The Confessions Rule and the Charter

to persons

The confessions rulethe requirement that the
Crown prove the voluntariness of the accuseds
statements
in authorityis a well-
established rule of criminal evidence and is closely
connected with the constitutional principle against self-
incrimination that it structures. The confessions rule is
thus a natural candidate for recognition as a principle of
fundamental justice under section 7 of the Canadian
Charter of Rights and Freedoms. However, there are
two distinct routes by which the confessions rule might
be constitutionalized. Under the rule of evidence
approach, the confessions rule would be recognized as
an aspect of the accuseds constitutional right to a fair
trial. Under the rights violation approach, the conduct
of the state in obtaining an involuntary statement would
be treated as a violation of the accuseds constitutional
rights.
In R. v. Singh, despite having previously adopted

the rule of evidence approach, the Supreme Court of
Canada applied the rights violation approach and
linked
the confessions rule very closely to the
constitutional right to silence. In so doing, the Court
conflated the distinct protections offered by the right to
silence on the one hand and the confessions rule on the
other, particularly when Singh is read in light of other
recent cases that appear to weaken the confessions rule.
Fortunately, the Courts recent decisions concerning the
confessions rule may also be read as instances of
appellate deference to trial judges factual findings on
voir dires. Thus, they leave room for the recognition
that neither the right to silence nor the confessions rule
is reducible to the other, and that each has a distinct role
to play: the right to silence protects the accuseds
decision to speak at all, while the confessions rule
concerns the accuseds motivations for speaking as he
or she did.

La rgle des confessions, qui requiert que la
Couronne prouve
caractre volontaire des
dclarations de laccus aux autorits, est une rgle de
preuve bien tablie en droit criminel. Elle lie et structure
le principe constitutionnel empchant
laccus de
sincriminer. La rgle des confessions pourrait donc tre
reconnue comme principe de justice fondamentale en
vertu de larticle 7 de la Charte canadienne des droits
et liberts. La rgle des confessions pourrait tre
constitutionnalise de deux manires distinctes. Selon
une approche insistant sur les rgles de preuve, la rgle
des confessions serait reconnue comme composante du
droit constitutionnel de laccus un procs quitable.
Selon une approche insistant sur la violation des droits,
la conduite de ltat dans lobtention dune dclaration
involontaire serait traite comme une violation des
droits constitutionnels de laccus.
Dans R. c. Singh, bien quelle ait auparavant

adopt lapproche des rgles de preuve, la Cour
suprme du Canada a appliqu lapproche de la
violation des droits et a fermement rattach la rgle des
confessions au droit constitutionnel au silence. Ce
faisant, la Cour a fusionn les protections distinctes
offertes par le droit au silence et par la rgle des
confessions, particulirement lorsque laffaire Singh est
interprte la lumire dautres dcisions rcentes qui
semblent
confessions.
Heureusement, les dcisions rcentes de la Cour
concernant la rgle des confessions peuvent aussi tre
vues comme des exemples de dfrence des instances
dappel envers les conclusions de faits des juges de
premire instance relativement des voir-dires. Ainsi, il
est encore possible daffirmer que le droit au silence et
la rgle des confessions ne sont pas rductibles lun
lautre et ont chacun un rle distinct jouer. Le droit au
silence protge la dcision de laccus de parler ou non,
alors que la rgle des confessions concerne ses motifs
davoir parl tel quil la fait.

affaiblir

des

la

rgle

The Confessions Rule and the Charter

Hamish Stewart*

le

* Faculty of Law, University of Toronto. I am very grateful to two anonymous readers, Thomas
Cromwell, Erin Morgan, Marc Rosenberg, and the participants in a Faculty Workshop at the Faculty
of Law, University of Toronto, for their comments on drafts of this paper. I also thank Michael Code,
Martha Shaffer, Christopher Sherrin, Don Stuart, and Stephen Waddams for their comments on a draft
of a related paper, and Robert Brews for a helpful inquiry

Hamish Stewart 2009
To be cited as: (2009) 54 McGill L.J. 517
Mode de rfrence : (2009) 54 R.D. McGill 517

MCGILL LAW JOURNAL / REVUE DE DROIT DE MCGILL

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Introduction

I. The Principle Against Self-Incrimination

II. The Confessions Rule Restated

III. Two Approaches to Constitutionalizing the Confessions

Rule
A. G.(B.): The Rule of Evidence Approach
B. Singh: The Rights Violation Approach

IV. Voluntariness and Silence: The Confessions Rule after

Singh
A. Functional Equivalence
B. The Overborne Will
C. Deferring to Trial Judges

V. The Confessions Rule and the Principle Against Self-

Incrimination

Conclusion

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520

524

529
530
532

535
535
538
540

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H. STEWART THE CONFESSIONS RULE AND THE CHARTER

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Introduction

The common law confessions rulethe requirement that the prosecution prove
the voluntariness of an accuseds statements to persons in authorityhas a close
relationship with the constitutional principles that govern criminal trials. Thus, the
Supreme Court of Canadas recent recognition of the confessions rule as a principle
of fundamental justice1 is unsurprising, particularly since doctrines that were less
securely rooted in the common lawsuch as the right to silencehave already been
recognized as principles of fundamental justice under section 7 of the Canadian
Charter of Rights and Freedoms.2 But the constitutionalization of the confessions rule
raises questions of both structure and content. The structural question involves the
relationship between the common law rules of evidence and the accuseds
constitutional rights. The Supreme Court of Canada has adopted two different
approaches to this structural question. Under what I will call the rule of evidence
approach, the common law rules governing the admissibility of the accuseds
statements are understood as an aspect of the accuseds procedural right to a fair trial
under section 7. Under what I will call the rights violation approach, the conduct of
the state in obtaining an involuntary statement is treated as a violation of the
accuseds substantive constitutional rights. The question of content has to do with the
strength of the protection offered by the constitutionalized confessions rule and with
its relationship to other constitutional rights.
The question of structure and the question of content may seem separate in

principle, but in this paper I argue that the Supreme Court of Canada may have
weakened the content of the confessions rule in part because it has structured the
constitutional version of the rule as a rights violation. Specifically, in Singh, the Court
appears to have constitutionalized the confessions rule by linking it tightly to the pre-
trial right to silence. This approach conflates the distinct protections offered by the
right to silence on the one hand, and the confessions rule on the other. While both
doctrines are branches of the overarching principle against self-incrimination, neither
one is reducible to the other. The pre-trial right to silence protects a detainees right to
choose whether to speak to the police at all; the confessions rule protects the accused
from the prosecutors use of his or her involuntary statements used at trial. While both
rules lead to the exclusion of statements at trial, they do so by very different routes:
the exclusion of a statement obtained in violation of the right to silence is a
constitutional remedy under section 24 of the Charter, while the exclusion of an
involuntary statement is simply a rule of evidence intended to protect the trier of fact
from hearing potentially unreliable information. Thus, if the confessions rule is to be
constitutionalized as a principle of fundamental justice under section 7 of the Charter,
it should be treated as an aspect not of the right to silence but of the right to a fair

1 R. v. Singh, 2007 SCC 48, [2007] 3 S.C.R. 405, 285 D.L.R. (4th) 583 [Singh].
2 R. v. Hebert, [1990] 2 S.C.R. 151, 77 C.R. (3d) 145 [Hebert cited to S.C.R.]; Part I of the

Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7 [Charter].

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trial. Fortunately, the Courts recent decisions concerning the confessions rule do not
foreclose this method of incorporating the confessions rule into section 7 because
these decisions can be read not as changing the content of the common law rule but as
instances of appellate deference to fact-finding on voir dires.3 As a constitutionalized
rule of evidence, a robust common law confessions rule can still take its proper
placealongside the pre-trial right to silence under section 7as an aspect of the
constitutional principle against self-incrimination.

[Vol. 54

I. The Principle Against Self-Incrimination

It has often been said that respect for human dignity has been an important
organizing principle of constitutional law since the Charter came into force.4
Although courts have been unwilling to recognize respect for human dignity as a
principle of fundamental justice in itself under section 7, the idea of human dignity
provides a normative benchmark for specific Charter rights.5 The precise meaning
and scope of the requirement that the state respect human dignity are neither wholly
clear nor uncontested. But, at a minimum, respecting human dignity must mean that
the state has an obligation to treat each individual as an end and not as a means to, or
a resource to be exploited for, achieving the states ends or the ends of other
individuals.

The principle against self-incrimination is a very basic norm for a system of
criminal justice in a constitutional order that is committed to human dignity. It is a
well-recognized principle of fundamental justice within the meaning of section 7.6
The core idea of the principle is that when the state uses its power to prosecute an

3 In addition to Singh (supra note 1), I will be concerned particularly with the following: R. v. G.(B.),
[1999] 2 S.C.R. 475, 174 D.L.R. (4th) 301 [G.(B.) cited to S.C.R.]; R. v. Oickle, 2000 SCC 38, [2000]
2 S.C.R. 3, 187 N.S.R. (2d) 201 [Oickle]; R. v. Tessier, 2002 SCC 6, [2002] 1 S.C.R. 144, 250 N.B.R.
(2d) 203 [Tessier], revg 2001 NBCA 34, 245 N.B.R. (2d) 1, 153 C.C.C. (3d) 361 [Tessier (C.A.)]; R.
v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, 276 D.L.R. (4th) 565 [Spencer], revg 2006 BCCA 81,
207 C.C.C. (3d) 47 [Spencer (C.A.)].

4 Compare Lorraine E. Weinrib, Human Dignity as a Rights-Protecting Principle (2005) 17

N.J.C.L. 325.

5 See e.g. Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R.
307 at para. 97, 190 D.L.R. (4th) 513; Euteneier v. Lee (2005), 77 O.R. (3d) 621 at para. 63, 260
D.L.R. (4th) 123 (Ont. C.A.). See also R. v. Kapp, 2008 SCC 41, [2008] 2 S.C.R 483 at paras. 20-25,
294 D.L.R. (4th) 1 (on the difficulty of using the idea of human dignity as a legal principle under s. 15
of the Charter).

