WDW325.MARCH10.docx

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Department
Woodsworth College Courses
Course
WDW101Y1
Professor
Dena Demos
Semester
Winter

Description
INTERROGATIONS - Common law and Charter restrictions on interrogations - Common law –must be “voluntary”; if it isn’t then the Crown automatically has to exclude it, lor of charter rights that protect the accused to not speak to the police, if someone chooses to speak to the police, they do so knowing what their rights are and do so of their own free choice o Not the product of threat of inducement - Charter—must comply s. 10(b) and 7 o Must advise of right of counsel o Must provide opportunity to contact counsel o Must stop questioning for reasonable period o Must respect right against self-incrimination - No automatic exclusion for evidence under s. 10(b) anymore PURPOSE OF INTERROGATIONS - Broadly—exercise in persuasion—influence subject to see the world i a particular way and to make decision according to that view (i.e. make decision to disclose information/confess); get an ACCUSED or SUSPECT to give up information and to speak to police, in order to do that need to create a particular environment, try to convince the subject to speak, overcome defense telling not to STEP 1: set the stage—create sense of powerlessness; by interrogating them in police station, cut off from access of everything you know, and they control everything, calculated of what you are allowed to and when you are able to do so to make you feel powerless, to show police are in complete control (e.g. when they let you eat/washroom, etc.) STEP 2: create sense of hopelessness; they’ll tell them all the evidence they claim to have, fabricate evidence that they have, they’ll communicate clearly to the suspect no matter what the person says or does they will be guilty, that there’s no point denying cause they know you are STEP 3: motivate suspect to comply/speak; steps 1 and 2 sets up someone to be vulnerable to speak, give them some reason to confess, sometimes it might not be a complete confession, can range from plea to someone’s efface/morality (be a man, responsible thing to do), isn’t particular coercive, torture is the ultimate version to convincing someone to speak, when they are tortured they have gone through rudimentarily steps 1 and 2, could be in-between such as a shorter sentence, quicker bail, out of interrogation room quicker, etc. Interrogation end when people confess PURPOSE OF INTERROGATION RULES Balance police interests against suspected interest, trying to get everything suspect all the information that they have, its a good objective, the police SHOULD be trying to do that, investigation should include suspect interrogation, if they confess it would be best, very powerful evidence (why would anyone confess if they weren’t guilty mentality ), can streamline investigation - Effective policing; balance w/ individual right to be left alone and protected, create rules to how statements are created and when they are admissible... “have we struck the right balance?” - Powerful evidence - Right to be left alone - Protects against false confessions - Confession rule puts limits on how police can interrogate people RULE: Crown must prove (beyond a reasonable doubt) that a confession is “voluntary”, if crown can’t prove statement is voluntary given it is automatically excluded, if the crown can prove it and there’s an issue if it is obtained in s.10 of charter, obligation of DEFENSE to prove charter violation...one part of the test is on the crown, the other is on the defense VOLUNTARINESS R.v. Oicle (SCC, 2000) FACTS: arson case (car first), polygraph test; told the results are inadmissible but answers may be admissible; advised of right to counsel and right to silence; advised he failed, and polygraph test never wrong; questioned further; confessed and eventually provided a re-enactment ISSUE: was the statement voluntary ? TEST: to be voluntary, confession must be (ALL TEST HAS TO PASS, only apply to statements made by the ACCUSED who are on trial, giving statements to POLICE OFFICER, and someone they KNOW is a police officer) a) Made in circumstances free of threats or promises; the police will have to somehow convince the suspect that is it in his or her best interests to confess, becomes improper only when the inducements are strong enough to raise a reasonable doubt about whether the will of the subject has been overbourne, need some sort of quid pro quo offer in exchange of the statement that will be improper promise or threat (if you don’t do a we will do y, if you don’t give a statement we will do x...e.g. if you don’t = charge your gf, not give you bail..etc.), the offer need to be too good to resist b) Made in circumstances free from oppression; depriving the suspect of food, clothings, water, sleep, or medical attention; excessively aggressive, intimidating questioning...not a direct threat or promise, but overall circumstances of interrogation process, did police create such a oppressive situation that the accused would choose to confess, don’t need to be a direct (that would be a promise or threat), extensive interrogation may amount to oppression c) Made in circumstances free from undue police trickery; confronting the suspect with inadmissible or even fabricated evidence is not necessarily grounds to exclude, some amount of police trickery is fine unless it tips over to undue trickery (e.g. they can makeup they have evidence, or someone else have given incriminating statements against you, they are allowed to lie, etc.), the fact that they lie to suspect does not make it undue, SCC example of undue trickery = undercover officer pose as defense lawyer, administering truth serum d) Product of the operating mind ; low level voluntariness, are you consciously choosing to make a decision (not making psychotic break, concussion) is it a conscious deliberate choice on your part, FACTORS IN OICKLE - Police minimized the seriousness of the crime –“there isn’t much in a care fire”; “package deal”...SCC not really a problem - Offered psychiatric help during the interrogation—“i think you need help”;”maybe we can get you some professional help”; trying to appear that they were concerned and helpful wasn’t sufficient, there was no quid pro quo connected to it - Suggested “it would be better” if his confession (implied threat or promise/moral inducement); they didn’t take the fatal step over the line to explain HOW it would be better, a vague comment that could show that it would benefit you isn’t sufficient to show inducement , it isn’t enough - Promise not to polygraph fiancée; SCC said it wasn’t a sufficient enough inducement - Abuse of trust—police questioning in gentle re-assuring manner - No atmosphere or oppression - Use of polygraph—admissibility of evidence; fallibility of test , they are completely inadmissible in courts, we do allow the answers to the questions to be admitted, but he actually passed but the police lied about them not being wrong and that he failed...HUGE inducement, but SCC said it isn’t unacceptable/undue trickery Statement was admissible R. v. Hoilett (1999, ONT CA) Facts: sexual assault, arrested him at 11:#0 pm, impaired; police took all his clothes 1:30 am, left naked for 90minutes (no sheet/blanket); interview started at 3 am, and lasted 30 mins; still impaired; Hoilett said he knew he did no t have to speak to the police but thought he might get some warm clothes and tissue to wipe his nose if he spoke to them. Trial judge said conditions were deplorable but did not amount to “oppression” Court of appeal: “ it is impossible to say that a court could be satisfied beyond a reasonable doubt that the appellant made his statement to the police voluntarily in the sense that it was not induced by the oppressive conduct of the police” Even if some people could have resisted the police conduct, in the circumstances of this case, still amounted to oppression, inhumane treatment PLUS Intoxication , no one could be satisfied of the circumstances of (being drunk, not given the basics, had to be naked for so long in the cold) that that wouldn’t create inducement and oppression RULE: statement was involuntary, need to look at the subjective state of mind of the person him or herself, even if another person may not experience these circumstances as oppression enough of making them speak but if the oppressed feels it is, than it is...SUBJECTIVE test - Confession rule apply to if someone is giving a statement to someone in AUTHORITY POLICE TRICKERY R. v. Rothman (1981, SCC) Facts: possession of the hash for purpose of trafficking; advised of rights; refused to give a statement; undercover officer put in cell for the purpose of obtaining information Rothman started the conversation (asked why the officer was in custody); officer asked Rothman why he was in and Rothman provided details about his drug business (amounted to a confession) Issue: was statement voluntary? YES Reasons: - Undercover officer is not a person in authority, but police officer aren’t the only ones in authority, school principles,parents can be persons in authority, tax auditions, etc., state actions are persons in authority but other people can be - Individual “assumes the risk” of speak to a rat - Interrogation are not a tea party - Police have to b
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