R. v. Oickle (R.F.), 2000 SCC 38

JudgeL'Heureux-Dubé, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.
CourtSupreme Court (Canada)
Case DateSeptember 29, 2000
JurisdictionCanada (Federal)
Citations2000 SCC 38;(2000), 187 N.S.R.(2d) 201 (SCC);36 CR (5th) 129;[2000] 2 SCR 3;190 DLR (4th) 257;[2000] CarswellNS 257;JE 2000-1846;[2000] SCJ No 38 (QL);47 WCB (2d) 247;259 NR 227;147 CCC (3d) 321;187 NSR (2d) 201;585 APR 201

R. v. Oickle (R.F.) (2000), 187 N.S.R.(2d) 201 (SCC);

 585 A.P.R. 201

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

....................

Temp. Cite: [2000] N.S.R.(2d) TBEd. SE.006

Her Majesty The Queen (appellant) v. Richard Floyd Oickle (respondent) and The Attorney General for Ontario and The Criminal Lawyers' Association (Ontario) (interveners)

(26535; 2000 SCC 38)

Indexed As: R. v. Oickle (R.F.)

Supreme Court of Canada

L'Heureux-Dubé, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ.

September 29, 2000.

Summary:

The accused fireman was convicted of seven counts of arson and was sentenced to a total of 40 months' imprisonment. The accused confessed to police after he failed a polygraph test and was questioned extensive­ly. The accused appealed, submitting that the trial judge erred in ruling that two written statements to police, audio/videotapes of the statement taking process, and a video re­enactment at the fire sites were voluntary and admissible.

The Nova Scotia Court of Appeal, in a decision reported 164 N.S.R. 342; 491 A.P.R. 342, allowed the appeal, set aside the convictions and substituted acquittals. The statements and all that followed were not free and voluntary. The cumulative effect of police tactics used to secure a confession constituted an improper inducement in an oppressive atmosphere. The Crown appealed.

The Supreme Court of Canada, Arbour, J.A., dissenting, allowed the appeal, set aside the judgment of the court of appeal and restored the conviction. The court held that the appeal court's disagreement with the trial judge regarding the weight to be given various pieces of evidence was not sufficient to reverse a finding on voluntariness. Although this ruling was sufficient to techni­cally dispose of the appeal, the court took the opportunity to set out the scope of the confessions rule. The court also discussed the relevance and effect of polygraph tests with respect to confessions.

Civil Rights - Topic 8306.1

Canadian Charter of Rights and Freedoms - General - Common law - [See second and third Criminal Law - Topic 5330 ].

Criminal Law - Topic 5330

Evidence and witnesses - Confessions and voluntary statements - General - The Supreme Court of Canada discussed the development of the confessions rule - The court noted that at common law there developed two elements or strands of the rule - The first one being the approach definitively stated in Ibrahim v. R. that no statement was admissible unless shown to have been voluntary, i.e., obtained without threats or promises - The second approach was concerned with, even in the absence of threats etc., whether there was an oppres­sive atmosphere (i.e., the oppression doc­trine) - The court stated that clearly, the confessions rule embraces more than the narrow Ibrahim formulation; instead, it is concerned with voluntariness, broadly understood - See paragraphs 24 to 27.

Criminal Law - Topic 5330

Evidence and witnesses - Confessions and voluntary statements - General - The Supreme Court of Canada held that the common law rules regarding confessions and voluntariness were not subsumed by the Charter because: (1) the confessions rule had a broader scope than the Charter (e.g., the protections of s. 10 only apply on arrest or detention, but the confessions rule applies whenever a person in authority questions a suspect); (2) the Charter applies a different burden and standard of proof from that under the confessions rule (i.e., under the Charter, the burden is on the accused to show, on a balance of prob­abilities, a violation of constitutional rights whereas under the confessions rule the burden is on the prosecution to show beyond a reasonable doubt that the confes­sion was voluntary); and (3) the remedies are different (i.e., the Charter excludes evidence only if the test under s. 24(2) is met whereas a violation of the confessions rule always warrants exclusion) - See paragraphs 28 to 31.

