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Milligan's Criminal Law Advisor | Inducement

Milligan's Criminal Law Advisor | Inducement

Confession held to be voluntary where no nexus between "inducement" and accused's decision to confess

Milligan’s Criminal Law Advisor

By Jeffrey Milligan

One day a man walked into an Ontario Provincial Police station and told the counter assistant that he wanted to confess to burning down his mother’s house.

The counter assistant made arrangements for him to speak to a police officer. At the outset of their discussion, the man told the officer that he was homeless and that he had nowhere to stay but jail. He said that he was not leaving until he had a place to stay. When the officer explained that only people who commit crimes go to jail, he said that he had committed a crime and “got away with it” so he would “just admit it”.

The officer cautioned the man and told him that anything he said could be used against him in evidence and told him that he could leave any time he wished to. He repeatedly told him that arson was a serious offence and told him that it was punishable by up to 14 years’ imprisonment.

The officer also advised him that he had the right to speak with counsel and he recommended that he exercise that right. In fact, he repeatedly suggested that he speak to a lawyer and, although initially reluctant to do so, the man relented and spoke to duty counsel. After doing so, he came back and gave a statement implicating himself in a fire that destroyed his mother’s home.

The OPP charged him with arson.

The voluntariness of the confession was at issue in the trial and the trial judge excluded the confession as being involuntary.

According to the trial judge, “oppressive conditions” coupled with an “inducement” rendered the statement involuntary even though the officer’s conduct was “impeccable” and “blameless”. Although he had an “operating mind”, the respondent, as the trial judge held, was “oppressed” by his own “mind” and “imagination”. Desperate for shelter, he was impelled to confess to secure a place to stay. That the officer told him he could or would go to jail if he admitted to complicity in setting the fire was, for the trial judge, an inducement.

The Crown appealed the acquittal.

The Ontario Court of Appeal set aside the acquittal and ordered a new trial.

In his reasons, Justice Hourigan, who wrote for a unanimous panel, reviewed some of the general principles of the law of inducements. At paras. 26-27 he wrote:

[26] Where the state induces a suspect to confess, regardless of whether the inducement comes in the form of a threat or promise, the confession will be inadmissible when the inducement, whether standing alone or in combination with other factors, is strong enough to raise a reasonable doubt about whether the will of the subject has been overborne . . . .

[27] The most important consideration in determining whether the accused’s statement has been induced by such a threat or promise is whether there was a quid pro quo offer by the interrogators. A quid pro quo offer is an inducement for the suspect to confess that raises the possibility that the suspect is confessing, not because of any internal desire to confess, but merely in order to gain the benefit offered by the interrogator: R. v. Heatley, 2015 BCCA 350, 375 B.C.A.C. 194, at para. 6 . . . .

The trial judge erred in finding that the officer’s advice that he could be imprisoned as a consequence of his confession was an “inducement” for several reasons. First, there has to be a “nexus” between the threat or promise and the confession for the court to find that it vitiates voluntariness. There was no “nexus” in this case. The respondent came to the police station to confess to the arson. Second, merely imparting accurate factual information to an accused is not an inducement. The officer had a duty to provide information to the respondent about his potential jeopardy; a failure to do so might have undermined the voluntariness of the statement on a different basis. Further, the officer was not actively trying to elicit a statement; he repeatedly advised the respondent to speak to counsel and told him he could leave whenever he wished to.

The trial judge also erred in finding that “oppression” vitiated the voluntariness of the respondent’s statements to the police. Under the confessions rule, as Hourigan J.A. explained at para. 36, “the oppressive conditions must be caused or created by the state . . . “ in order to affect the voluntariness of a statement to police. Given that the trial judge found that the officer’s conduct was “blameless” and “unimpeachable” there is no basis at law for a finding that oppression was a factor that rendered the statement to be involuntary.

R. v. Fernandes, 2016 ONCA 772, 2016 CarswellOnt 16289
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