane, Q.C. explains:
False confessions easily lead to miscarriages of justice because of the significant impact they have on the decision-making process of justice officials and lay juries. Except in the rare situation where a perpetrator is actually caught in the act of committing the crime, a confession is regarded as the most powerful, persuasive, and damning evidence of guilt that the state can adduce. It follows, therefore, that a false confession is the most prejudicial evidence that can arise at trial. Judges and juries tend to disbelieve claims of innocence in the face of a confession, and are usually unwilling to accept that someone who has confessed did not actually commit the crime. [Footnotes omitted]
(Bruce MacFarlane, “Convicting The Innocent: A Triple Failure of the Justice System” (2006) 31 Man. L.J. 403 at 474.)
[54] According to Dr. Gisli Gudjonsson, a leading international researcher on false confessions, the extent of the problem is unknown, and cannot be estimated, as there is no adequate method to calculate false confession incident rates in any country (Gisli H. Gudjonsson, The Psychology of Interrogations and Confessions (West Sussex: John Wiley & Sons, Ltd., 2003) at 174-78).
[55] What little empirical evidence that does exist suggests the phenomenon of false confessions is real and cannot be ignored. In the United States of America, research about wrongful convictions has documented that false confessions occurred in 16 per cent of cases that resulted in post-conviction exonerations based on DNA evidence (Brandon L. Garrett, “Judging Innocence” (2008) 108 Colum. L.R. 55 at 88). According to the Innocence Project, that number rises to about 30 per cent of such cases if all forms of incriminating admissions, short of a full confession, are considered (Innocence Project, “False Confessions,” online: http://www.innocenceproject.org/understand/False-Confessions.php).
[56] Why someone would falsely confess to a particular crime is often difficult to pinpoint. Legal and academic sources cite frequent causes of a false confession in the context of a custodial interrogation as being a combination of factors such as: (1) the vulnerability of a suspect (e.g., low intelligence, poor memory, mental illness, youth or extreme age, a significant personality trait or disorder, the fulfillment of a psychological need such as a desire for notoriety or a temporarily diminished condition for reasons such as hunger, sleep deprivation or intoxicant withdrawal); (2) the circumstances and nature of the custodial confinement and interrogation; and (3) the manner of police interrogation (e.g., use of fabricated evidence) (Oickle at paras. 38-43, and The Psychology of Interrogations and Confessions at 173).
[57] According to Dr. Gudjonsson, some care must also be taken in analyzing the causes of false confessions because not every occurrence is a situation of the police inducing the innocent to say they are guilty. Some false confessions are made voluntarily and for a deliberate purpose. For example, sometimes a police interrogation is corrupted for reasons unknown to the police, particularly in situations where peer loyalty or peer pressure may be a factor. In such cases, according to Dr. Gudjonsson, suspects may falsely confess to protect others (The Psychology of Interrogations and Confessions at 177, and R. v. Phillion (R.J.), 2009 ONCA 202 at para. 203, 246 O.A.C. 317 (Phillion 2009)).
[58] Our system of justice accepts that police interrogation of a suspect, when properly done, is a “fruitful source” of information to solve crimes (Singh at para. 45). Together with that willingness to rely on confessions as evidence, however, is the countervailing desire to ensure that claims of false confessions have a fair process to ensure their proper adjudication.
[59] Judicial concern about false confessions is a longstanding rationale of the confessions rule (Singh at paras. 29-30, and John Henry Wigmore, Evidence in Trials at Common Law, revised by James H. Chadbourn (Boston: Little, Brown & Company (Canada) Limited, 1970) vol. 3 at 291-308). The Supreme Court of Canada in Oickle noted that the confessions rule is designed to address the most common type of false confession, the classical “coerced-compliant confession” (at para. 39) to a person in authority that is the product of improper inducements (such as a threat or promise) or oppressive circumstances (e.g., R. v. Eaton (1978), 1978 CanLII 2381 (MB CA), 39 C.C.C. (2d) 455 at 460 (Man. C.A)).