Criminal Law - Topic 5330

Evidence and witnesses - Confessions and voluntary statements - General - The Supreme Court of Canada noted the dif­ferences between the common law confes­sions rule and the protections given by the Charter and held that the common law rules offered protections beyond that of the Charter - The court stated that "these various differences illustrate that the Char­ter is not an exhaustive catalogue of rights. Instead, it represents a bare minimum below which the law must not fall. A necessary corollary of this statement is that the law, whether by statute or common law, can offer protections beyond those guaranteed by the Charter. The common law confessions rule is one such doctrine, and it would be a mistake to confuse it with the protections given by the Charter. While obviously it may be appropriate, ... to interpret one in light of the other, it would be a mistake to assume one sub­sumes the other entirely." - See paragraph 31.

Criminal Law - Topic 5330

Evidence and witnesses - Confessions and voluntary statements - General - The Supreme Court of Canada stated that it was necessary to restate the confessions rule because there was continuing diversity of approaches and because of the growing understanding of the problem of false confessions - See paragraph 32 - The court further elaborated on the problem of false confessions - See paragraphs 34 to 46.

Criminal Law - Topic 5330

Evidence and witnesses - Confessions and voluntary statements - General - The Supreme Court of Canada stated that the twin goals of confessions rule were pro­tecting the rights of the accused without unduly limiting society's need to investi­gate and solve crimes - See paragraph 33.

Criminal Law - Topic 5330

Evidence and witnesses - Confessions and voluntary statements - General - The Supreme Court of Canada stated that "the common law confessions rule is well-suited to protect against false confessions. While its overriding concern is with voluntari­ness, this concept overlaps with reliability. A confession that is not volun­tary will of­ten (though not always) be unreliable. The application of the rule will by neces­sity be contextual. Hard and fast rules simply can­not account for the variety of circum­stances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over- and under-inclusive. A trial judge should therefore consider all the relevant factors when re­viewing a confes­sion." - See paragraph 47 - These factors include the existence of threats or promi­ses, oppression, other police trickery and whether there was an operating mind - The court discussed these factors in detail - See paragraphs 48 to 71.

Criminal Law - Topic 5330

Evidence and witnesses - Confessions and voluntary statements - General - The Supreme Court of Canada, in summarizing the confessions rule stated that "first of all, because of the criminal justice system's overriding concern not to convict the innocent, a confession will not be admis­sible if it is made under circumstances that raise a reasonable doubt as to voluntari­ness. Both the traditional, narrow Ibrahim rule and the oppression doctrine recognize this danger. If the police inter­rogators subject the suspect to utterly intolerable conditions, or if they offer inducements strong enough to produce an unreliable confession, the trial judge should exclude it. Between these two extremes, oppressive conditions and inducements can operate to­gether to exclude confessions. Trial judges must be alert to the entire circum­stances surrounding a confession in making this decision" - See paragraph 68.

Criminal Law - Topic 5330

Evidence and witnesses - Confessions and voluntary statements - General - The Supreme Court of Canada discussed the relevance of a polygraph test in deter­mining whether a confession is voluntary -See paragraphs 88 to 104.

Criminal Law - Topic 5337

Evidence and witnesses - Confessions and voluntary statements - Admissibility - General - [See first, second, fourth, sixth, seventh and eighth Criminal Law - Topic 5330 and second to sixth Criminal Law - Topic 5339.6 ].

Criminal Law - Topic 5339.6

Evidence and witnesses - Confessions and voluntary statements - Relevance or effect of polygraph test - [See eighth Criminal Law - Topic 5330 ].

Criminal Law - Topic 5339.6

Evidence and witnesses - Confessions and voluntary statements - Relevance or effect of polygraph test - The Supreme Court of Canada agreed that merely failing to tell a suspect that the polygraph is inadmissible will not automatically produce an involun­tary confession - Courts should engage in a two-step process - First the confession should be excluded if the police deception shocks the community - Second, even if not rising to that level, the use of decep­tion is a relevant factor in the overall voluntariness analysis - At this stage, the approach is similar to the one used with fabricated evidence - Standing alone, simply failing to tell the suspect that the polygraph results are inadmissible will not require exclusion - The most it can do is be a factor in the overall voluntariness analysis - See paragraph 91.

