Challenging the admissibility of statements is a multi-faceted exercise for defence counsel. Many choose to focus their efforts on the Charter, perhaps because the standards appear more straightforward. However, counsel should not overlook the importance of robustly challenging voluntariness.
In 2018, at all levels of court in Ontario, there were excellent decisions finding that the Crown failed to prove statement voluntariness. In particular, two decisions of the Court of Appeal for Ontario – Othman and Wabason – demonstrate that the common law voluntariness rule is alive and well. This article reviews the top 2018 decisions from the Court of Appeal and the Superior Court in which statements were ruled to be inadmissible.
Court of Appeal for Ontario: Othman and Wabason
The Court of Appeal allowed two appeals in 2018 on the basis that the trial judges erred by finding that the Crown had proved statement voluntariness.
R. v. Wabason
In Wabason, the appellant was convicted of manslaughter following a home invasion in which a man who came to defend the occupant of the home was stabbed and killed. The appellant was arrested, charged with murder and ultimately gave a statement. During the course of the police interview, the interviewing officer repeatedly told the appellant that if he gave a statement, he could show that he was only guilty of breaking and entering, but that if he refused to speak, he would “take the fall” for a murder the officer knew he did not commit.
The application judge held that the statement was voluntary as there were no direct threats or promises made by the interviewing officer, and thus no quid pro quo to induce a statement.
Justice Pardu, writing for the panel, held that the trial judge “confine[d] too narrowly the notion of inducements or threats leading to a statement.” She held that the interviewing officer’s comments demonstrated both an inducement – that the appellant could avoid a charge and/or conviction for first-degree murder if he gave a statement, and a threat – that he would be convicted of a first-degree murder he did not commit, if he refused to speak. Justice Pardu also held that the application judge failed to properly consider the individual characteristics of the appellant, a 19-year-old aboriginal youth who had repeatedly asserted his right to silence and asked to return to his cell. She concluded that the officer’s comments, considered in the context of the appellant’s characteristics and circumstances, raised a reasonable doubt that the statement was voluntarily made. The conviction was set aside, and a new trial was ordered.
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