[60] However, by definition, it must be acknowledged that not all claims of false confession can be properly adjudicated by application of the confessions rule which focusses on the issue of voluntariness and is limited to statements made to persons in authority. The confessions rule can only exclude “putatively unreliable statements, not actually unreliable statements” (Hodgson at para. 19). As the Supreme Court of Canada explained in Oickle (at paras. 38-41) and Hodgson (at paras. 26, 30), there are examples of false confessions that may not be excluded from being admitted into evidence by the confessions rule, for example: false confessions without external pressure because of an ulterior purpose (notoriety, to relieve guilt, illness or a disorder, or to protect another); false confessions to escape the pressure of police interrogation; false confessions because of being temporarily persuaded of guilt by a skillful interrogator; and false confessions because of inhuman or degrading treatment by a person not in authority.
[61] While not argued in this case, I think it is important to note that the confessions rule is not the only judicial safeguard against false confessions (R v. Wells (S.W.), 2003 BCCA 242 at paras. 59-64, 181 B.C.A.C. 271). At common law a judge has discretion to exclude relevant and otherwise admissible evidence in two situations (R. v. Buhay, 2003 SCC 30 at para. 40, [2003] 1 S.C.R. 631). First, applying a cost-benefit analysis, a judge may exclude such evidence if its prejudicial effect exceeds its probative value (R. v. Seaboyer; R. v. Gayme, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at 610-11, and Mohan at pp. 20-21). In such cases the integrity of the jury’s reasoning is preserved by preventing their misuse or overuse of evidence of questionable value. Second, a judge may also exclude evidence if its admission would result in an unfair trial to an accused because of concerns about the process by which the evidence was obtained in the absence of a breach of the Charter (R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562 at paras. 23-24; R. v. Buric (1996), 1996 CanLII 1525 (ON CA), 28 O.R. (3d) 737 at 749-50 (C.A.), aff’d, 1997 CanLII 380 (SCC), [1997] 1 S.C.R. 535; and R. v. Osmar, 2007 ONCA 50 at para. 48, 84 O.R. (3d) 321, leave to appeal to S.C.C. ref’d, [2007] S.C.C.A. No. 157 (QL)).
[62] In a rare case where there is clear, cogent and compelling evidence that an otherwise admissible confession is false, a judge may be satisfied that it is necessary to use their common-law discretion to exclude the confession. Such an exercise of judicial discretion is not a backdoor way to usurp the role of the jury to determine the truth of a confession. Rather, such an exercise of judicial discretion is directed to preventing the unfairness of exposing an accused to the possibility of conviction on evidence upon which it would be unreasonable to rest a verdict (see R. v. Humaid (2006), 2006 CanLII 12287 (ON CA), 81 O.R. (3d) 456 at para. 57, leave to appeal to S.C.C. ref’d, [2006] S.C.C.A. No. 232 (QL); and R. v. Hay, 2013 SCC 61 at para. 41, [2013] 3 S.C.R. 694).
[63] Once a confession is determined to be admissible, the principal safeguard against a wrongful conviction based on a false confession is the trier of fact, in this case a jury, aided by the features of the adversary system, because the ultimate truth of a confession is a matter for the trier of fact (R. v. Gauthier, 1975 CanLII 193 (SCC), [1977] 1 S.C.R. 441 at 448-9; Erven v. The Queen, 1978 CanLII 19 (SCC), [1979] 1 S.C.R. 926 at 931; Park v. The Queen, 1981 CanLII 56 (SCC), [1981] 2 S.C.R. 64 at 77; and R. v. LaPointe and Sicotte (1983), 1983 CanLII 3558 (ON CA), 1 O.A.C. 1 at para. 39, aff’d 1987 CanLII 69 (SCC), [1987] 1 S.C.R. 1253).
[64] In cases of an alleged false confession, it is not uncommon for an accused to attempt to adduce expert evidence to explain why a confession, declared voluntary within the meaning of the confessions rule, is nevertheless false or unreliable (e.g., Phillion v. The Queen, 1977 CanLII 23 (SCC), [1978] 1 S.C.R. 18 at 22-24 (Phillion 1978)). Here, the appellant attempted to call expert evidence from Drs. Peterson and Moore to explain to the jury issues related to the phenomenon of false confessions and to give their opinion on the reliability of the appellant’s confession.
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