Criminal Law - Topic 5339.6

Evidence and witnesses - Confessions and voluntary statements - Relevance or effect of polygraph test - After the accused failed a polygraph test, police extensively ques­tioned him for several hours until he con­fessed - The accused argued that a confes­sion was inadmissible because police failed to inform him clearly that the polygraph test was not admissible to show whether he was lying or telling the truth - The Supreme Court of Canada rejected the accused's argument - The court noted that in this case, the police officer told the accused at the start of the polygraph that his "opinion based on the results of your polygraph test is not admissible in court. However, anything said between you and I may be admissible." - Moreover, the accused demonstrated during the inter­rogation that he understood this - See paragraphs 89 to 93.

Criminal Law - Topic 5339.6

Evidence and witnesses - Confessions and voluntary statements - Relevance or effect of polygraph test - After the accused failed a polygraph test, police extensively ques­tioned him for several hours until he con­fessed - The accused argued that a confes­sion was inadmissible because police had made assertions to the accused that the polygraph was an infallible determiner of truth - The Supreme Court of Canada agreed that the police exaggerated the accuracy of the polygraph - However, here the accused was not emotionally over­whelmed by the polygraph results, nor was there an oppressive atmosphere - Simply confronting the suspect with adverse evi­dence, like a polygraph test, is not grounds for exclusion - See paragraphs 94 to 100.

Criminal Law - Topic 5339.6

Evidence and witnesses - Confessions and voluntary statements - Relevance or effect of polygraph test - The Supreme Court of Canada held that the timing of the confes­sion vis-à-vis a polygraph is not deter­minative of voluntariness, but rather is a piece of evidence for the trial judge to consider in determining voluntariness - See paragraph 98.

Criminal Law - Topic 5339.6

Evidence and witnesses - Confessions and voluntary statements - Relevance or effect of polygraph test - After the accused failed a polygraph test, police extensively ques­tioned him for several hours until he con­fessed - The accused appealed his convic­tion - The Criminal Lawyer's Association, an intervenor, argued that police should have only two options when using poly­graphs (i.e., either to ensure that the sus­pect has consulted with counsel before consenting to the test or to "clearly sepa­rate any post-test interrogation from the test itself") - The Supreme Court of Cana­da held that it was not necessary to limit the police's discretion in this manner - The court stated that "it is true that the police procedures present the defence with the unpalatable choice of either trying to ex­plain away the confession without using the polygraph, or admitting that the ac­cused failed the test. However, this is true any time a suspect confesses after being confronted with inadmissible evi­dence, and it does not necessarily render the confes­sion involuntary." - See para­graph 102.

Criminal Law - Topic 5341

Evidence and witnesses - Confessions and voluntary statements - Whether voluntary and admissible - Review of ruling of trial judge by appeal court - [See first Criminal Law - Topic 5355 ].

