R. v. Oickle (R.F.), (1998) 164 N.S.R.(2d) 342 (CA)

• Judge: Pugsley, Flinn and Cromwell, JJ.A.
• Court: Court of Appeal of Nova Scotia (Canada)
• Case Date: January 21, 1998
• Jurisdiction: Nova Scotia
• Citations: (1998), 164 N.S.R.(2d) 342 (CA)

R. v. Oickle (R.F.) (1998), 164 N.S.R.(2d) 342 (CA);

    491 A.P.R. 342

MLB headnote and full text

Temp. Cite: [1998] N.S.R.(2d) TBEd. FE.037

Richard Floyd Oickle (appellant) v. Her Majesty The Queen (respondent)

(C.A.C. No. 135608)

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

Nova Scotia Court of Appeal

Pugsley, Flinn and Cromwell, JJ.A.

January 21, 1998.

Summary:

The accused fireman was convicted of seven counts of arson and was sentenced to a total of 40 months' imprisonment. The accused appealed, submitting that the trial judge erred in ruling that two written state­ments to police, audio/video tapes 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. 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.

Criminal Law - Topic 5334

Evidence and witnesses - Confessions and voluntary statements - Voir dire - Pro­ce­dure - Evidence - An accused's confes­sion resulted from aggressive questioning fol­lowing the accused's failure of a polygraph test - At a voir dire to deter­mine the ad­missibility of the accused's confession, the polygraph examination and result were in evidence - The accused submitted that polygraph evidence was inadmissible for any purpose, including on a voir dire - The Nova Scotia Court of Appeal stated that reference to the admin­istration and out­come of the polygraph test was not in­admissible on a voir dire - The trial judge properly instructed herself that the polygraph test and its results were not admissible for the truth of the confession or to assess the accused's credibility - The court stated that it was essential for the trial judge to consider "all of the circum­stances leading up to the taking of the test, the examination itself, the manner in which the failure of the test was conveyed, as well as the subsequent interrogation" - See paragraphs 20 to 50.

Criminal Law - Topic 5335

Evidence and witnesses - Confessions and voluntary statements - What constitutes a "threat" or "inducement" - An accused, suspected of setting multiple fires, took a polygraph test and failed - The accused was not advised that he could leave after the test - Following aggressive questioning beginning immediately after failing the test, the accused confessed - The police did not advise the accused that the polygraph results were inadmissible in court and repeatedly told him that the polygraph was infallible (accused believed his denial of offences futile in the face of the polygraph results) - The accused's trust was cultivated and abused - He was re­peatedly told that he was not a criminal - After he confessed to one fire, police emphasized that the consequences of a confession would be minimal and that he would likely get no greater punishment if he confessed to the others - The police played on the accused's affection for his fiance, by stating that if he confessed, their relationship would likely be saved and she would not be subjected to the same inter­rogation - The police also stated that a confession would ensure that he received the help he needed - The Nova Scotia Court of Appeal held that the statements (and video-taped statements that followed) were inadmissible, because they were not made freely and voluntarily where the cumulative effect of unfair police tactics resulted in the inducement of a confession in an oppressive atmosphere.

Criminal Law - Topic 5355

Evidence and witnesses - Confessions and voluntary statements - Whether statement was made freely and voluntarily - [See Criminal Law - Topic 5335 ].

Evidence - Topic 2725

Special modes of proof - Polygraph - Admissibility - [See Criminal Law - Topic 5334 ].