6 Charter, supra note 2, s. 7: Everyone has the right to life, liberty and security of the person and
the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Since the right to liberty is always at stake in a criminal prosecution, criminal proceedings must
always comply with the principles of fundamental justice. For an overview of the extensive case law
on how a court determines whether to recognize a given legal idea as a principle of fundamental
justice, see Robert J. Sharpe & Kent Roach, The Charter of Rights and Freedoms, 3d ed. (Toronto:
Irwin Law, 2005) c. 13.

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individual for a criminal offence, the individual ought not to be required to assist the
state in the investigation or trial of the offence. And it is striking that the Supreme
Court of Canada has identified the principle against self-incrimination as [p]erhaps
the single most important organizing principle in criminal law,7 and has linked it
with many rules of evidence and procedure. Instances of this principle include the
express protection against self-incrimination in section 13 of the Charter,8 the rule
against the Crowns splitting its case,9 the common law confessions rule,10 the
Charter right to silence,11 the doctrine of derivative-use immunity under section 7,12
and the line between permissible and impermissible uses of the states power to
compel the production of information.13 This constellation of common law and
constitutional rules provides powerful protection against the states use of the
testimony of suspects and accused persons against their will in the investigation and
prosecution of criminal offences.14

The limit on state power imposed by the principle against self-incrimination is
supported by both a principled and a pragmatic consideration. The principled
consideration is rooted in the requirement that the criminal process respect the basic
human dignity of those who are subject to it. To allow the state to force a suspect or
an accused person to testify in support of the states case against him or her would be
to treat this person as a mere means to the states objectives (particularly the
prevention and punishment of crime), rather than as an end. This consideration,
though obviously applicable to the factually innocent, may not seem very compelling
where the accused individual is guilty of a serious crime, particularly one that
involved an attack on the dignity and worth of others. But the presumption of
innocence means precisely that the system of criminal justice must assume that the

7 R. v. P.(M.B.), [1994] 1 S.C.R. 555 at 577, 17 O.R. (3d) 782.
8 The Courts most recent consideration of s. 13 is found in R. v. Henry (2005 SCC 76, [2005] 3

S.C.R. 609, 376 A.R. 1 [Henry]).

9 R. v. P.(M.B.), supra note 7.
10 Singh, supra note 1.
11 Hebert, supra note 2.
12 R. v. S.(R.J.), [1995] 1 S.C.R. 451, 96 C.C.C. (3d) 1.
13 R. v. Jarvis, 2002 SCC 73, [2002] 3 S.C.R. 757, 317 A.R. 1.
14 The principle against self-incrimination is generally thought not to protect the accused against
lawful procedures that involve the use of only his or her body, such as fingerprinting or the taking of
bodily samples for forensic analysis. See e.g. R. v. B.(S.A.), 2003 SCC 60, [2003] 2 S.C.R. 678, 339
A.R. 1; R. v. Colson, 2008 ONCA 21, 88 O.R. (3d) 752, 166 C.R.A. (2d) 103. But the availability of
these procedures is usually conditioned on a police officers reasonable grounds to believe that the
accused was involved in an offence and that the procedure will yield some evidence. These
requirements reflect, in a different way from the principle against self-incrimination, the requirement
that suspects have to be treated as ends in themselves. They cannot simply be used as resources for the
prosecution at the investigators discretion, but rather, they must be treated in accordance with the law,
which must satisfy constitutional guarantees such as the protection of reasonable expectations of
privacy. Thus, when the state unlawfully uses the accuseds body, the evidence obtained is sometimes
said to have a self-incriminating character (R. v. Stillman, [1997] 1 S.C.R. 607 at 655, 144 D.L.R. (4th)
193 [Stillman]), though this view is by no means unanimously held.

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accused individual is not guilty. It must therefore protect the dignity to which an
innocent person is entitled until guilt is established by proper means. The fact that the
person may, at the end of the process, be found guilty of a serious crime does not
change the normative requirement that the state respect the principle against self-
incrimination during the process itself.

The pragmatic consideration supporting the principle against self-incrimination is
simply that forcing the accused to provide testimony is unlikely to produce a verdict
that is more accurate or just than it would be without his or her forced testimony. The
common law has long recognized that coercive police tactics are likely to produce
statements from suspects that are designed to satisfy the police and alleviate the
coercion rather than to be truthful and reliable.15 More recently, social scientists and
other observers of the justice system have learned that some modern techniques of
interrogation, though not as obviously coercive as violence and threats, may also have
the kind of coercive effect that can produce unreliable confessions.16 A coerced
confession admitted into evidence at trial has a substantial prejudicial effect on the
trial process because jurors find it difficult to accept the possibility that a person
would falsely admit to a crime. They therefore tend to overvalue a coerced
confession.17

This normative understanding of the principle against self-incrimination should
be kept in mind in any discussion of the content and the constitutional status of the
confessions rule. The principle against self-incrimination does not mean that a suspect
is prohibited from providing incriminating statements; it means that the state cannot
require a suspect to incriminate himself or herself. Where a suspect freely chooses to
co-operate with the states investigation, even to the point of admitting full
responsibility for the crime, the principle against self-incrimination is not infringed.
The difficulty, of course, is in deciding what exactly it means for the suspect to freely
choose to co-operate. The confessions rule provides part of the answer. It is intended
to ensure that the content of a suspects statement to a person in authority reflects his
or her own reasons for speaking, such as a genuine desire to confess or at least to talk
about the offence at issue, and not by extraneous reasons such as responding to
improper conduct by state agents. The common law confessions rule therefore
excludes statements made in response to threats and promises because of the
likelihood that the suspect was motivated by the desire to avoid the threatened
consequence or to obtain the promised benefit, rather than by the desire to speak for
his or her own reasons. The constitutional right to silence provides another part of the

15 R. v. Warwickshall (1783), 168 E.R. 234, 1 Leach 263; Bram v. United States, 168 U.S. 532 at

547-48 (1897); R. v. Hodgson, [1998] 2 S.C.R. 449 at 462, 163 D.L.R. (4th) 577 [Hodgson].

16 Richard A. Leo, Police Interrogation and American Justice (Cambridge: Harvard University
Press, 2008) at 119-236. See also Christopher Sherrin, False Confessions and Admissions in
Canadian Law (2005) 30 Queens L.J. 601.

17 Leo, ibid. at 195-98, 246-68; Oickle, supra note 3 at paras. 35-36.

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answer. It is intended to protect the accuseds right to choose whether to speak to the
authorities at all.

The overarching principle against self-incrimination cannot, by itself, determine
the precise content of the confessions rule, or of any other rule of evidence or
procedure. There may be institutional differences in the way that legal systems
manifest this principle. There may also be reasonable disagreement about the extent
to which any given rule of evidence or procedure is consistent with this principle.
Consider, for example, the Canadian holding that neither the common law
confessions rule nor the section 7 right to silence applies to a suspects statement
where the suspect is not in custody and does not know that the listener is a person in
authority.18 On the one hand, it might be argued that this rule of evidence complies
with the principle against self-incrimination in that the suspect who freely, albeit
foolishly, confesses to an undercover state agent is not being used by the state; rather,
the state is simply taking advantage of the suspects voluntary decision to furnish
evidence against himself or herself, as if he or she had been speaking to another
private individual. On the other hand, it might be argued that this rule of evidence
violates the principle against self-incrimination in that the state uses deceit and
trickery to deprive the suspect of the ability to make a properly informed decision
about whether to speak.

The principle against self-incrimination does not fully determine this issue, so
there may be room for pragmatic considerations to come into play. For example, if
undercover police tactics are likely to produce unreliable statements, that fact would
count against the Canadian rule. Furthermore, there is undoubtedly room for other
rights and institutional factors to influence the content of the rule. The significant
duties imposed on the police as a consequence of the subsection 10(b) right to
counsel, for example, may affect the content of the section 7 right to silence. Once the
police have complied with their subsection 10(b) duties and the detained suspect has
spoken to counsel, it is assumed that he or she has been vigorously advised to remain
silent. Consequently, the positive duties on the state to respect the right to silence are
perhaps less demanding than they would be if the suspect did not have a strong right
to confer with counsel on arrest.19 Pragmatic factors may even influence the content
of a right; if a particular way of specifying the right eases the task of law enforcement
without encroaching on the core of the principle against self-incrimination, there
would be a pragmatic argument for specifying the right that way.

But it would be a mistake to take this pragmatic point as a general warrant to
articulate the confessions rule, or any other rule, in a way that makes it easier to get a

18 Hebert, supra note 2; R. v. Wells, [1998] 2 S.C.R. 517, 163 D.L.R. (4th) 628; Hodgson, supra note

15; R. v. Grandinetti, 2005 SCC 5, [2005] 1 S.C.R. 27, 363 A.R. 1.

19 This theme is quite explicit in a number of cases. See Hebert, supra note 2 at 176-77; R. v.
Osmond, 2007 BCCA 470, 227 C.C.C. (3d) 375 at paras. 18-36, 164 C.R.R. (2d) 64, leave to appeal to
S.C.C. refused, (2007) 166 C.R.R. (2d) 375; R. v. Sinclair, 2008 BCCA 127, 169 C.R.R. (2d) 232 at
paras. 33-40, leave to appeal to S.C.C. granted, 32537 (24 October 2008).

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statement from a suspect. The goal of law enforcement is not to get statements as
such, but to get reliable information. There is reason to believe that the more pressure
the police exert on suspects and the more deceit and trickery they use, the less reliable
the resulting statements will be.20 Moreover, the pragmatic point is secondary. Since
the principle against self-incrimination is part of the structure of a rights-based system
of criminal justice, whatever minimum demands it places on investigative techniques
have to be respected.21 Any system of justice that takes the dignity and worth of the
individual seriously must uphold some version of the principle against self-
incrimination.

Thus, while there may be different ways of specifying the confessions rule, either
at common law or as a constitutional principle, the point is not to make it easier for
the police to obtain statements, but to ensure that the suspect is able to make his or
her own informed decision whether to speak to the police. In light of this normative
goal, I consider the recent history of the confessions rule in Canada in Part II, two
ways in which the confessions rule might be constitutionalized in Part III, and the
current status of the confessions rule under the Charter in Part IV.