Criminal Law - Topic 5341

Evidence and witnesses - Confessions and voluntary statements - Whether voluntary and admissible - Review of ruling of trial judge by appeal court - The Supreme Court of Canada stated that "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 which affected [the trial judge's] assessment of the facts'." - See paragraph 71.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - The accused fireman was convicted of seven counts of arson - The accused confessed after he failed a polygraph test and was questioned extensively - The accused ap­pealed, arguing that the trial judge erred in ruling that two written statements to police, audio/videotapes of the statement taking process, and a video reenactment at the fire sites were voluntary and admissible - The Nova Scotia Court of Appeal al­lowed the appeal, set aside the convic­tions and substituted acquittals, holding that the statements and all that followed were not free and voluntary - The Crown appealed -The Supreme Court of Canada allowed the appeal - The court held that the appeal court's disagreement with the trial judge regarding the weight to be given various pieces of evidence was not reason to re­verse a finding on voluntariness - See paragraphs 22 to 23.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - To narrow their suspect list in an arson case, police asked several people to take a polygraph test - The accused attended a motel at 3:00 p.m. and took the test but failed - Events were audiotaped - He was told that while the polygraph results were inadmissible, anything he said was - He was questioned after the test - At around 7:00 p.m. he confessed to one of the fires -Police took a written statement - He was then arrested and driven to the police station - At approximately 8:15, he was placed in an interview room with videotape facilities - He was questioned until about 11:00 p.m. when he confessed to setting other fires - Police took another written statement - He was placed in a cell at around 2:45 a.m. - At 6:00 a.m. he was awake and agreed to participate in a video­taped re-enactment of the fires - The Supreme Court of Canada agreed with the trial judge that the accused's confession was voluntary and admissible - See para­graphs 72 to 104.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - In an arson case, the accused argued that a con­fession he gave was not voluntary because police improperly offered him leniency by minimizing the seriousness of his offences and suggesting "that the same punishment would likely be given whether he con­fessed to one or a number of fires" - The Supreme Court of Canada stated that inso­far as the police simply downplayed the moral culpability of the offence, their actions were not problematic - Minimizing the moral significance of the offence was a common and usually unobjectionable feature of police investigation - While the police did minimize the moral significance of the crimes, there was never any sug­gestion by police that a confession would minimize the legal consequences of the accused's crimes - See paragraphs 73 to 77.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - In an arson case, the accused argued that a con­fession he gave was not voluntary because police improperly offered him psychiatric help in return for a confession (e.g., the police told the accused that "I think you need help", and "[m]aybe you need pro­fessional help") - The Supreme Court of Canada noted that at no point did the police ever suggest that the accused could only get help if he confessed - The court stated that "the distinction here is between the police suggesting the potential benefits of confession, and making offers that are conditional upon receiving a confession. The former is entirely appropriate -- it is not an inducement because there is no quid pro quo. The latter is improper. However, the police made no such offer in the course of their interrogation of the respondent." - See paragraph 78.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - In an arson case, the accused argued that a con­fession he gave was not voluntary because police commented that "it would be better" if the accused confessed - The police suggested that a confession would make the accused feel better, that his fiancée and members of the community would respect him for admitting his problem and that he could better address his apparent pyro­mania if he confessed - The Supreme Court of Canada held that read in context, none of these statements contained an im­plied threat or promise - Instead, they were merely moral inducements suggesting to the accused that he would feel better if he confessed and began addressing his prob­lems - These comments did not under­mine the confession's voluntariness - See para­graphs 79 and 80.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - In an arson case, the accused argued that a con­fession he gave was not voluntary because police intimated that it might be necessary to question the accused's fiancée to see if she was involved in the fires if he did not confess - The Supreme Court of Canada noted that the fiancée was not threatened with harm - There were no pending charges against her, nor were they threatened - Further there was no causal connection between the police inducements and the subsequent confession - See para­graphs 81 to 84.

Cases Noticed:

R. v. Nugent (1988), 84 N.S.R.(2d) 191; 213 A.P.R. 191 (C.A.), refd to. [paras. 12, 147].

R. v. Ewert, [1992] 3 S.C.R. 161; 142 N.R. 154; 16 B.C.A.C. 81; 28 W.A.C. 81, refd to. [para. 22].

R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 514; 14 A.R. 412, refd to. [para. 22].

R. v. Fitton, [1956] S.C.R. 958, refd to. [paras. 22, 108].

R. v. Murakami, [1951] S.C.R. 801, refd to. [para. 22].

R. v. Hebert, [1990] 2 S.C.R. 151; 110 N.R. 1; [1990] 5 W.W.R. 1; 57 C.C.C.(3d) 1; 77 C.R.(3d) 145; 49 C.R.R. 114; 47 B.C.L.R.(2d) 1, refd to. [para. 24].

Ibrahim v. R., [1914] A.C. 599 (P.C.), refd to. [para. 24].

Prosko v. R. (1922), 63 S.C.R. 226, refd to. [para. 24].

Boudreau v. R., [1949] S.C.R. 262, refd to. [para. 24].

R. v. Wray, [1971] S.C.R. 272, refd to. [para. 24].

R. v. Rothman, [1981] 1 S.C.R. 640; 35 N.R. 485, refd to. [para. 24].

R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, refd to. [para. 26].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 201, refd to. [para. 26].

R. v. Hobbins, [1982] 1 S.C.R. 553; 41 N.R. 433, refd to. [para. 27].

R. v. Liew (K.L.), [1999] 3 S.C.R. 227; 244 N.R. 249; 244 A.R. 1; 209 W.A.C. 1, refd to. [para. 27].

R. v. Broyles, [1991] 3 S.C.R. 595; 131 N.R. 118; 120 A.R. 189; 8 W.A.C. 189; 8 C.R.R.(2d) 274; [1992] 1 W.W.R. 289; 9 C.R.(4th) 1; 84 Alta. L.R.(2d) 1; 68 C.C.C.(3d) 308, refd to. [para. 28].