Cases Noticed:

R. v. Nugent (1988), 84 N.S.R.(2d) 191; 213 A.P.R. 191 (C.A.), dist. [para. 27].

R. v. Béland and Phillips (1987), 79 N.R. 263; 36 C.C.C.(3d) 481 (S.C.C.), refd to. [para. 30].

R. v. Barton (S.) (1993), 64 O.A.C. 17; 81 C.C.C.(3d) 574 (C.A.), refd to. [para. 31].

R. v. Amyot (1990), 30 Q.A.C. 140; 58 C.C.C.(3d) 312 (C.A.), refd to. [para. 30].

R. v. Thorne (1988), 82 N.S.R.(2d) 442; 207 A.P.R. 442 (C.A.), dist. [para. 38].

R. v. Bedgood (1990), 98 N.S.R.(2d) 426; 263 A.P.R. 426 (C.A.), refd to. [para. 38].

R. v. Sweezey (1974), 27 C.R.N.S. 163 (Ont. C.A.), refd to. [para. 53].

R. v. Whittle (D.J.), [1994] 2 S.C.R. 914; 170 N.R. 16; 73 O.A.C. 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. 54].

R. v. Fitton, [1956] S.C.R. 958; 116 C.C.C. 1; 6 D.L.R.(2d) 529, refd to. [para. 55].

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. 58].

R. v. Hobbins, [1982] 1 S.C.R. 553; 41 N.R. 433, refd to. [para. 59].

R. v. Alexis (1994), 35 C.R.(4th) 117 (Ont. Gen. Div.), refd to. [para. 60].

R. v. Romansky (1981), 6 Man.R.(2d) 408 (Co. Ct.), refd to. [para. 61].

R. v. Fowler (1980), 23 Nfld. & P.E.I.R. 255; 61 A.P.R. 255 (Nfld. C.A.), refd to. [para. 61].

R. v. Jones (S.), [1994] 2 S.C.R. 229; 166 N.R. 321; 43 B.C.A.C. 241; 69 W.A.C. 241; 89 C.C.C.(3d) 353, refd to. [para. 63].

R. v. Voss (1989), 33 O.A.C. 190; 50 C.C.C.(3d) 58 (C.A.), refd to. [para. 63].

R. v. Logue, [1969] 2 C.C.C. 346 (Ont. C.A.), refd to. [para. 66].

Boudreau v. R., [1949] S.C.R. 262, refd to. [para. 66].

R. v. Wood (D.A.) (1994), 135 N.S.R.(2d) 334; 386 A.P.R. 334; 94 C.C.C.(3d) 193 (C.A.), refd to. [para. 68].

R. v. Bird (1989), 58 Man.R.(2d) 275; 50 C.C.C.(3d) 89 (C.A.), refd to. [para. 71].

R. v. Ewert (1991), 5 B.C.A.C. 265; 11 W.A.C. 265; 68 C.C.C.(3d) 207 (C.A.), revsd. (1992), 142 N.R. 154; 16 B.C.A.C. 81; 28 W.A.C. 81; 76 C.C.C.(3d) 287 (S.C.C.), refd to. [para. 71].

R. v. Hatton (1978), 39 C.C.C.(2d) 281 (Ont. C.A.), refd to. [para. 71].

R. v. Reyat (I.S.) (1993), 24 B.C.A.C. 161; 40 W.A.C. 161; 80 C.C.C.(3d) 210 (C.A.), 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. 72].

R. v. Rothman (1981), 35 N.R. 485; 59 C.C.C.(2d) 30 (S.C.C.), refd to. [para. 133].

R. v. L.R.I. and E.T., [1993] 4 S.C.R. 504; 159 N.R. 363; 37 B.C.A.C. 48; 60 W.A.C. 48, refd to. [para. 153].

Authors and Works Noticed:

Kaufman, Fred, The Admissibility of Con­fessions (3rd Ed. 1979), pp. 196, 201 [para. 68].

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed.), ss. 15:10850, 15:10860 [para. 69].

Counsel:

Michael V. Coyle, for the appellant;

Kenneth W.F. Fiske, Q.C., for the respon­dent.

This appeal was heard on November 26, 1997, before Pugsley, Flinn and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On January 21, 1998, Pugsley and Cromwell, JJ.A., jointly delivered the fol­lowing judgment for the Court of Appeal.