II. The Confessions Rule Restated

The common law confessions rule, as it stood in Canada before 2000, can be
briefly stated as follows: if an accused person has given a statement to a person in
authority, the Crown must prove beyond a reasonable doubt that the statement was
made voluntarily before using the statement for any purpose in the accuseds trial.22
Whether the person receiving the statement is a person in authority is assessed on
the basis of the accuseds reasonable perception of that persons role in the criminal
process.23 There are three, or possibly four, ways in which a statement can be
involuntary: (1) it was obtained by means of an inducement (a threat or a promise);24
(2) it was not the product of the accuseds operating mind;25 (3) it was obtained by
oppressive conduct by the police;26 or possibly (4) it was obtained via a police trick

20 See Leo, supra note 16.
21 For an approach to self-incrimination that assesses the principled and pragmatic considerations
very differently, see Steven Penney, Whats Wrong with Self-Incrimination? The Wayward Path of
Self-Incrimination Law in the Post-Charter Era (2004) 48 Crim. L.Q. 249, 280 & 474.

22 Ibrahim v. R., [1914] A.C. 599 (P.C.) at 609-10 [Ibrahim]; Erven v. R. (1978), [1979] 1 S.C.R. 926

at 930-31, 30 N.S.R. (2d) 76.
23 Hodgson, supra note 15.
24 The classic formulation of this branch of the rule is found in Ibrahim (supra note 22). See also

Commissioners of Customs and Excise v. Harz, [1967] 1 A.C. 760 at 820-21.

25 Ward v. R., [1979] 2 S.C.R. 30 at 40, 14 A.R. 412; R. v. Whittle, [1994] 2 S.C.R. 914 at 935, 116

D.L.R. (4th) 416 [Whittle].

26 R. v. Prager, [1972] 1 W.L.R. 260, 1 All E.R. 1114 (C.A.); Hobbins v. R., [1982] 1 S.C.R. 553 at
556-57, 135 D.L.R. (3d) 244; R. v. Hoilett (1999), 136 C.C.C. (3d) 449 at 458, 26 C.R. (5th) 332 (Ont.
C.A.).

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that would shock the conscience of Canadians.27 If involuntary, the statement is
inadmissible for any purpose. However, physical evidence derived from an
involuntary statement is admissible.28 Moreover, even an involuntary statement is
admissible to the extent that it is confirmed by that physical evidence.29
In R. v. Oickle, decided in 2000, the Supreme Court of Canada restated the

confessions rule on a principled basis.30 The accused was charged with several counts
of arson. He made two detailed statements to the police describing his involvement in
the fires in question. Without these statements, the Crowns case would not have risen
much above the level of suspicion. The methods the police used to obtain these
statements are not central to the current discussion, though they are fascinating and
illustrative of the controversial interrogation tactics now routinely employed to obtain
confessions.31 The trial judge found that the statements were voluntary, admitted
them, and convicted the accused. On appeal, the Nova Scotia Court of Appeal
ordered an acquittal. Justice Pugsley and Justice Cromwell, for the court, found that
there were several factors that, taken singly or in combination, made the statement
involuntary. These factors fell under the first (inducement) and third (oppression)
branches of the common law rule.

27 This fourth branch of the rule was introduced in obiter dicta by Lamer J., concurring, in R. v.
Rothman ([1981] 1 S.C.R. 640 at 695-97, 121 D.L.R. (3d) 578). In Oickle, Iacobucci J. held that this
fourth branch was part of the common law confessions rule (supra note 3 at para. 57). There are few,
if any, cases that clearly illustrate this branch of the rule. In R. v. Welsh, a police officer posing as an
Obeahman obtained inculpatory statements from the accused ((2007), 51 C.R. (6th) 33, 168 C.R.R.
(2d) 8 (Ont. Sup. Ct.)). Having found that this tactic did not violate the accuseds religious freedom
under s. 2(a) of the Charter, OConnor J. held that it was therefore not a dirty trick that would …
shock the conscience of the community (ibid. at para. 76). The reasoning seems incomplete. A police
trick could shock the conscience of the community without also violating a Charter right. See also
Steve Coughlan, Annotation (2007) 51 C.R. (6th) 35.

28 R. v. Wray (1970), [1971] S.C.R. 272 at 296, 11 D.L.R. (3d) 673 [Wray cited to S.C.R.].
29 R. v. St. Lawrence, [1949] O.R. 215, 93 C.C.C. 376 (H.C.) [St. Lawrence], approved in Wray (ibid.
at 278). Some of Cory J.s dicta in Hodgson may cast doubt on whether the rule in St. Lawrence is still
part of the common law (supra note 15 at 464-65). However, Cory J. neither discusses nor cites
St. Lawrence or Wray, and the facts of Hodgson raised no issues of derivative evidence. It would
therefore be premature to assume that St. Lawrence has been overruled. See R. v. Sweeney (2000), 50
O.R. (3d) 321, 148 C.C.C. (3d) 247 [Sweeney] (holding that while the rule from Wray and
St. Lawrence must be modified in light of the Supreme Court of Canadas post-Charter jurisprudence,
it is still good law).
30 Supra note 3.
31 For critical discussions of Oickle, including consideration of the facts of the case, see Don Stuart,
Oickle: The Supreme Courts Recipe for Coercive Interrogation (2001) 36 C.R. (5th) 188; Edmund
Thomas, Lowering the Standard: R. v. Oickle and the Confessions Rule in Canada (2005) 10 Can.
Crim. L. Rev. 69; Dale E. Ives, Preventing False Confessions: Is Oickle Up to the Task? (2007) 44
San Diego L. Rev. 477; Hamish Stewart, Justice Frank Iacobucci and the Revolution in the Common
Law of Evidence (2007) 57 U.T.L.J. 479 at 492-96. A more sympathetic reading of the case
emphasizes the Courts effort to provide a principled approach to determining voluntariness. See
David Paciocco & Lee Stuesser, The Law of Evidence in Canada, 4th ed. (Toronto: Irwin Law, 2005)
at 290-91.

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The Supreme Court of Canada allowed the Crowns appeal and restored the
conviction. The Court was cautious in its characterization of the relationship between
the common law rule and the Charter, but was quite bold in reformulating the
confessions rule in accordance with the principled approach to the common law rules
of evidence. Justice Iacobucci, writing for the majority, did not reject the four
branches of the confessions rule as they have developed in Canadian law. He
confirmed that a threat or promise, an atmosphere of oppression, a failure of the
operating mind, or an unacceptable police trick could make a statement involuntary.32
But he did state that the first three branches of the rule should not be considered in
isolation from one another. In accordance with the principled approach, a trial judges
analysis of voluntariness should be contextual and should consider all branches of
the rule together:

[A] court should strive to understand the circumstances surrounding the
confession and ask if it gives rise to a reasonable doubt as to the confessions
voluntariness, taking into account all the aspects of the rule discussed above.
Therefore a relatively minor inducement, such as a tissue to wipe ones nose
and warmer clothes, may amount to an impermissible inducement if the suspect
is deprived of sleep, heat, and clothes for several hours in the middle of the
night during an interrogation … On the other hand, where the suspect is treated
properly, it will take a stronger inducement to render the confession
involuntary.33

Moreover, Justice Iacobucci emphasized the need for appellate deference to the trial
judges ruling on voluntariness: If a trial court properly considers all the relevant
circumstances, then a finding regarding voluntariness is essentially a factual one, and
should only be overturned for some palpable and overriding error.34
Oickle clearly requires trial judges to consider all of the circumstances in making
a ruling on voluntariness. It also makes it easier for the Crown to establish
voluntariness by requiring proof, not of the absence of a threat or promise, but of the
absence of a quid pro quo for the accuseds statement.35 But, apart from that, Oickle
does not change the test for voluntariness. The questions that the judge must ask
remain the same: Was the statement induced by a threat or promise, or by oppressive
circumstances? Did the accused have an operating mind? Did the police use an

32 Oickle, supra note 3 at paras. 48-67.
33 Ibid. at para. 71.
34 Ibid. [emphasis in original]. On the palpable and overriding error standard of review, see Stein v.
The Ship Kathy K (1975), [1976] 2 S.C.R. 802 at 808, 62 D.L.R. (3d) 1; Schwartz v. Canada,
[1996] 1 S.C.R. 254 at 279, 133 D.L.R. (4th) 289; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2
S.C.R. 235 at para. 10, 211 D.L.R. (4th) 577. For a clear discussion of the standard of review
applicable to a trial judges determination of voluntariness, see R. v. Grouse, 2004 NSCA 108, 226
N.S.R. (2d) 321 at paras. 31-45, 189 C.C.C. (3d) 357, leave to appeal to S.C.C. refused, 30601 (27
January 2005).

35 Compare Dale E. Ives & Christopher Sherrin, R. v. SinghA Meaningless Right to Silence with

Dangerous Consequences (2007) 51 C.R. (6th) 250 at 258.

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unacceptable trick to obtain the statement? The adoption of a principled approach to
voluntariness means only that these questions have to be addressed in light of all the
circumstances. As Justice Iacobuccis examples suggest, an inducement that appears
insignificant on its own might, in the context of harsh treatment, render a statement
involuntary; similarly, an inducement that seems important on its own might not
make a statement involuntary if there is no suggestion of oppression.36 Moreover, the
two main purposes of excluding involuntary statements remain unchanged: to keep
unreliable evidence away from the trier of fact and to protect suspects from improper
investigative techniques.37 Oickle does, however, emphasize the first purpose over the
second.
In Spencer, a majority of the Supreme Court of Canada suggested a very different

reading of Oickle. The accused, Spencer, was charged with offences arising out of
eighteen robberies. While in custody, he admitted to a police officer his involvement
in these robberies. At trial, he argued that the statement was involuntary because it
was induced by a threat that the police would charge his girlfriend unless he made a
statement, and a promise that he would be allowed to see her if he made a statement.
After a lengthy voir dire, the trial judge found that the statement was voluntary. He
stated the test for voluntariness as follows: The question is whether the inducement,
standing alone or in combination with other factors, is strong enough to raise a
reasonable doubt about whether the free will of the accused was overborne.38 With
respect to the alleged threat, the trial judge found that the constable had merely
appealed to Mr. Spencers common sense and knowledge of the justice system.39
With respect to the alleged promise, the trial judge found that, in the context, the
inducement was not strong enough to make the statement involuntary. Accordingly,
the statement was admitted and the accused was convicted as charged.