R. v. Stillman (W.W.D.), [1997] 1 S.C.R. 607; 209 N.R. 81; 185 N.B.R.(2d) 1; 472 A.P.R. 1, refd to. [para. 30].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 30].

R. v. Precourt (1976), 18 O.R.(2d) 714 (C.A.), refd to. [para. 33].

R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 248 N.R. 101; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 36].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162, refd to. [para. 36].

Reilly v. State (1976), 355 A.2d 324 (Conn. Super. Ct.), refd to. [para. 40].

R. v. Kalashnikoff (1981), 57 C.C.C.(2d) 481 (B.C.C.A.), refd to. [para. 49].

R. v. Lazure (1959), 126 C.C.C. 331 (Ont. C.A.), refd to. [para. 49].

R. v. Ewert (1991), 5 B.C.A.C. 265; 11 W.A.C. 265; 68 C.C.C.(3d) 207 (C.A.), refd to. [para. 50].

R. v. Jackson (1977), 34 C.C.C.(2d) 35 (B.C.C.A.), refd to. [para. 51].

Customs and Excise Commissioners v. Harz, [1967] 1 A.C. 760 (H.L.), refd to. [para. 52].

R. v. Smith, [1959] 2 Q.B. 35 (Cts. Mar­tial App. Ct.), refd to. [para. 52].

R. v. Desmeules, [1971] R.L. 505 (Que. Ct. Sess. P.), refd to. [para. 53].

Comeau v. R. (1961), 131 C.C.C. 139 (N.S.S.C.), refd to. [para. 53].

R. v. Hanlon (1958), 28 C.R. 398 (Nfld. C.A.), refd to. [para. 53].

R. v. Puffer (1976), 31 C.C.C.(2d) 81 (Man. C.A.), refd to. [para. 54].

R. v. McFall, [1980] 1 S.C.R. 321; 27 N.R. 420, refd to. [para. 55].

R. v. Hayes (1982), 34 A.R. 472; 65 C.C.C.(2d) 294 (C.A.), refd to. [para. 55].

R. v. Rennie (1981), 74 Cr. App. R. 207 (C.A.), refd to. [para. 57].

R. v. Hoilett (C.) (1999), 121 O.A.C. 391; 136 C.C.C.(3d) 449 (C.A.), refd to. [para. 59].

R. v. Owen (1983), 56 N.S.R.(2d) 541; 117 A.P.R. 541; 4 C.C.C.(3d) 538 (C.A.), refd to. [para. 60].

R. v. Serack, [1974] 2 W.W.R. 377 (B.C.S.C.), refd to. [para. 60].

R. v. Clot (1982), 69 C.C.C.(2d) 349 (Que. Sup. Ct.), refd to. [para. 66].

Blackburn v. Alabama (1960), 361 U.S. 199, refd to. [para. 70].

Minister of National Revenue v. Schwartz, [1996] 1 S.C.R. 254; 193 N.R. 241, refd to. [para. 71].

Schwartz v. Canada - see Minister of National Revenue v. Schwartz.

Stein Estate et al. v. Ship Kathy K et al., [1976] 2 S.C.R. 802; 6 N.R. 359; 62 D.L.R.(3d) 1, refd to. [para. 71].

R. v. Ollerhead (1990), 86 Nfld. & P.E.I.R. 38; 268 A.P.R. 38 (Nfld. T.D.), refd to. [para. 89].

R. v. Fowler (1979), 23 Nfld. & P.E.I.R. 255; 61 A.P.R. 255 (Nfld. C.A.), refd to. [para. 89].

R. v. Alexis (1994), 35 C.R.(4th) 117 (Ont. Gen. Div.), refd to. [para. 90].

R. v. Béland and Phillips, [1987] 2 S.C.R. 398; 79 N.R. 263; 9 Q.A.C. 293; 36 C.C.C.(3d) 481; 60 C.R.(3d) 1, refd to. [paras. 95, 138].

