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"THE CANADIAN CONFESSIONS RULE"
The Canadian confessions rule was revisited most recently by the Supreme Court of Canada in its decision of the case R v Hodgson, issued September 24, 1998. The Ruling is essentially a reaffirmation of the existing law with some elucidation. The Court ruled that a confession made by a man with a knife held to his throat was voluntary and therefore admissible into evidence, as long as the person holding the knife could not be perceived as being part of the prosecution – as being a "person in authority."
In that decision, the Court concedes that "The unfairness of admitting statements coerced by private individuals should be recognized". But concludes that it lacks the authority to expand the confessions rule to correct this, thereby leaving the matter to Parliament. The Court also equates undercover police officers with private citizens, but does not engage with or even acknowledge the unfairness of admitting statements coerced by undercover officers – indeed, the Court, patently contradicting itself, offers the equivalency of undercover officers and private individuals as the reason why coercion by undercover officers in impossible. This flagrant deception is necessary for the Court to avoid making any changes or improvements in the law, as the Court absolutely could not claim to lack the authority to include undercover officers in the definition of "persons in authority". This is precisely because it was this Court that excluded undercover officers from the definition of "person in authority" in 1981, in the case of Rothman v the Queen.
The case of Rothman v the Queen, which resulted in the corrupting and unnecessary change in the law, involved a man who confessed to an undercover officer posing in an inmate in an adjoining cell. Under the old law the officer would have been regarded as a "person in authority", and the Crown would have had to prove that the statement was voluntary. This evidentiary standard would have been effortlessly met, as the officer was in no position to, and did not attempt to, induce a statement. However, the Supreme Court, in a special procedure that did not involve normal appeals, used this case to reach the spurious conclusion that only a person who has visible power over the proceedings against an accused has the power to coerce a confession. The Justices lacked either the foresight or the integrity to acknowledge scenarios involving private citizens holding knives to throats, or police men posing as criminals advising suspects to confess or risk the fate of other would be informants.
That the reasoning in the Hodgson decision is dishonest is indisputable, but the decision is very long and the Court has done its best to obscure this. Numerous half-hearted attempts are made to suggest that only a visible "person in authority" can coerce a statement. Alternatively, the Court suggests that it would be too difficult for the Crown to prove beyond a reasonable doubt the voluntariness of statements made to private citizens, because, as in the case of wire taps, the identity of the recipient might not be known – thus he could not be subpoenaed to prove that he did not coerce the statement. Again, this is a claim that absolutely could not be made about undercover officers, and so the Court, in the very next sentence, and in the most specious language available, suggest that coercion by undercover officers is impossible because they appear to the accused to be private citizens (…who either can or cannot coerce confessions depending on which paragraph R v Hodgson you happen to be reading). Also, the Court, feeling pressure to pay lip service to the various historic rationales for the voluntariness rule, cites several past judgements that offer more just definitions of the rule and then gives misleading summaries that conceal the disparity between the current law and its antecedents. In one instance the Court quotes from the decision in R v Todd (1901), in which it was held that, "A person in authority means, generally speaking, anyone who has authority or control over the accused or over the proceedings or the prosecution against him". In this definition, there is a clear (and reasonable) distinction made between power over the proceedings and other forms of control that are unrelated to the prosecution or the proceedings. The Court's self serving summary of the quote from R v Todd is, "Thus, from its earliest inception in Canadian law, the question as to who should be considered a person in authority depended on the extent to which the accused believed the person could influence or control the proceedings against him or her."
Historically,
the two rationales for the voluntariness rule were to exclude unreliable
confessions from evidence and to prevent prosecutorial agents from compelling
self-incrimination from an accused. Both of these rationales are
fulfilled by the current British confessions rule, which provides that
where it is represented to the Court that a confession was obtained, "by
oppression of the person who made it" or, "in consequence of anything said
or done which was likely, in the circumstances existing at the time, to
render unreliable any confession which might be made by him in consequence
thereof", the Crown must prove beyond a reasonable doubt that the confession
was not obtained in this manner. The Canadian Court cites this law
with seeming approval, or at least inconsistent empathy, but asserts that
reliability is no longer the rationale for the voluntariness rule in Canada.
There is some time devoted to the arguing of this point, and it is then
implicitly offered as part of the explanation why the Court lacks the authority
to change the law to include scrutiny of statements coerced by private
citizens – it would have to change the rationale. The Court cites
the conclusion of the Report of the Federal / Provincial Task Force on
Uniform Rules of Evidence (1982), that the primary rationale for the confessions
rule today is, "the clear common law principle that the Crown must establish
its case without the assistance of the accused," and concludes itself that
the modern rationale in Canada is to ensure that state coercion is held
in check and "to preserve the principle against self incrimination."
However, in practice, this principle in not served by the current Canadian
law. The rule allows the state to coerce
self-incrimination
whenever it pleases; the state need only disperse its police agents undercover,
thereby freeing them to assume a mantle of power, criminal or otherwise,
that far exceeds that of the state.
"If the state were left with the option of simply corroborating forced confessions, there would be little incentive to refrain from reprehensible investigative measures," states the Supreme Court of Canada. This is true, and it reflects the grievous problem of the free rein that Canada's sophistic law gives to undercover operations. The Court's craven ruling, in the case of R v Hodgson, endangers all Canadians. In its clumsy subterfuge, it has escaped the notice of citizens and journalists alike. Perhaps this is because the tactics it permits, such as those used in the Rafay / Burns case, never have and never will be featured in the popular police television dramas that, for much of the public, are the sole source of information on police investigation techniques.
Essentially what
the above court decision means is that . . .
any undercover
police officer in Canada can threaten or intimidate potential wtnesses
and suspects into giving statements(whether those statements are true
or not, out of fear for their lives), so long as the police officers
"cover" has been maintained and the person doesn't know that they're being
threatened by a police officer !
This has been
ruled OK by the Supreme Court of Canada !
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