The British Columbia Court of Appeal allowed the accuseds appeal and ordered
a new trial. Justice Donald, for the majority, held that the trial judge had applied the
wrong test for voluntariness. He focused squarely on the trial judges invocation of
the overborne will and held that this language was inappropriate where an
inducement was in issue. The question was not whether the suspects will had broken
down but whether there was an inducement: Whether the suspect is strong or weak,
robust or timid, a clear inducement of leniency gives rise to the same concern of a
false confession.40
The Supreme Court of Canada allowed the Crowns appeal and restored the

conviction. Both the majority and the minority framed the issue as whether the trial

36 Compare R. v. Ngo, 2007 MBQB 89, 215 Man. R. (2d) 191 (an inducement that might have been
considered relatively mild on its own was found to have rendered a statement involuntary because of
the overall context of the interrogation).
37 Oickle, supra note 3 at paras. 33, 70.
38 R. v. Spencer, 2003 BCSC 508 at para. 30, cited in Spencer, supra note 3 at para. 8, Deschamps J.
39 R. v. Spencer, ibid. at para. 17, cited in Spencer, ibid. at para. 7, Deschamps J.
40 Spencer (C.A.), supra note 3 at para. 42. Hall J.A., dissenting, would have upheld the conviction.

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judge had correctly applied Oickle. Justice Deschamps, for the majority, deferred to
the trial judges findings, commenting that [g]iven the highly fact-sensitive nature of
this area of the law and the duration of the interview, the precise content of the
exchanges [between the accused and the constable] is important.41 She did not
specifically restate the test for voluntariness; her reasons may be read as an
endorsement of either the trial judges view that the issue is whether the will of the
detainee has been overborne42 or of the more traditional view that the issue is whether
the statement was induced by a fear of prejudice or a hope of advantage.43 Justice
Deschamps concluded that it is the strength of the inducement, having regard to the
particular individual and his or her circumstances, that is to be considered in the
overall contextual analysis into the voluntariness of the accuseds statement.44 Since
the trial judge had not applied the wrong test, his factual determinations were entitled
to deference on appeal.45

Justice Fish, for the dissent, held that the trial judge had indeed applied the wrong
test; the question of whether the accuseds will was overborne related only to the
operating mind branch of the test.46 As this case involved an inducement, the question
was whether it would not have been made but for an improper inducement.47
Justice Fish then reviewed the record and found that the statement was involuntary
because it was induced by the threat that the accuseds girlfriend would be charged
unless he made a statement, and by the promise that he would be allowed to see her if
he made a statement, which he characterized as an implicit but unmistakable threat
accompanied by an implicit but unmistakable promise.48

41 Spencer, supra note 3 at para. 5.
42 See Oickle, supra note 3 at para. 57, cited in Spencer, ibid. at para. 13 ([Inducements] become
improper only when … whether standing alone or in combination with other factors, [they] are strong
enough to raise a reasonable doubt about whether the will of the subject has been overborne).
Compare Spencer, ibid. at paras. 18-20. The phrase overborne will is used only twice in Oickle, the
second time in a quotation from another case (at para. 98); thus, Oickle on its own is indeed a feeble
authority for the proposition that the question of voluntariness can be reduced to the question of
whether the accuseds will was overborne.

43 See Ibrahim, supra note 22 (for a statement to be admissible, it must not have been obtained
from [the accused] either by fear of prejudice or hope of advantage at 609); Director of Public
Prosecutions v. Ping Lin, [1976] A.C. 574 (H.L.) [Ping Lin] (the question is whether it was as a result
of something said or done by a person in authority that an accused was caused or led to make a
statement at 595). The majority in Spencer cited these passages from Ibrahim and Ping Lin (ibid. at
para. 14). Compare Spencer, ibid. at paras. 19-21. Spencer was framed as an inducement case, so it
was not necessary to consider the other branches of the traditional approach.

44 Spencer, ibid. at para. 15. Compare Oickle, supra note 3 at paras. 2, 49, 50, 57, 104; Paciocco &

Stuesser, supra note 31 at 295-301.
45 Spencer, ibid. at paras. 16-17.
46 Ibid. at para. 41, Fish J., dissenting.
47 Ibid. at para. 31 [emphasis in original].
48 Ibid. at para. 41.

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Spencer is significant because the Court upheld the trial judges finding that the
statement was voluntary, notwithstanding his arguably erroneous statement of the test
for voluntariness. Since the majoritys reasons are not very clear about the proper test,
Spencer can be read either as endorsing the trial judges statement of the test or as
merely deferring to his factual findings. On the former reading, all four traditional
branches of the confessions rule now reduce to one question: when the accused made
the statement in issue, was his or her will overborne? On the latter reading, the
question of whether the accuseds will was overborne may be part of the inquiry,
particularly on the operating mind branch of the rule, but it is not determinative.49

Since the confessions rule is an aspect of the general principle against self-
incrimination, it is clearly preferable to read Oickle and Spencer as emphasizing
deference to the trial judge rather than as changing the test for voluntariness.
Equating involuntariness with overborne will inadequately reflects the norm
against self-incrimination because it permits a finding of voluntariness precisely when
the accuseds decision to speak, or the content of his or her speech, is a considered
response to a threat or promise or to coercive circumstances. In this situation, the
accuseds will is not overborne, but his or her genuine reasons for speaking to a
person in authority have been undermined by inducements or oppression. But before
considering this point further, it is necessary to consider the constitutional status of
the confessions rule in Canada.

III. Two Approaches to Constitutionalizing the Confessions Rule

There are several ways in which the common law confessions rule could be
recognized as a constitutional principle, but the Supreme Court of Canadas decisions
present two main alternatives: the rule of evidence approach and the rights violation
approach. The first alternative is to constitutionalize the confessions rule as a rule of
evidence at trial: the accuseds statement to a person in authority would be
inadmissible unless the Crown proved it voluntary beyond a reasonable doubt, as a
principle of fundamental justice under section 7 of the Charter. Put another way, the
common law exclusionary rule would be restated as an aspect of the accuseds
constitutional right to a fair trial. The second alternative is to characterize the states
conduct in obtaining an involuntary confession as a violation of the accuseds rights
in the investigative process. The statement would then be evidence obtained in a
manner that infringed or denied50 the accuseds Charter rights, so its admissibility
would be determined under subsection 24(2) of the Charter. These two methods of
recognizing the common law confessions rule as a constitutional principle are
concerned with the accuseds rights at different points in the process: under the rule of
evidence approach, the constitutionalized confessions rule is linked to the accuseds

49 On the difficulty of properly interpreting Spencer, see also Ives & Sherrin, supra note 35 at 258-

50 Charter, supra note 2, s. 24(2).

61.

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rights at trial, while under the rights violation approach, the constitutionalized
confessions rule is linked to the accuseds rights in the investigative process.

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A. G.(B.): The Rule of Evidence Approach

The rule of evidence approach is central to the Supreme Court of Canadas
reasoning in R. v. G.(B.), the only case in which the Court has considered a conflict
between a statute and the confessions rule.51 The Court resolved the conflict by an
exercise of statutory interpretation premised on the assumption that the confessions
rule had been constitutionalized as a rule of admissibility under section 7, not on the
assumption that obtaining an involuntary statement violated the accuseds Charter
rights. In other words, the Court effectively adopted the rule of evidence approach.52

The accused was charged with sexual offences. On arrest, he made a statement to
the police. The court referred the accused to psychiatric assessment pursuant to
section 672.11 of the Criminal Code in order to determine his fitness to stand trial.53
During the assessment, a psychiatrist asked him to explain his earlier statement to the
police. In response, the accused made an incriminating statement. Two psychiatrists
found the accused fit to stand trial. Following a voir dire, the trial judge found the
accuseds statement to the police to be involuntary and inadmissible. His
incriminating statement to the psychiatrist was a protected statement under
subsection 672.21(1) of the Criminal Code and, pursuant to subsection 672.21(2),
was inadmissible during the Crowns case in chief. The accused testified in his own
defence at trial and denied that the sexual activity in question had occurred.
Paragraph 672.21(3)(f) provides that, notwithstanding subsection 672.21(2), a
protected statement is admissible for the purpose of … challenging the credibility of
an accused in any proceeding where the testimony of the accused is inconsistent in a
material particular with a protected statement. Since the accuseds testimony was
inconsistent with the protected statement, the Crown cross-examined him on it
pursuant to paragraph 672.21(3)(f). The trial judge found, among other things, that
the accuseds testimony was not credible, and the accused was convicted.
At common law, the protected statement would have been inadmissible for any
purpose because it was tainted by the earlier involuntary statement; however,
according to paragraph 672.21(3)(f) of the Criminal Code, the protected statement
was admissible for the purpose of impeaching his credibility. Thus, on the particular
facts of G.(B.), there was a conflict between the common law rule and the statutory
rule. Since statutes prevail over the common law, it would seem that this conflict
should have been resolved in favour of the statute, and the trial judges ruling should
have been upheld. But Justice Bastarache, for a majority of the Court, held that

51 Supra note 3.
52 Ibid. at paras. 22, 43-44. The rule of evidence approach was foreshadowed, but not developed in

any detail, in Whittle (supra note 25 at 931-32).

53 R.S.C. 1985, c. C-46.

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paragraph 672.21(3)(f) should be read as if Parliament intended it to operate
consistently with the common law confessions rule.54 While this conclusion might
have been reached as a matter of statutory interpretation, Justice Bastarache took the
stronger view that the admission at trial of an involuntary statement would violate
section 7 of the Charter: Since the protected statement in the instant case was
inadmissible because of its degree of connection with the prior inadmissible
confession, Parliament could not make it admissible for any purpose whatsoever
without violating s. 7 of the Charter.55

It was the admission of the protected statement at trial, not the conduct of the
police in obtaining the involuntary statement (or of the psychiatrist in obtaining the
protected statement), that offended section 7;56 moreover, Justice Bastarache made no
declaration of invalidity in respect of paragraph 672.21(3)(f) itself.57 So G.(B.)
supports the proposition that it is a principle of fundamental justice that a statement
by an accused to a person in authority is inadmissible for any purpose at trial unless
the Crown proves beyond a reasonable doubt that the statement was obtained
voluntarily. According to this view, obtaining an involuntary confession is not, in
itself, a violation of an accuseds Charter rights for which a remedy must be sought
under section 24. Rather, the rule of evidence excluding involuntary confessions is a
principle of fundamental justice, and it is the admission of the statement at the trial
that creates a Charter violationa violation that is avoided simply by applying the
common law rule.