R. v. Amyot (S.) (1990), 30 Q.A.C. 140; 58 C.C.C.(3d) 312 (C.A.), dist. [paras. 96, 140].

R. v. Romansky (1981), 6 Man.R.(2d) 408 (Co. Ct.), refd to. [para. 98].

R. v. Barton (S.) (1993), 64 O.A.C. 17; 81 C.C.C.(3d) 574 (C.A.), refd to. [para. 103].

R. v. Middleton (1974), 59 Cr. App. R. 18 (C.A.), refd to. [para. 133].

R. v. Phillion, [1978] 1 S.C.R. 18; 14 N.R. 371, refd to. [para. 138].

R. v. Marquard (D.), [1993] 4 S.C.R. 223; 159 N.R. 81; 66 O.A.C. 161, refd to. [para. 138].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241, refd to. [para. 138].

R. v. L.E.W., [1996] O.J. No. 753 (Gen. Div.), refd to. [para. 140].

DeClercq v. R., [1968] S.C.R. 902, refd to. [para. 140].

R. v. Murray, [1951] 1 K.B. 391 (C.C.A.), refd to. [para. 140].

R. v. Charrette, [1994] O.J. No. 2509 (Gen. Div.), refd to. [para. 140].

R. v. Whalen, [1999] O.J. No. 3488, refd to. [para. 140].

Bigaouette v. R. (1926), 46 C.C.C. 311 (Que. K.B.), refd to. [para. 141].

R. v. Lambe (1791), 2 Leach 552; 168 E.R. 379, refd to. [para. 141].

R. v. M.C.H., [1998] 2 S.C.R. 449; 230 N.R. 1; 113 O.A.C. 97, refd to. [para. 141].

R. v. Warickshall (1783), 1 Leach 263; 168 E.R. 234, refd to. [para. 141].

R. v. Hardy (1794), 24 State Tr. 199, refd to. [para. 141].

R. v. Baldry (1852), 2 Den. 430; 169 E.R. 568, refd to. [para. 141].

R. v. Guidice, [1964] W.A.R. 128 (Ct. Crim. App.), refd to. [para. 141].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 141].

R. v. Thorne (1988), 82 N.S.R.(2d) 442; 207 A.P.R. 442; 41 C.C.C.(3d) 344 (C.A.), refd to. [para. 142].

R. v. McIntosh (C.) (1999), 128 O.A.C. 69; 141 C.C.C.(3d) 97 (C.A.), refd to. [para. 142].

R. v. Terceira (J.) (1998), 107 O.A.C. 15; 123 C.C.C.(3d) 1 (C.A.), affd. [1999] 3 S.C.R. 866; 250 N.R. 98; 129 O.A.C. 283, refd to. [para. 146].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 10 [para. 30].

Authors and Works Noticed:

Bedau, Hugo Adam, and Radelet, Michael L., Miscarriages of Justice in Potentially Capital Cases (1987), 40 Stan. L. Rev. 21, generally [para. 35].

Freedman, S., Admissions and Confes­sions, in Studies in Canadian Criminal Evidence (1972), pp. 110, 111 [para. 55].

Furedy, John J., and Liss, John, Countering Confessions Induced by the Polygraph: Of Confessionals and Psychological Rubber Hoses (1986), 29 Crim. L.Q. 91, p. 104 [para. 46].

Furedy, John J., The "control" question "test" (CQT) polygrapher's dilemma: logico-ethical considerations for psycho­physiological practitioners and re­searchers (1993), 15 Int. J. Psychophy­siology 263, generally [para. 95].

Gudjonsson, Gisli H., and MacKeith, James A.C., A Proven Case of False Confession: Psychological Aspects of the Coerced-Compliant Type (1990), 30 Med. Sci. & L. 329, generally [paras. 35, 38].

Gudjonsson, Gisli H., and MacKeith, James A.C., Retracted Confessions: Legal, Psychological and Psychiatric Aspects (1988), 28 Med. Sci. & L. 187, generally [para. 35]; p. 191 [para. 39].

Kassin, Saul M., and Wrightsman, Lawrence S., Coerced Confessions, Ju­dicial Instructions, and Mock Juror Ver­dicts (1981), 11 J. Applied Soc. Psychol. 489, generally [para. 34].

Kaufman, Fred, The Admissibility of Con­fessions (3rd Ed. 1979), pp. 186 [para. 56]; 230 [para. 53].

Leo, Richard A., and Ofshe, Richard J., The Consequences of False Confessions: Deprivations of Liberty and Miscarriages of Justice in the Age of Psychological Interrogation (1998), 88 J. Crim. L. & Criminology 429, generally [para. 35]; p. 492 [para. 45].

