R. v. Fernandes, 2016 ONCA 772
(a) General Principles
[21] The law regarding voluntariness is well settled and need not be reviewed in detail for the purposes of this appeal.
[22] Because of the criminal justice system’s overriding concern not to convict the innocent, for a statement made to a person in authority to be admissible it must be voluntary. This is known as the confessions rule. The onus to establish the voluntariness of a statement lies with the Crown, and it must be proven beyond a reasonable doubt.
[23] When reviewing a confession, a trial judge should consider all the relevant factors to understand whether the circumstances surrounding the confession give rise to a reasonable doubt as to the confession’s voluntariness. The relevant factors include: oppression, threats or promises (i.e. inducement), the operating mind requirement, and police trickery: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3.
[24] In R. v. Whittle, 1994 CanLII 55 (SCC), [1994] 2 S.C.R. 914, Justice Sopinka, writing for the court, summed up the analysis with the following question, at para. 31: "Did the action of police authorities deprive the suspect of making an effective choice by reason of coercion, trickery, misinformation or the lack of information?"
[25] In the present case, the trial judge concluded beyond a reasonable doubt that the respondent had the required operating mind. There was also no issue of police trickery. The trial judge’s analysis focused on the issues of oppression and inducement. I turn now to that analysis.
(b) Inducement
[26] Where the state induces a suspect to confess, regardless of whether the inducement comes in the form of a threat or a promise, the confession will be inadmissible when the inducement, whether standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne: Oickle, at para. 57.
[27] The most important consideration in determining whether the accused's statement has been induced by such a threat or promise is whether there was a quid pro quo offer by the interrogators. A quid pro quo offer is an inducement for the suspect to confess that raises the possibility that the suspect is confessing, not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator: R. v. Heatley, 2015 BCCA 350, 375 B.C.A.C. 194, at para. 6, and Oickle, at para. 56.
[30] Second, the act of supplying accurate factual information to an accused does not constitute an inducement: R. v. Backhouse (2005), 2005 CanLII 4937 (ON CA), 195 O.A.C. 80 (C.A.), R. v. Teske (2005), 2005 CanLII 31847 (ON CA), 202 O.A.C. 239 (C.A.). Officer Sowyrda had a duty to provide information to the respondent regarding his potential jeopardy. Indeed, if he did not do so, the statement made by the respondent could potentially be found to be involuntary on that basis. I agree with the submission of the Crown that police officers should not be placed in an untenable position where both providing and failing to provide suspects with information about their potential jeopardy could each render statements inadmissible.
(c) Oppression
[33] A statement of an accused will be rendered involuntary and inadmissible where the conduct of a police officer or the circumstances of the detention are so oppressive as to raise a doubt whether the accused was able to make an independent choice to speak to the police or remain silent: Lederman, Bryant and Fuerst, The Law of Evidence in Canada, 4th ed. (Markham: LexisNexis, 2014), at para. 8.63.
[34] Examples of oppressive conditions include situations where the detainee is deprived of food, clothing, sleep, or medical attention. Excessively aggressive, intimidating questioning by the police for a prolonged period of time may also constitute oppression: Oickle, at paras. 59 to 62, R. v. Hoilett 1999 CanLII 3740 (ON CA), [1999], 121 O.A.C. 391 (C.A.), at paras. 25-26.
[36] Under the confessions rule, the oppressive conditions must be caused or created by the state. The concern underlying this part of the rule is that state agents may abuse their authority over an accused to effectively negate the accused’s ability to make an independent decision to speak to the authorities: Oickle, at para. 60. Here the trial judge found that the conduct of the police was “unimpeachable” and “blameless.” Given these findings, it is not possible that oppression was a factor.
[37] The trial judge also found that the respondent had an operating mind. Consequently, in the absence of police misconduct, he was responsible for his decision to speak to police and not maintain his right to silence. As Justice Sopinka put it in Whittle, at para. 55: “Inner compulsion, due to conscience or otherwise, cannot displace the finding of an operating mind unless, in combination with conduct of a person in authority, a statement is found to be involuntary.” While the respondent’s inner compulsion may have led to his confession, there was nothing in the conduct of the police that would render the statement involuntary.
(d) Conflation of Roles
[39] The Crown submits, and I accept, that the trial judge’s ruling demonstrates that she conflated her role on the voir dire of determining whether the statement was voluntary with her role at trial of determining if the statement is reliable.
[42] The effect of this error is that it deprived the Crown of the opportunity to tender the statement in the context of all of the evidence at trial to prove its veracity beyond a reasonable doubt. In other words, by conflating the two exercises the trial judge considered the ultimate reliability of the statement without the benefit of the rest of the evidence.
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