Chief Justice McLachlin, in dissent, held that the trial judge properly admitted the
protected statement
the accuseds credibility under paragraph
672.21(3)(f). She offered a number of reasons, each sufficient in itself, to support this
conclusion.58 For present purposes, the most significant holding was that section 7 of
the Charter would not prevent the tainted protected statement from being admitted
into trial. She saw the act of obtaining an involuntary statement as a violation of the
section 7 right against self-incrimination.59 The admissibility of the tainted statement
would therefore be considered under subsection 24(2) of the Charter, and the
protected statement would be admissible for the purpose of impeaching the accuseds

to challenge

54 G.(B.), supra note 3 at paras. 36-45.
55 Ibid. at para. 44.
56 Ibid. at para. 47. Indeed, there was no suggestion that the police or the psychiatrist misconducted
themselves. The statement to the police appears to have been ruled involuntary on the operating
mind branch of the confessions rule (ibid. at para. 6).

57 His approach might be seen as reading down the statute so that it does not offend the Charter,
but if so, he would be reading down as a matter of statutory interpretation, not as a constitutional
remedy.

58 She held that the protected statement was voluntary, and that it was not tainted by the involuntary
statement (G.(B.), supra note 3 at paras. 59-66). She also held that s. 672.21(3)(f) should be read as
permitting, rather than prohibiting, the admission of involuntary statements, and that s. 672.21(3)(f)
would survive any express constitutional challenge (ibid. at para. 68).

59 Ibid. at paras. 79-80.

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credibility.60 Her reasoning on the last point is in stark tension with the Courts
subsection 24(2) jurisprudence, but the point is that the majority of the Court rejected
her adoption of the rights violation approach to the constitutionalization of the
confessions rule.61
Thus, G.(B.) is a powerful authority in support of the rule of evidence approach.

The majority not only relied on this approach, but also specifically rejected the rights
violation approach adopted by the dissenting judges. Notwithstanding the adoption of
the rule of evidence approach in G.(B.), more recent decisions on the confessions rule
suggest that the Court may now favour the rights violation approach.

B. Singh: The Rights Violation Approach
If G.(B.) represents the rule of evidence approach to constitutionalizing the

confessions rule, then Singh represents the rights violation approach. It does so
despite (or perhaps because of) the fact that the argument in Singh was framed as a
constitutional claim about the right to silence, not as a common law claim about
voluntariness. The accused was charged with second degree murder and identity was
in issue. The victim had been struck by a bullet fired during a dispute between three
men and the employees of a pub. The police had a photograph and a videotape of a
man whom eyewitnesses had identified as the shooter, and they believed that this man
was the accused. The police arrested the accused and charged him with the murder. A
police sergeant interviewed the accused twice, for a total of about 117 minutes. He
directed his questioning at obtaining admissions that would establish the accuseds
identity as the shooter. Justice Charron, writing for the majority, summarized the facts
surrounding the accuseds statements as follows:

Before the interviews, Mr. Singh was given proper Charter and official police
warnings and spoke to counsel by phone and in person … [When] the
discussion turned to the incident in question, … he provided some information
regarding his presence at the pub on the night of the shooting, [but] he
repeatedly denied his involvement and asserted his right to silence. He
indicated that he did not want to talk to the police, that he had nothing to say,
that he knew nothing about the shooting, or that he wanted to return to his cell.

60 Ibid. at para. 81. See e.g. Sweeney, supra note 29 at paras. 29-30.
61 According to McLachlin C.J.C.s approach, the police conduct in obtaining the involuntary
statement appears to be a violation of the accuseds s. 7 rights (G.(B.), ibid. at para. 80). Since it would
be undiscoverable, it would also be inadmissible under s. 24(2). McLachlin C.J.C. relied on R. v.
Kuldip ([1990] 3 S.C.R. 618, 61 C.C.C. (3d) 385) for the proposition that the use of an otherwise in
admissible statement to challenge credibility is constitutionally permissible (G.(B.), supra note 3 at
para. 82). But Kuldip was a case about the scope of the s. 13 right, not a case about remedies for the
violation of a constitutional right. In any event, it has since been overruled on this point in Henry
(supra note 8). Moreover, McLachlin C.J.C. does not indicate how to reconcile her reasoning in G.(B.)
with the holding in R. v. Cook to the effect that a statement that is excluded from the Crowns case in
chief under s. 24(2) will be admissible to impeach the accuseds credibility only in the rarest
circumstances ([1998] 2 S.C.R. 597 at 638-39, 164 D.L.R. (4th) 1).

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Before Mr. Singh was shown the photographs in question and made the
impugned admissions, he asserted his right to silence 18 times. Each time, the
interviewing officer would either affirm that Mr. Singh did not have to say
anything, or would explain to Mr. Singh that he had a duty or desire to place the
evidence before him and he continued the interview.62

Ultimately, the accused made statements identifying himself in the photographs.
The trial judge found that the accuseds statements were voluntary and that his section
7 right to silence had not been infringed. In particular, Mr. Singhs admission that he
was in the still photograph came freely and did not result from the police
systematically breaking down his operating mind or undermining his right to
silence.63 The statements were therefore admissible (though only one of them was
actually put before the jury), and the accused was convicted. On appeal, the accused
conceded that the statements were voluntary, but continued to maintain that his right
to silence had been violated. The British Columbia Court of Appeal rejected this
submission and upheld the conviction. The Supreme Court of Canada dismissed the
accuseds further appeal by a five-to-four majority, with Justice Charron writing for
the majority and Justice Fish writing for the dissent. The majority found no legal error
in any of the lower courts decisions and no reviewable error in the trial judges
factual findings on the voir dire. The dissent found that the police conduct violated
the accuseds section 7 right to silence. Although Justice Charron did not articulate a
clear test to establish a breach of the right to silence, she did comment that
the law as it stands does not permit the police to ignore the detainees freedom
to choose whether to speak or not … Under both common law and Charter
rules, police persistence in continuing the interview, despite repeated assertions
by the detainee that he wishes to remain silent, may well raise a strong
argument that any subsequently obtained statement was not the product of a
free will to speak to the authorities.64

Since in this case the police repeatedly asked the accused to make a statement despite
his eighteen assertions of his right to silence, we must infer that the test is not
quantitative but qualitative: the accused must show that the police conduct somehow
deprived him of the freedom to choose whether to speak.65

Since Singh did not contend on appeal that his statement was involuntary, it was,
strictly speaking, unnecessary for the Court to state anything about the confessions

62 Singh, supra note 1 at para. 13. In dissent, Fish J. emphasizes an aspect of the facts that Charron J.
does not discuss: [T]he interrogator urged Mr. Singh, subtly but unmistakeably, to forsake his
counsels advice to remain silent (at para. 60).

63 Ibid. at para. 15, Charron J. (summarizing the trial judges ruling).
64 Ibid. at para. 47 [emphasis in original].
65 For criticisms of the way the majority construed the right to silence, see Lisa Dufraimont,
Annotation (2007) 51 C.R. (6th) 203; Don Stuart, Annotation (2007) 51 C.R. (6th) 201; Ives &
Sherrin, supra note 35. I agree with these criticisms, but I do not pursue them here because in my
view, it is unwise to make the common law confessions rule dependent on the Charter right to silence
or vice versa, regardless of the precise content of the Charter right to silence.

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rule. But Justice Charron used her reasons for judgment in Singh as an occasion to
comment on the relationship between these two rules in cases where the accused
person is detained and knows he or she is speaking to a person in authority:
[I]n the context of a police interrogation of a person in detention, where the
detainee knows he or she is speaking to a person in authority, the two tests are
functionally equivalent. It follows that, where a statement has survived a
thorough inquiry into voluntariness, the accuseds Charter application alleging
that the statement was obtained in violation of the pre-trial right to silence
under s. 7 cannot succeed. Conversely, if circumstances are such that the
accused can show on a balance of probabilities that the statement was obtained
in violation of his or her constitutional right to remain silent, the Crown will be
unable to prove voluntariness beyond a reasonable doubt.66

This holding moves away from the rule of evidence approach implicit in G.(B.) and
towards a rights violation approach. It is, of course, plainly inconsistent with the
admonition in Oickle that neither rule subsumes the other.67 This inconsistency can
perhaps be explained by Justice Charrons resolution of the burden of proof problem
mentioned in Oickle. If the Crown can prove voluntariness beyond a reasonable
doubt, it is irrebuttably presumed that the accused would not be able to prove a
breach of the right to silence on a balance of probabilities. If the accused proves a
breach of the right to silence on a balance of probabilities, it is irrebuttably presumed
that the Crown would not be able to establish voluntariness beyond a reasonable
doubt. But note that Singh does not expressly hold that if the Crown cannot prove
voluntariness, the right to silence is necessarily violated (or, equivalently, that if there
is no violation of the right to silence, the statement must be voluntary). Rather, Justice
Charron holds that if the Crown cannot establish voluntariness beyond a reasonable
doubt, there is no point in inquiring into the right to silence because the statement
will be excluded anyway.68 If the accused is detained and knows he or she is speaking
to a person in authority, the two rules are functionally equivalent.69 The question of
whether obtaining an involuntary statement necessarily breaches the accuseds
Charter right to silence is left open in Singh.
The approach in Singh does have two apparent advantages. First, it simplifies the

trial judges task in a complex voir dire where both voluntariness and the right to
silence are at play. Second, it grants a kind of constitutional status to the common law
confessions rule. But, as I demonstrate in the next part of this paper, these advantages
may be illusory.

66 Singh, supra note 1 at paras. 8, 37.
67 Oickle, supra note 3 at paras. 29-30.
68 Singh, supra note 1 at para. 25.
69 Ibid. at para. 8.