Lykken, David T., A Tremor in the Blood: Uses and Abuses of the Lie Detector (1998), generally [para. 95].

Marin, René J., Admissibility of State­ments (9th Ed. 1996) (Jan. 2000 Loose­leaf Update - Release 4), p. 1-15 [para. 49].

Ofshe, Richard J., and Leo, Richard A., The Decision to Confess Falsely: Rational Choice and Irrational Action (1997), 74 Denv. U.L. Rev. 979, gen­erally [para. 35]; pp. 1040 [paras. 38, 61]; 1041 [para. 61].

Ofshe, Richard J., and Leo, Richard A., The Social Psychology of Police Inter­rogation: The Theory and Classification of True and False Confessions (1997), 16 Stud. L. Pol. & Soc. 189, generally [para. 35]; pp. 193 to 196 [para. 45]; 202 [para. 61]; 210 [para. 37]; 211 [para. 38]; 214 [para. 39]; 215 [para. 40]; 219 [para. 41]; 231 to 234 [para. 40].

Patrick, Christopher J., and Iacono, William G., Validity of the Control Question Polygraph Test: The Problem of Sampling Bias (1991), 76 J. App. Psych. 229, generally [para. 95].

Salhany, Roger E. and Carter, Robert, J., Studies in Canadian Criminal Evidence (1972), pp. 110, 111 [para. 55].

Sopinka, John, Lederman, Sidney N., and Bryant, Alan W., The Law of Evidence in Canada (2nd Ed. 1999), §§ 8.83-8.84 [para. 140]; § 8.87 [para. 141]; p. 339 [para. 69].

White, Welsh S., False Confessions and the Constitution: Safeguards Against Untrustworthy Confessions (1997), 32 Harv. C.R.-C.L.L. Rev. 105, generally [para. 35]; pp. 120 [para. 42]; 129 [para. 53]; 131 [para. 39]; 153 [para. 46].

Wigmore, John Henry, Evidence in Trials at Common Law (Chadbourn Rev. 1970), vol. 3, §§ 820b-820c, pp. 301 to 306 [para. 141]; § 820b, p. 303 [para. 141]; § 826, p. 351 [para. 70].

Counsel:

William D. Delaney, for the appellant;

Arthur J. Mollon, Q.C., and Marian Mancini, for the respondent;

Gary T. Trotter, for the intervener, the Attorney General for Ontario;

Michael Code and John Norris, for the intervener, the Criminal Lawyers' As­sociation (Ontario).

Solicitors of Record:

Attorney General of Nova Scotia, Halifax, Nova Scotia, for the appellant;

Nova Scotia Legal Aid, Sydney, Nova Scotia, for the respondent;

Ministry of the Attorney General, Toronto, Ontario, for the intervener, the Attorney General for Ontario;

Sack Goldblatt Mitchell, Toronto, Ontario, for the intervener, the Criminal Lawyers' Association (Ontario).

This appeal was heard on November 2, 1999, before L'Heureux-Dubé, McLachlin, Iacobucci, Major, Bastarache, Binnie and Arbour, JJ., of the Supreme Court of Canada.

On September 29, 2000, the decision of the court was delivered in both official languages and the following opinions were filed:

Iacobucci, J. (L'Heureux-Dubé, McLachlin, Major, Bastarache and Binnie, JJ., concurring) - see para­graphs 1 to 105;

Arbour, J., dissenting - see paragraphs 106 to 152.

