The confessions rule and the Charter.

• Author: Stewart, Hamish
• Position: Canada

The confessions rule--the requirement that the Crown prove the voluntariness of the accused's statements to persons in authority--is a well-established rule of criminal evidence and is closely connected with the constitutional principle against self-incrimination that it structures. The confessions rule is thus a natural candidate for recognition as a principle of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. However, there are two distinct routes by which the confessions rule might be constitutionalized. Under the "rule of evidence" approach, the confessions rule would be recognized as an aspect of the accused's constitutional right to a fair trial. Under the "rights violation" approach, the conduct of the state in obtaining an involuntary statement would be treated as a violation of the accused's constitutional rights.

In R. v. Singh, despite having previously adopted the "rule of evidence" approach, the Supreme Court of Canada applied the "rights violation" approach and linked the confessions rule very closely to the constitutional right to silence. In so doing, the Court conflated the distinct protections offered by the right to silence on the one hand and the confessions rule on the other, particularly when Singh is read in light of other recent cases that appear to weaken the confessions rule. Fortunately, the Court's recent decisions concerning the confessions rule may also be read as instances of appellate deference to trial judges' factual findings on voir dires. Thus, they leave room for the recognition that neither the right to silence nor the confessions rule is reducible to the other, and that each has a distinct role to play: the right to silence protects the accused's decision to speak at all, while the confessions rule concerns the accused's motivations for speaking as he or she did.

La regle des confessions, qui requiert que la Couronne prouve le caractere volontaire des declarations de l'accuse aux autorites, est une regle de preuve bien etablie en droit criminel. Elle lie et structure le principe constitutionnel empechant l'accuse de s'incriminer. La regle des confessions pourrait donc etre reconnue comme principe de justice fondamentale en vertu de l'article 7 de la Charte canadienne des droits et libertes. La regle des confessions pourrait etre constitutionnalisee de deux manieres distinctes. Selon une approche insistant sur les regles de preuve, la regle des confessions serait reconnue comme composante du droit constitutionnel de l'accuse a un proces equitable. Selon une approche insistant sur la violation des droits, la conduite de l'Etat dans l'obtention d'une declaration involontaire serait traitee comme une violation des droits constitutionnels de l'accuse.

Dans R. c. Singh, bien qu'elle ait auparavant adopte l'approche des regles de preuve, la Cour supreme du Canada a applique l'approche de la violation des droits et a fermement rattache la regle des confessions au droit constitutionnel au silence. Ce faisant, la Cour a fusionne les protections distinctes offertes par le droit au silence et par la regle des confessions, particulierement lorsque l'affaire Singh est interpretee a la lumiere d'autres decisions recentes qui semblent affaiblir la regle des confessions. Heureusement, les decisions recentes de la Cour concernant la regle des confessions peuvent aussi etre vues comme des exemples de deference des instances d'appel envers les conclusions de faits des juges de premiere instance relativement a des voir-dires. Ainsi, il est encore possible d'affirmer que le droit au silence et la regle des confessions ne sont pas reductibles l'un a l'autre et ont chacun un role distinct a jouer. Le droit au silence protege la decision de l'accuse de parler ou non, alors que la regle des confessions concerne ses motifs d'avoir parle tel qu'il l'a fait.

Introduction I. The Principle Against Self-Incrimination II. The Confessions Rule Restated III. Two Approaches to Constitutionalizing the Confessions Rule A. G.(B.): The Rule of Evidence Approach B. Singh: The Rights Violation Approach IV. Voluntariness and Silence: The Confessions Rule after Singh A. Functional Equivalence B. The Overborne Will C. Deferring to Trial Judges V. The Confessions Rule and the Principle Against Self- Incrimination Conclusion Introduction