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IV. Voluntariness and Silence: The Confessions Rule after Singh
Any beneficial simplification of a trial judges task after Singh depends on the
proposition that the common law confessions rule and the Charter right to silence are
functionally equivalent.70 Yet this proposition is not true in an important class of
cases, so it may be necessary for a trial judge to undertake the double-barrelled
analysis that the majority disapproved of in Singh (discussed in Part IV.A).71 Any
benefit to the constitutional status of the confessions rule after Singh depends on the
rule being sufficiently robust to adequately reflect the principle against self-
incrimination. But depending on exactly how Singh and Spencer are read, there is a
real danger that the common law confessions rule has been substantially weakened
even as it has been constitutionalized (discussed in Part IV.B). This weakening of the
rule is due in part to the Courts decision to constitutionalize the rule in accordance
with the rights violation approach rather than the rule of evidence approach. Happily,
the cases are also open to a reading that would permit the Court to constitutionalize
the confessions rule as a rule of evidence, enabling it to preserve the robust content of
the common law rule (discussed in Part IV.C).

A. Functional Equivalence
Justice Charrons holding in Singh that the confessions rule and the right to

silence are functionally equivalent (at least in cases where the detained accused
knows he or she is speaking to a person in authority) must mean that the two rules
have the same implications for the admissibility of evidence. If the only evidence in
issue is the accuseds statement, this holding is correct: under the confessions rule, an
involuntary statement is inadmissible for any purpose, while a statement obtained in
violation of the right to silence is, for all intents and purposes, automatically
inadmissible under subsection 24(2) of the Charter. Although evidence is to be
excluded under subsection 24(2) only if the admission of it in the proceedings would
bring the administration of justice into disrepute,72 statements obtained in violation
of the right to silence will normally be excluded.73 Indeed, the Supreme Court of
Canada has never admitted a statement that was obtained in violation of the right to
silence, and has rarely admitted a statement obtained after a violation of any other
Charter right.

By contrast, if the accuseds statement leads the police to other evidencein
particular, to physical evidence that tends to confirm the statementthe common law
confessions rule and the Charter right to silence do not lead to the same decision

70 Ibid.
71 Ibid. at para. 25, citing R. v. Singh, 2006 BCCA 281, 142 C.R.R. (2d) 68, 38 C.R. (6th) 217.
72 Charter, supra note 2, s. 24(2).
73 Exclusion was virtually automatic under the test in R. v. Stillman (supra note 14); statements will
also usually be excluded under the new approach articulated in R. v. Grant (2009 SCC 32, 309 D.L.R.
(4th) 1 at paras. 89-98, 245 C.C.C. (3d) 1).

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about admissibility. To better understand this point, consider the following scenario,
modelled on the facts of Wray: The accused is charged with murder. The victim was
shot with a rifle, but the police have not yet discovered the murder weapon. Under
interrogation, the accused denies shooting the victim, but admits to disposing of a
rifle. He tells the police, My rifle is in the swamp. I threw it in after the shooting
because I was afraid youd think I did it. The police search the swamp, discover the
rifle, and link it to the shooting. Assume that the police would never have found the
rifle without the accuseds statement. Assume that the trial judge is seriously troubled
by the way the police obtained the statement from the accused; perhaps there was an
inducement of some kind, combined with oppressive behaviour, such as keeping the
accused awake into the early hours of the morning when he had clearly indicated that
he wanted to sleep. In accordance with the approach in Oickle, the trial judge finds
that the inducement, in context, made the statement involuntary.
In this scenario, the finding of involuntariness is not functionally equivalent to

a finding that the accuseds right to silence was violated because the admissibility of
both the rifle and the statement would be treated very differently at common law and
under the Charter. At common law, real evidence derived from an involuntary
statement would undoubtedly be admissible. Moreover, the involuntary statement
itself would be admissible to the extent that it was confirmed by the real evidence. So
at common law, the rifle would be admissible, and so would that portion of the
accuseds involuntary statement that is confirmed by the finding of the rifle.
Specifically, his statement my rifle is in the swamp would be admissible because it
is confirmed by the finding of the rifle in the swamp, but his statement I threw it
in … would remain inadmissible because the finding of the rifle does not show how
or why it got there. But if the accuseds Charter rights were violated, both the rifle
and the statement would have to be considered under subsection 24(2). Thus, given
that there is something troubling about the way the statement was obtained, it would
(curiously enough) be in the Crowns interest to characterize the issue as
involuntariness and in the accuseds interest to characterize it as a Charter breach.
For the common law confessions rule and the Charter right to silence to be truly

functionally equivalent, the trial judge in this scenario would have to decide the
question left unanswered in Singh: does a finding of involuntariness necessarily
imply a breach of the right to silence? Although this proposition does not follow
logically from the holdings in Singh,74 it is tempting to say yes for at least two
reasons.75 First, there are hints in the judgment that this is the Courts view. Second,

74 In Singh (supra note 1) the majority held that voluntariness implies no breach of the right to
silence (A, therefore B) and, logically, that a breach of the right to silence implies involuntariness (not-
B, therefore not-A). But it is an elementary logical fallacy to infer from these holdings that obtaining
an involuntary statement must breach the right to silence. (A, therefore B) does not entail (not-A,
therefore not-B).

75 The Provincial Court of Manitoba interpreted Singh this way in R. v. Bergen (2008 MBPC 9, 235

Man. R. (2d) 241 at para. 36.

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accepting this proposition would finally resolve the question of the relationship
between the common law confessions rule and section 7 of the Charter. If Singh
implicitly holds that whenever the statement is involuntary, there must be a violation
of the right to silence, then the obtaining of an involuntary statement would be
construed as a Charter breach, and the rule in St. Lawrence would be abrogated in
favour of an analysis of the admissibility of derivative evidence under subsection
24(2) of the Charter.76
Although Singh expressly leaves the question open, Justice Charrons reasons,
combined with Justice Deschampss reasons in Spencer, strongly suggest that only
one fact can ultimately support a finding of involuntariness or a finding that the right
to silence has been violated: the accuseds will was overborne. This suggestion is
reinforced by the following passages from Justice Charrons reasons:

[V]oluntariness, as it is understood today, requires that the court scrutinize
whether the accused was denied his or her right to silence. The right to silence
is defined in accordance with constitutional principles.77
[T]he confessions rule effectively subsumes the constitutional right to silence in
circumstances where an obvious person in authority is interrogating a person
who is in detention because, in such circumstances, the two tests are
functionally equivalent.78

If a statement could be found to be involuntary without a breach of the right to
silence, it would not be necessary to scrutinize the right to silence in every case.
Similarly, if the confessions rule subsumes the right to silence, then a finding of
involuntariness must amount to a violation of the right to silence. To subsume is to
include … in a larger group, class, or category or to incorporate [or] absorb.79 If
the right to silence is included in, incorporated in, or absorbed by the confessions
rule, then it is hard to see how a finding of involuntariness could not lead to the
conclusion that the right to silence was violated. So on a radical reading of Singh, if
there is no breach of the right to silence, the statement must be voluntary, and if there
is a breach of the right to silence, the statement must be involuntary. Each implies the
other.

76 In extensive obiter dicta in Sweeney, Rosenberg J.A. analyzed the rule in St. Lawrence in light of
developments under ss. 7 and 24(2) of the Charter. He concluded that the rule must be modified at
least to give a judge discretion to exclude the involuntary confession notwithstanding later
confirmation by the finding of the real evidence. However, … the rationale for the rule has been so
undermined that it would only be in highly exceptional circumstances that the trial judge would be
entitled to admit the confession (Sweeney, supra note 29 at para. 47). This cautious approach was
dictated by the fact that since the Supreme Court of Canada has never expressly overruled Wray or
St. Lawrence, they remain binding; of course, the Court itself would not be so constrained in its
treatment of this issue.

77 Singh, supra note 1 at para. 37.
78 Ibid. at para. 39.
79 The Canadian Oxford Dictionary, 2d ed., s.v. subsume.

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It is difficult to believe that the Court intended to make such a fundamental
change to the confessions rule in Singh, a case in which the accused conceded that his
statement was voluntary. Moreover, there is no indication that Justice Charron meant
to dispense with the four branches of involuntariness that have been recognized in
Canadian lawindeed, she explicitly refers to them.80 And there are at least two
additional reasons to resist this reading of Singh: First, the factual issues involved in
determining voluntariness are different from those involved in determining a breach
of the right to silence, and neither should be reduced to the question of whether the
accuseds will is overborne. Second, it appears that all of the Courts recent
confessions cases are instances of appellate deference to factual findings by trial
judges. Despite some of the alarming language in Oickle, Spencer, and Singh, it is
still possible to save the confessions rule from being subsumed by the right to
silence.81

B. The Overborne Will
There are many cases where a breach of the right to silence will cast doubt on the

voluntariness of a statement (especially where
the oppression branch of
involuntariness is in issue), and many cases where scrupulous respect for the right to
silence will support a finding of voluntariness. But these two issues should be kept
separate, as they involve distinct factual findings and different burdens and quanta of
proof. The right to silence is concerned with the conditions under which the accused
decides to speak at all; the voluntariness rule is concerned with specific features of
the interaction between the police and the accused that tend to make the content of
the accuseds statements unreliable.

80 Singh, supra note 1 at para. 35.
81 Cases decided since Singh indicate that lower courts are not certain whether the confessions rule
and the right to silence have been collapsed into a single rightthe right not to have ones will
overborne by police conduct. Many courts treat Singh as a decision that preserves the approach in
Oickle while supporting the proposition that respect for the right to silence is a relevant factor in
assessing voluntariness. See e.g. R. v. Ansari, 2008 BCSC 1492 at paras. 62-64; R. v. Lucier, 2008
BCPC 319, 38 E.T.R. (3d) 228; R. v. Rowntree, 2008 MBPC 20, 237 Man. R. (2d) 1 (in all three cases,
a statement was found involuntary on the basis of oppressive conditions, without reference to the
overborne will). See also R. v. Assing (2008), 61 C.R. (6th) 273 (Ont. Sup. Ct.) (statement found
involuntary on the basis of an inducement, without reference to the overborne will). Other cases do
use the phrase overborne will, possibly as a shorthand expression for the overall inquiry into
voluntariness. See e.g. R. v. Mahmood, 2008 CanLII 56710 at paras. 115-39, [2008] O.J. No. 4376
(Sup. Ct.) (QL) (an inducement overbore the accuseds will and made her statement involuntary); R. c.
Mailhot, 2008 QCCS 3033 (a combination of circumstances, including a failure to provide food or
washroom breaks during a six-hour interrogation and the interrogating officers refusal to accept
eleven assertions of the right to silence, resulted in leffondrement de [la] volont claire [de
laccus] de ne rien dire and made the statement involuntary (at para. 47)); R. v. Borkowsky, 2008
MBCA 2, 225 Man. R. (2d) 127 (the accuseds will was not overborne; the statement was voluntary);
R. v. Crawford, 2008 NBQB 57, 325 N.B.R. (2d) 325 (the accuseds will was not overborne; the
statement was voluntary).