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1218 practice notes
  • R. v. Gratton (A.L.), (2002) 329 A.R. 208 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 3, 2002
    ...201; 116 D.L.R.(4th) 416; 92 C.C.C.(3d) 11; 32 C.R.(4th) 1; 23 C.R.R.(2d) 6, refd to. [para. 168, footnote 24]. R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321; 190 D.L.R.(4th) 257; 36 C.R.(5th) 1, refd to. [para. 169, footnote R.......
  • R. v. Hynes, 2001 SCC 82
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    • Supreme Court (Canada)
    • December 6, 2001
    ...1 S.C.R. 265; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC By Major J. (dissenting) R. v. Pearson (1957), 117 C.C.C. 249; R. v. Ferrero (1981), 59 C.C.C. (2d) 93; R. v. Ward (1976), 31 C......
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    • Supreme Court (Canada)
    • October 14, 2022
    ...                    Applied: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 ; Boudreau v. The King, [1949] S.C.R. 262 ; R. v. Whittle, [1994] 2 S.C.R. 914 ; R. v. Grant, 2009 SCC 32 , [2009] 2 ......
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    • Court of Queen's Bench of Manitoba (Canada)
    • June 10, 2003
    ...statements - Admissibility - Where accused's rights violated - [See Civil Rights - Topic 3160 ]. Cases Noticed: R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321, refd to. [para. R. v. Hoilett (C.) (1999), 121 O.A.C. 391; 136 C.C.C.......
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1118 cases
  • R. v. Gratton (A.L.), (2002) 329 A.R. 208 (QB)
    • Canada
    • Court of Queen's Bench of Alberta (Canada)
    • December 3, 2002
    ...201; 116 D.L.R.(4th) 416; 92 C.C.C.(3d) 11; 32 C.R.(4th) 1; 23 C.R.R.(2d) 6, refd to. [para. 168, footnote 24]. R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321; 190 D.L.R.(4th) 257; 36 C.R.(5th) 1, refd to. [para. 169, footnote R.......
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    ...1 S.C.R. 265; R. v. Duguay, [1989] 1 S.C.R. 93; R. v. Stillman, [1997] 1 S.C.R. 607; R. v. Belnavis, [1997] 3 S.C.R. 341; R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC By Major J. (dissenting) R. v. Pearson (1957), 117 C.C.C. 249; R. v. Ferrero (1981), 59 C.C.C. (2d) 93; R. v. Ward (1976), 31 C......
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    ...                    Applied: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3 ; Boudreau v. The King, [1949] S.C.R. 262 ; R. v. Whittle, [1994] 2 S.C.R. 914 ; R. v. Grant, 2009 SCC 32 , [2009] 2 ......
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    • Court of Queen's Bench of Manitoba (Canada)
    • June 10, 2003
    ...statements - Admissibility - Where accused's rights violated - [See Civil Rights - Topic 3160 ]. Cases Noticed: R. v. Oickle (R.F.), [2000] 2 S.C.R. 3; 259 N.R. 227; 187 N.S.R.(2d) 201; 585 A.P.R. 201; 147 C.C.C.(3d) 321, refd to. [para. R. v. Hoilett (C.) (1999), 121 O.A.C. 391; 136 C.C.C.......
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5 firm's commentaries
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    ...Law, Sexual Assault, Ineffective Assistance of Counsel, Disclosure, Sentencing, Canadian Charter of Rights and Freedoms, R. v. Oickle, 2000 SCC 38, R. v. Grant, 2009 SCC 32, R. v. Moran (1987), 36 C.C.C. (3d) 225 R. v. S., 2019 ONCA 895 Keywords: Criminal Law, Robbery, Firearm Offences, Utt......
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    ...First-Degree Murder, Evidence, Admissibility, Confessions, Police Trickery, Jury Instructions, Criminal Code, s. 231(2), R. v. Oickle, 2000 SCC 38, R. v. Durham Regional Crime Stoppers Inc., 2017 SCC 45, R. v. W.(D.), [1991] 1 S.C.R. 742, R. v. Robinson, 2017 ONCA 645, R. v. Jackson (2009),......
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    ...195 R. v. O’Doherty, [2002] NICA B51 .............................................................................. 254 R. v. Oickle, [2000] 2 S.C.R. 3, 2000 SCC 38 ................................................................ 94 R. v. Osmar (2007), 217 C.C.C. (3d) 174, 2007 ONCA 50...........
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    ...(4th) 235, 44 C.R. (4th) 1 ............................................................................... 355–56, 443 R. v. Oickle, [2000] 2 S.C.R. 3, 190 D.L.R. (4th) 257, 147 C.C.C. (3d) 321 ......................................................................251, 255, 256 R. v. P.(K.N.......
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    ...but it is hard to come to any other conclusion based on the facts set out therein. 71 Above note 68 at paras 26–35. See also R v Oickle , 2000 SCC 38 at para 95 [ Oickle ]. 72 Moore , above note 68 at paras 47–55. 73 See Alan D Gold, “Abuse of Power by the Defence Bar” in Law Society of Upp......
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