The common law confessions rule--the requirement that the prosecution prove the voluntariness of an accused's statements to persons in authority--has a close relationship with the constitutional principles that govern criminal trials. Thus, the Supreme Court of Canada's recent recognition of the confessions rule as a principle of fundamental justice (1) is unsurprising, particularly since doctrines that were less securely rooted in the common law--such as the right to silence--have already been recognized as principles of fundamental justice under section 7 of the Canadian Charter of Rights and Freedoms. (2) But the constitutionalization of the confessions rule raises questions of both structure and content. The structural question involves the relationship between the common law rules of evidence and the accused's constitutional rights. The Supreme Court of Canada has adopted two different approaches to this structural question. Under what I will call the "rule of evidence" approach, the common law rules governing the admissibility of the accused's statements are understood as an aspect of the accused's procedural right to a fair trial under section 7. Under what I will call the "rights violation" approach, the conduct of the state in obtaining an involuntary statement is treated as a violation of the accused's substantive constitutional rights. The question of content has to do with the strength of the protection offered by the constitutionalized confessions rule and with its relationship to other constitutional rights.

The question of structure and the question of content may seem separate in principle, but in this paper I argue that the Supreme Court of Canada may have weakened the content of the confessions rule in part because it has structured the constitutional version of the rule as a rights violation. Specifically, in Singh, the Court appears to have constitutionalized the confessions rule by linking it tightly to the pretrial right to silence. This approach conflates the distinct protections offered by the right to silence on the one hand, and the confessions rule on the other. While both doctrines are branches of the overarching principle against self-incrimination, neither one is reducible to the other. The pre-trial right to silence protects a detainee's right to choose whether to speak to the police at all; the confessions rule protects the accused from the prosecutor's use of his or her involuntary statements used at trial. While both rules lead to the exclusion of statements at trial, they do so by very different routes: the exclusion of a statement obtained in violation of the right to silence is a constitutional remedy under section 24 of the Charter, while the exclusion of an involuntary statement is simply a rule of evidence intended to protect the trier of fact from hearing potentially unreliable information. Thus, if the confessions rule is to be constitutionalized as a principle of fundamental justice under section 7 of the Charter, it should be treated as an aspect not of the right to silence but of the right to a fair trial. Fortunately, the Court's recent decisions concerning the confessions rule do not foreclose this method of incorporating the confessions rule into section 7 because these decisions can be read not as changing the content of the common law rule but as instances of appellate deference to fact-finding on voir dites. (3) As a constitutionalized rule of evidence, a robust common law confessions rule can still take its proper place--alongside the pre-trial right to silence under section 7--as an aspect of the constitutional principle against self-incrimination.

1. The Principle Against Self-Incrimination

   It has often been said that respect for human dignity has been an important organizing principle of constitutional law since the Charter came into force. (4) Although courts have been unwilling to recognize respect for human dignity as a principle of fundamental justice in itself under section 7, the idea of human dignity provides a normative benchmark for specific Charter rights. (5) The precise meaning and scope of the requirement that the state respect human dignity are neither wholly clear nor uncontested. But, at a minimum, respecting human dignity must mean that the state has an obligation to treat each individual as an end and not as a means to, or a resource to be exploited for, achieving the state's ends or the ends of other individuals.

   The principle against self-incrimination is a very basic norm for a system of criminal justice in a constitutional order that is committed to human dignity. It is a well-recognized "principle of fundamental justice" within the meaning of section 7. (6) The core idea of the principle is that when the state uses its power to prosecute an individual for a criminal offence, the individual ought not to be required to assist the state in the investigation or trial of the offence. And it is striking that the Supreme Court of Canada has identified the principle against self-incrimination as "[p]erhaps the single most important organizing principle in criminal law," (7) and has linked it with many rules of evidence and procedure. Instances of this principle include the express protection against self-incrimination in section 13 of the Charter, (8) the rule against the Crown's splitting its case, (9) the common law confessions rule, (10) the Charter right to silence," the doctrine of derivative-use immunity under section 7, (12) and the line between permissible and impermissible uses of the state's power to compel the production of information. (13) This...