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The right to silence can be violated when the police improperly persuade the
accused to speak, but without any inducement or other factor that would make the
ensuing statement involuntary. To better understand this possibility, consider the
following example: The accused is arrested and charged with an offence. He is
informed of, and exercises, his right to counsel. His counsel advises him to remain
silent. He decides to follow this advice, and tells the police that he is not going to say
anything. But he is young, vulnerable, and very upset, and the police refuse to accept
this assertion of the right to silence; they repeatedly ask him to make a statement,
suggesting rather vaguely that it would be to his moral advantage to do so. The
accused comes to believe that the police officers are really on his side and that his
counsels advice is unsound. He decides that there is no point in remaining silent, and
he makes a statement admitting some involvement in the offence. There is no fear of
prejudice or hope of advantage; there is no oppression, and there is no trickery that
would shock the conscience of Canadians. Thus, the statement is untainted by any
factor that would render it involuntary. Nevertheless, a trial judge might find that the
accuseds right to silence, as explicated in Singh, has been violated.
Alternatively, the accused might choose to speak to the police quite deliberately,
in which case there is no violation of the right to silence. Parts of the ensuing
statement might nevertheless be involuntary because the police offer an improper
inducement for a confession. Suppose the accused is arrested and charged with an
offence. He is informed of, and exercises, his right to counsel. His counsel advises
him to remain silent. After this consultation, the police remind the accused once that
he can talk if he wants to, but they do not in any way denigrate counsels advice. The
accused decides to talk to the arresting officers. He offers an alibi. The police refuse
to accept the proffered alibi, and press the accused to say something about the crime.
In the course of the discussion, the police tell the accused that unless he confesses,
there is no possibility that he will get bail, but if he does confess, the police assure
him, Well make sure you get out. The accused does not confess to the crime, but
abandons his alibi and admits that he was at the scene of the crime. It is artificial to
describe this as a situation in which the right to silence is respected until the moment
the inducement is uttered and is then violated. It seems even more artificial to
describe it as a situation in which the accuseds will is overborne. Rather, he
consciously and deliberately chose to respond to the inducement by abandoning his
alibi. The most plausible way to describe this situation is to acknowledge that the
accuseds right to silence has been respected, but that the statement is involuntary and
inadmissible at trial because it was induced by a threat and by a promise.

These two examples are meant to suggest that the facts relevant to voluntariness
and those relevant to the right to silence are sufficiently distinct to preclude the
holding that one subsumes the other. More fundamentally, collapsing both the
Charter right to silence and the common law confessions rule into the question of
whether the accuseds will is overborne would be a serious conceptual mistake.

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The concept of the overborne will is no more coherent in the law of criminal
procedure82 than it is in the law of contract83 or in the criminal law defence of
duress.84 The language of the overborne will suggests that the conduct in question
resulted from the persons loss of control over his or her decision-making power, or
that the pressure exerted by another rendered the person akin to an automaton. But in
the typical case of wrongful pressure, the conduct of the person whose will is said to
have been overborne is fully voluntary and rational; it is a deliberate, though highly
constrained, effort to avoid an unpleasant consequence. In the particular context of an
improper police interrogation, the police conduct does not deprive the suspect of
control over the power of speech; rather, the accused makes a conscious decision to
speak, with the goal of avoiding the threat, taking advantage of the promise, or
relieving the oppressive police conduct. This choice is comparable to a typical case of
duress in the law of contract or in criminal law, in which the threatened person makes
a conscious and, in the circumstances, rational decision to comply with the threat. It is
not plausible to speak of the will being overborne in these situations. Though the
accused has consciously exercised his or her will, that exercise is tainted by police
behaviour that is liable to render the statement unreliable. It would be ironic indeed if
the very effectiveness of the inducement (persuading the accused to choose to speak)
were to establish the voluntariness of the statement, when the objective of the
common law confessions rule is to render involuntary and inadmissible a statement
that was induced by a threat or promise.85 A finding that the police conduct induced
the statement by one of the means contemplated by the traditional rule should make
the statement involuntary, as this finding is more than sufficient to raise the twin
spectres of improper police conduct and unreliability that underlie the confessions
rule. It should not be necessary to go further and ask whether the police conduct not
only induced the statement but also overwhelmed the accuseds will.

C. Deferring to Trial Judges
Fortunately, Singh and the cases that preceded it are amenable to a reading that

preserves the common law confessions rule and prevents it from being completely
assimilated into the Charter right to silence. On this reading, founded on the facts of
the cases, the Supreme Court of Canada was merely deferring to the factual findings

82 Compare Leo, supra note 16 at 277.
83 The concept of the overborne will in the law of contractual duress has been subjected to repeated
and very persuasive criticisms. See e.g. P.S. Atiyah, Economic Duress and the Overborne Will
(1982) 98 Law. Q. Rev. 197; M.H. Ogilvie, Wrongfulness, Rights, and Economic Duress (1984) 16
Ottawa L. Rev. 1; Hamish Stewart, Economic Duress in Canadian Law: Towards a Principled
Approach (2003) 82 Can. Bar Rev. 359.

84 Contrast Paquette v. R. ((1976), [1977] 2 S.C.R. 189, 70 D.L.R. (3d) 129) with R. v. Hibbert

([1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193).

85 Compare Spencer, supra note 3 at para. 32, Fish J., dissenting; Spencer (C.A.), supra note 3 at

paras. 40-43, Donald J.A.

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of trial judges who had applied the correct legal test for voluntariness.86 I will
consider the cases in reverse chronological order. In Singh, the accused argued at trial
both that his statement was involuntary and that his right to silence had been violated.
The voluntariness challenge was based on a claim of oppression, not a claim of
inducement or a lack of an operating mind. The voluntariness challenge was
abandoned on appeal. On the right to silence, the trial judge found as fact that the
police officers repeated refusal to accept the accuseds assertions of his right to
silence did not deprive the accused of the ability to choose whether to speak. In
assessing the reasonableness of this finding, it is worth noting that the interrogation
was relatively brief and that no oppression was found. A claim of oppression, though
not the same as a claim that one has been deprived of the ability to choose whether to
speak, is more plausibly connected to the idea of the overborne will than a claim of
inducement is. This is so because oppressive physical conditions are more likely than
verbal threats or promises to lead to a loss of voluntary control over ones actions.87
As such, the factual statement in Singh that the accuseds will was not overborne can
be read as no more than an unfortunate shorthand for the finding that there was no
oppression.
Spencer is admittedly less conducive to a reading of this kind in that the accused

did argue that his statement was induced by a fear of prejudice and a hope of
advantage (both relating to his girlfriend). As noted above, however, Justice
Deschamps did not expressly hold that overborne will was the exclusive criterion
for determining whether a statement is involuntary. Thus, it is possible that Justice
Deschamps was using overborne will as a shorthand expression for an accuseds
response to any police conduct that improperly induces a statement, whether that
conduct is a threat or promise, oppression, trickery, or some combination thereof. On
this reading, a finding that the accuseds will was overborne would not establish that
he or she was utterly deprived of the power to choose to speak or act; rather, it would
affirm that the police had improperly altered the accuseds reasons for speaking in the
way he or she did,88 or that the accused lacked an operating mind.

86 G.(B.) is the only recent case in which the Supreme Court of Canada has reversed the trial judges
ruling concerning the admissibility of an accuseds statement at common law (supra note 3). But this
case involved a pure question of law, indeed of statutory interpretation, not a review of the trial judges
findings concerning voluntariness.

87 Cf. R. v. S.W.M., 2005 BCSC 1466 at para. 69 (a post-Oickle case in which the overborne will is

considered in relation to the oppression branch of the common law confessions rule).

88 John Gardner has suggested, in a different context, that the phrase overborne will should be
interpreted in the following manner: Ones will is overborne … when someone else, by issuing a
conditional threat, intentionally creates a reason (or what one reasonably takes to be a reason) for one
to , and one s for that reason, and one could not reasonably have been expected to do otherwise
than to for that reason (John Gardner, Offences and Defences: Selected Essays in the Philosophy of
Criminal Law (Oxford: Oxford University Press, 2007), at 267-68). This way of describing the
overborne will reflects almost exactly the common laws reason for refusing to admit statements

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These fact-based readings of Spencer and Singh are reinforced by the Supreme

Court of Canadas brief decision in Tessier.89 In that case, the accused was charged
with second degree murder in the death of his girlfriend. She had disappeared in 1989
and the accused had been a suspect for some time. In 2000, he was arrested and he
gave a lengthy statement that included an admission that would probably have
established that he was guilty of manslaughter. The trial judge, without expressly
stating that there was either an inducement or oppression, found that the statement
was involuntary. This finding appears to have been based on two concerns: the police
suggested that the charge would be reduced from murder to manslaughter if the
accused would admit to manslaughter, and there was something oppressive about the
circumstances in which the statement was made. The exclusion of the statement
caused the Crowns case to collapse, and the accused was acquitted. The Crown
appealed, arguing on the basis of Oickle (decided after the trial judges ruling) that the
trial judge had applied the wrong test. The majority of the New Brunswick Court of
Appeal agreed, holding that the trial judge did not direct his mind to the question
that must be answered if tolerable persuasion is to be distinguished from vitiating
inducement: what quid pro quo offer did the interrogating officers make to Mr.
Tessier that might have caused his will to be overborne?90 In dissent, Justice
Deschnes held that the trial judge had done precisely what Oickle demanded:
although the trial judge had not expressly found an inducement or an atmosphere of
oppression, he had considered the voluntariness of the statement on the basis of a
consideration of all the circumstances surrounding the taking of the statements.91 In
particular:

[I]t was open to the trial judge in this case to look upon the comments of the
interrogators with respect to what a confession to manslaughter might attract as
a sentence as an improper inducement in the nature of an assurance that state
authorities would treat him with leniency if he admitted some involvement in
the death of [the victim]. In addition, it was open to the trial judge to conclude
that the process of interrogation was oppressive …
Finally … the trial judge must have been influenced to some extent in his
decision by what might be described, to put it lightly, as an improper
inducement relating to the detainees right to silence when the interrogator told
him that to continue his silence was a dangerous option to adopt, bearing in
mind the unfavorable inference a jury would draw upon viewing the taped
interview.92

The Supreme Court of Canada agreed with Justice Deschness holding that the trial
judge had applied the correct test; thus, the Crowns appeal raised no question of law
and the New Brunswick Court of Appeal should have dismissed it.

induced by fear of prejudice, and could readily be generalized to the hope of advantage and
oppression grounds of involuntariness.

