Les juges possèdent un pouvoir issu de la common law d'exclure une déclaration extrajudiciaire d'un accusé obtenue par la violence ou l'oppression, même si elle n'est pas fournie à une personne en situation d'autorité

R. v. Wells, 2003 BCCA 242

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[53]   The majority in Harrer and the unanimous court in Terry were of the opinion that if an accused is able to establish that the admission of evidence would violate his or her right to a fair trial, now recognized in ss. 7 and 11(d) of the Charter, the accused could seek exclusion of the evidence under s. 24(1) (para. 21 of Harrer; para. 25 of Terry).  Alternatively, McLachlin J., as she then was, said in Harrer that, under the common law, a trial judge has the discretion to exclude evidence where its prejudicial effect would outweigh its probative value and, as well, a judge may exclude evidence which was not obtained by Charter breach but which would render the trial unfair either at common law or under s. 24(1) of the Charter (paras. 41-43).

[54]   I agree with counsel for the respondent that the statements in Harrer and Terry may be viewed as having been taken by "persons in authority".  No one would argue that a police officer interrogating a person held in custody in that officer's country would be regarded as anything other than a person in authority.  The hope for advantage or fear of prejudice from a foreign police officer comes from the foreign officer's obvious authority over those in custody in the foreign country.  However, the fact that the interrogations in those cases were conducted by "persons in authority" does not undermine the appellant's proposition that where interrogations are not subject to s. 10 Charter scrutiny, but are obtained in circumstances of oppression and violence, the statements may nonetheless be excluded pursuant to the common law power to ensure a fair trial, now guaranteed by s. 11(d) and s. 7 of the Charter.  The observations in Harrer and Terry on trial fairness and the principles of fundamental justice, are the critical portions of those cases with respect to the arguments on this appeal. 

[55]   In Harrer, Mr. Justice La Forest considered the various remedies available for the exclusion of evidence:

[22]  ... the argument was strongly advanced that since there was no breach of the Charter in obtaining the evidence, a prerequisite to the power to exclude evidence under s. 24(2) of the Charter, there was no Charter-based jurisdiction to exclude evidence.  The difficulty with this contention is that it fails to appreciate the full nature of a fair trial.  As I mentioned, while s. 24(2) is directed to the exclusion of evidence obtained in a manner that infringed a Charter right, it does not operate until there is a Charter breach.  What we are concerned with here is not the remedy for a breach but with the manner in which a trial must be conducted if it is to be fair.

[56]   What La Forest J. was addressing in that passage was trial fairness, and not with the conventional way of dealing with exclusion of confessions.  Madam Justice McLachlin, as she then was, also considered trial fairness in Harrer, and quoted with approval, at para. 41, Lord Goddard's statement in Kuruma v. The Queen, [1955] A.C. 197 (P.C.) at 204, that at common law, a trial judge has discretion to exclude evidence "if the strict rules of admissibility would operate unfairly against the accused."

[57]   In Harrer, McLachlin J. also noted that evidence may render a trial unfair for a variety of reasons, stating that if evidence is obtained by abusive police conduct, admission of the evidence at trial may render the trial unfair.  Critical to the appellant's argument in this case, McLachlin J. also stated, at para. 46:

The way in which [evidence] was taken may render it unreliable.  Its potential for misleading the trier of fact may outweigh such minimal value it might possess. 

[58]   Madam Justice McLachlin further observed that, "In the case at bar, police abuse or unfairness is the only ground [of rendering a trial unfair] raised, and hence the only one with which we need concern ourselves."   While the Court did not have to go beyond the ground argued, McLachlin J. clearly envisaged that the manner in which evidence is obtained may render a trial unfair if the evidence were admitted and stated at para. 43 that in such situations, the evidence may be excluded pursuant to either the common law discretion or s. 24(1) of the Charter.

[59]   In my opinion, Hodgson, supra, does not stand as a bar to the possibility of evidence of a confession being excluded other than through the confessions rule.   In that case, Cory J. observed, at para. 26, that "there can be no doubt that there may well be great unfairness suffered by the accused when an involuntary confession obtained as a result of violence or credible threats of imminent violence by a private individual is admitted into evidence".  While Cory J. expressed the opinion that change to the common law confessions rule should be effected by Parliament, rather than judicially, because the change would represent a significant change from the traditional rule, Harrer and Terry indicate that an alternative to the common law confessions rule already exists in the law which would permit exclusion of evidence if required to ensure a fair trial.  In other words, Charter guarantees of trial fairness and fundamental justice may prompt exclusion of evidence regardless of whether the traditional common law confessions rule would reach the opposite result.

[60]   In R. v. Buric, supra, Labrosse J.A. expressed the opinion that the obiter dicta in Harrer and Terry regarding trial fairness cannot be taken to displace the general rule that relevant evidence is admissible and its weight is to be determined by the trier of fact.  Buric underlines the primacy of the general rule but, in that case, the evidence the trial judge had excluded was not the statement of an accused person, but of a witness whose evidence might have been tainted by the actions of the police.  The witness whose evidence the trial judge excluded in Buric would have been subject to cross-examination. 

[61]   In this case, the statements sought to be excluded from evidence were made by an accused person.  While the trial judge did not have the benefit of the appellant's testimony on the voir dire, it is apparent from his ruling on the voir dire and his reasons for judgment that he regarded the confession as being the product of the violence and threats of violence directed toward the appellant by the person to whom the confession was made.  When a confession is the product of violence and threats of violence, concerns about its reliability are obviously present. 

[62]   Even if a jury is instructed that a confession obtained by violence or oppression of a private person should be accorded "very little, if any, weight," the jury will still hear the confession.  Simply to admit evidence which should receive little or no weight takes no account of the probative value of the statement as compared to its prejudicial effect on an accused.  As Cory J. stated in Hodgson at para. 14, "[e]vidence of a confession has always been accorded great weight by triers of fact.  This is a natural manifestation of human experience."  Thus, if a statement obtained by violence or threats of violence is not excluded, an accused faces a substantial risk of prejudice by a confession that may have little, if any, probative value. 

[63]   Mr. Justice Cory observed in Hodgson that legislative change in this area of confessions law is desirable and suggested that until legislative change could be effected, an instruction ought to be given to make clear that a confession obtained in circumstances of violence or oppression ought to be given little or no weight.  In effect, that is what the trial judge did in this case.

[64]   The arguments in Hodgson addressed the possible modification of the common law confessions rule and the opinion of the majority addressed that question.  But in my respectful view, the majority opinion in Hodgson cannot be taken to require that all confessions to persons not in authority, regardless of whether the confession is obtained by violence or threats of violence, must be admitted into evidence.  To so hold would ignore the court's discretion to exclude evidence, the probative value of which is outweighed by it prejudicial effect, and the power and discretion of the courts to ensure the fair trial of an accused.

[65]   In my opinion, this is a case in which it was open to the trial judge to exclude the appellant's statements obtained in circumstances of violence and threats of violence on the basis that the potential prejudicial effect of the evidence outweighed its probative value.  However, that was not a question the trial judge was asked to consider on the voir dire to determine whether the statements ought to be excluded from evidence. 

Revue du droit quant aux fausses confessions et les méthodes qu'ont les Tribunaux pour exclure pareilles déclarations

R. v. Pearce (M.L.), 2014 MBCA 70

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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.