89 Supra note 3.
90 Tessier (C.A.), supra note 3 at para. 42.
91 Ibid. at para. 95, cited in Tessier, supra note 3 at para. 2.
92 Tessier (C.A.), ibid. at paras. 106-07.

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Tessier supports the fact-based reading of Spencer and Singh in at least two ways.

First, in Tessier, the majority of the Court of Appeal explicitly stated that the test for
voluntariness was whether the accuseds will was overborne; yet the Supreme Court
of Canada endorsed Justice Deschness view that the Oickle approach should be
understood in terms of whether all the circumstances surrounding the statement
rendered it involuntary. Thus, Tessier supports the assertion that the phrase
overborne will, which figures so prominently in the reasoning in Spencer and
Singh, can be understood as a shorthand (albeit a rather misleading shorthand) for the
question of whether the accused was improperly induced to speak. Second, Tessier
upholds a trial judges decision that might well have been considered vulnerable to
reversal in light of the reasoning in Oickle and Spencer.
Finally, Oickle is recognized as the new leading case on the common law

confessions rule. It basically preserves the traditional structure of the rule and holds
that trial judges should consider all the circumstances in determining voluntariness.
Justice Iacobuccis references to the overborne will are fleeting and peripheral to
his reasoning. Further, Justice Iacobucci was largely concerned with the standard of
review, and he began his reasons by stating that the case could be resolved on that
basis alone.93 Indeed, in all four casesOickle, Tessier, Spencer, and Singhthe
Supreme Court of Canada upheld the trial judges ruling. Despite the alarming
implications of the language in some of these cases, they may be read as indicating,
not a change in the test for voluntariness, but a high degree of deference to a trial
judges consideration of all the factors relevant to voluntariness.

V. The Confessions Rule and the Principle Against Self-Incrimination
In Part IV of this article, I argued that Oickle, Tessier, Spencer, and Singh can be

read in various ways. On the most radical reading, these cases combine the Charter
right to silence and the common law confessions rule as follows: If the accused
knows he or she is dealing with a person in authority, the common law confessions
rule and the Charter right to silence collapse into the single question of whether the
accuseds will was overborne. If so, the statement is inadmissible both because it is
involuntary and because the accuseds right to silence is violated. If not, the statement
is voluntary and there is no violation of the right to silence.
On the most conservative reading, these cases maintain the traditional structure of
the confessions rule. There are still four ways in which a statement can be involuntary
(though three of them need to be considered together in a principled and contextual
way), and none of them necessarily implies a violation of a Charter right. If the
statement is involuntary, it is excluded at common law; but if the statement is
voluntary, there is also no violation of the right to silence and the statement is

93 Oickle, supra note 3 at paras. 22-23.

The

radical

suggests

that

reading

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admissible.94 The reference in these cases to overborne will is just an unfortunate
shorthand used to articulate the question of whether the accused was prompted to
speak by any of the traditional factors that make a statement involuntary.

should be
rule
constitutionalized in accordance with the rights violation approach outlined in Part
IV.B, above. The Charter rights of the accused are not violated until his or her will is
overborne. Once that has occurred, the court deems the statement involuntary and
excludes it at common law. While this exclusion may be correct, if the rights violation
approach is adopted in the form presented in Singh, it will not be long before the
Crown begins to argue that instead of being automatically excluded, the statement
should be considered under subsection 24(2) of the Charter.

The conservative reading suggests that the confessions rule should be
constitutionalized as a rule of evidence applicable at trial. This reading recognizes
that the inquiry into voluntariness is distinct from the inquiry into recognized Charter
rights such as the right to silence or the right to counsel. The question of voluntariness
is whether the accuseds decision to say what he or she did was prompted by his or
her own reasons or by outside factors such as an inducement, the absence of an
operating mind, or oppression. But the conduct of the police in obtaining the
statement need not violate the accuseds Charter rights, and in particular need not
violate the right to silence. The accuseds operating mind can fail without any
improper state conduct whatsoever. An offer of leniency in exchange for a statement
does not, in itself, violate any recognized Charter right. Further, an inducement or an
oppressive circumstance does not imply a violation of the right to silence (even in the
weak form articulated in Singh). Thus, the best way to constitutionalize the
confessions rule is to treat the exclusionary rule itself as a principle of fundamental
justice under section 7 of the Charter, as in G.(B.).

The ultimate choice between these two readings of the Courts recent decisions
on the confessions rule, and between these two ways of constitutionalizing the
confessions rule, depends on which better reflects the principle against self-
incrimination. As discussed above, the principle against self-incrimination prevents
the state from compelling a suspect to participate in an investigation, but permits the
suspect to choose freely to assist the investigation.95 On this understanding of the
principle, the conservative reading is clearly preferable. The principle against self-
incrimination is a very broad normative idea that has, as the Supreme Court of
Canada has recognized, several different aspects.96 Collapsing those aspects into one
factual inquiry, as the radical reading does, threatens to discount some serious

94 That is, even on this most traditional reading of the cases, there is no escaping the express holding

in Singh that if the statement is voluntary, the right to silence is not violated (supra note 1).

95 Or, as understood in Canadian law, it permits the suspect to take the risk that an apparent civilian
to whom he or she chooses to speak may turn out to be an agent of the state, such as an undercover
officer. See text accompanying note 18.

96 See supra notes 8-13 and accompanying text.

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infringements of the principle against self-incrimination because they no longer fit
into the narrowly defined category of police misconduct that violates Charter rights.
By contrast, the conservative reading of the cases preserves distinct aspects of the
principle against self-incrimination. If the conduct of the police is so egregious that
the accuseds will is overborne, then the accuseds statement should certainly be
excluded on constitutional or common law grounds. However, overbearing the
accuseds will is not the only way that the principle against self-incrimination can be
infringed. Consider the following examples.

The Crowns use, at trial, of statements that were prompted by a loss of the
accuseds operating mind need not involve any state conduct that can be characterized
as overbearing the will or infringing the right to silence. Nevertheless, as the common
law confessions rule recognizes, it does infringe the principle against self-
incrimination by using the accuseds inability to control his or her incriminating
utterances. The best way to protect the principle against self-incrimination in this
context is simply to exclude the statement at trial.

Scrupulous respect for the section 7 right to silencea factor which will certainly
weigh in favour of a finding of voluntariness and will, on one reading of Singh,
determine the issue of voluntariness in the Crowns favourcan easily co-exist with
a significant inducement that would make the statement inadmissible on common law
grounds. Again, the best way to preserve these different manifestations of the
principle against self-incrimination is to adopt the conservative reading of the cases
and to treat the common law confessions rule as a constitutionalized rule of evidence.
It may be argued that the root of the problem in Singh is not the Courts effort to

constitutionalize the confessions rule, but the minimal content that the Court gave this
rule in Oickle and Spencer. Put another way, perhaps we should worry less about the
constitutional status of the confession rule and more about whether its content is
sufficiently robust. There is certainly something to be said for this view: linking the
confessions rule to the right to silence would be less troubling if both doctrines
adequately protected the accused from self-incrimination. But the constitutional status
of the rule affects its content. As I have tried to demonstrate, if obtaining an
involuntary statement is treated as a violation of the accuseds rights, analogous or
even equivalent to a breach of the right to silence, it is necessary to characterize
police conduct as a rights violation before a confession can be found to be
involuntary. But the common law confessions rule, both before and after Oickle,
considers a range of factors as relevant to voluntariness, many of which have nothing
to do with rights violations. Treating the confessions rule as an aspect of the
constitutional right to a fair trial is much more compatible with the traditionally
robust content of the rule; it asks not whether the police have violated the accuseds
rights but whether anything that happens in the interaction between the police and the
accused might cast doubt on the accuseds reasons for speaking as he or she did and
therefore on the reliability of his or her statement. By avoiding the intractable concept
of the overborne will, the conservative reading of the cases preserves this aspect of
the common law rule and thus maintains the confessions rule and the section 7 right
to silence as distinct aspects of the principle against self-incrimination. It is therefore

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less likely than the radical reading to lead to the admission of statements that are not
the product of the suspects true desire to speak.

[Vol. 54

Conclusion

In this paper, I have offered two readings of the Supreme Court of Canadas
recent decisions concerning the common law confessions rule. These cases are
plausibly read as linking the confessions rule with a rather weak version of the
Charter right to silence, or more specifically as understanding both the right to
silence and the confessions rule as a right against having ones will overborne by state
agents. This reading would significantly weaken the common law confessions rule
and thereby weaken the principle against self-incrimination. Fortunately, the cases
can equally be read as deferring to trial judges factual assessments of voluntariness
while preserving the common law confessions rule and constitutionalizing it, if at all,
as an exclusionary rule of evidence at trial. This second, more conservative reading is
preferable because it would preserve the right to silence and the rule that a statement
should be voluntary as distinct aspects of the principle against self-incrimination. The
common law confessions rule is a manifestation of the principle that a person should
not be required to incriminate himself or herself. It is related to several constitutional
doctrines, including the section 7 right to silence. The best way to continue to develop
the principle against self-incrimination, however, would be to preserve the traditional
structure and content of the common law confessions rule, and to constitutionalize it
as a rule of evidence rather than to reduce it to an aspect of the Charter right to
silence. The common law confessions rule and the Charter right to silence have
distinct roles to play in protecting an accused persons right against self-
incrimination, and it is a mistake to conflate them.