FPT HEADS OF PROSECUTIONS COMMITTEE
REPORT OF THE WORKING GROUP ON THE PREVENTION OF MISCARRIAGES OF JUSTICE

6. FALSE CONFESSIONS


6. FALSE CONFESSIONS

I. INTRODUCTION

Innocent individuals sometimes confess to crimes they have not committed. As noted by Justice Iacobucci, on behalf of five other members of the Supreme Court of Canada, “…it may seem counterintuitive that people would confess to a crime that they did not commit…however, this intuition is not always correct. A large body of literature has developed documenting hundreds of cases where confessions have been proven false by DNA evidence, subsequent confessions by the true perpetrator, and other such independent sources of evidence.” [153]

In the opinion of some of the leading American experts in this field:

For those concerned with the proper administration of justice, the important issue is no longer whether contemporary interrogation methods cause innocent suspects to confess. Nor is it to speculate about the rate of police-induced false confession or the annual number of wrongful convictions they cause. Rather, the important question is:How can such errors be prevented?”[154]

The Innocence Project in New York City reports that of the first 130 post-conviction exonerations based on DNA evidence, 35 (27 per cent) involved false confessions.[155] The problem may or may not be as extensive in Canada as it is in the United States; however, it is clear that the Canadian commissions of inquiry have focused on the issue and made recommendations concerning the taking of statements from suspects and witnesses.

This chapter will review the various recommendations regarding police interviews and, in light of the current protections offered by the law, make recommendations as to what steps should be taken by those charged with the enforcement and prosecution of the law to prevent miscarriages of justice occurring in the future.

II. CANADIAN COMMISSIONS OF INQUIRY

The inquiry recommendations essentially fall into two groups: (a) recording the taking of statements, and (b) establishing investigation standards and training police and prosecutors.

Recording the taking of statements

The three commissions of inquiry made a number of recommendations regarding the recording of police interviews of both suspects and witnesses:

a) The Royal Commission into the Donald Marshall, Jr., Prosecution
Recommendation 74

We recommend that in cases where suspects and/or witnesses are juveniles or mentally unstable, investigating officers make special efforts to ensure they are treated fairly. Supportive persons from the witness/suspect viewpoint should be present during the interview.

Recommendation 75

We recommend that audio-visual recording of police interviews of chief suspects and witnesses in serious crimes such as murder, and of juveniles and other interviewees who may be easily influenced, be encouraged.

b) The Commission on Proceedings Involving Guy Paul Morin
Recommendation 96 - Police videotaping of suspects
  • The Durham Regional Police Service should amend its operational manual to provide that all interviews conducted with suspects within a police station be videotaped or audiotaped, absent truly exigent circumstances. Any practice of interviewing a suspect off-camera before a formal videotaped interview undermines this policy. Similarly, a practice of encouraging suspects to speak off the record or off-camera during an interview undermines this policy. Videotaping or audiotaping ultimately narrows trial issues, shortens trials, protects both the interviewer and interviewee from unfounded allegations and encourages compliance with the law; such a policy also enables the parties and the triers of fact to evaluate the extent to which the interviewing process enhanced or undermined the reliability of the statement.
  • The Durham Regional Police Service should investigate the feasibility of adopting the practice of the Australian Federal Police of carrying tape recorders on duty for use when interviewing in other locations or indeed, for use when executing search warrants or in analogous situations.
  • Where oral statements, which are not videotaped or audiotaped, are allegedly made by a suspect outside of the police station, the alleged statements should then be re-read to the suspect at the police station on videotape and his or her comments recorded. Alternatively, the alleged statement should be contemporaneously recorded in writing and the suspect ultimately permitted to read the statement as recorded and sign it, if it is regarded as accurate.
  • Where the policy is not complied with, the police should reflect in writing why the policy was not complied with.
  • The Ministry of the Solicitor General should work to implement this policy (in the very least) for all major Ontario police forces.
Recommendation 97 - Exercise of trial judge’s discretion

A trial judge may wish to consider on an admissibility voir dire any failure to comply with any policy established pursuant to Recommendation 96 and may wish to instruct a jury (or himself or herself, as the case may be) as to the inference which may be drawn from the failure of the police to comply with such a policy. In doing so, the trial judge (and, where applicable, the jury) should be entitled to consider the explanation, if any, for the failure to comply with the policy.

Recommendation 98 - Police videotaping of designated witnesses

The Durham Regional Police Service should implement a similar policy for interviews conducted of significant witnesses in serious cases where it is reasonably foreseeable that their testimony may be challenged at trial. This policy extends, but is not limited to, unsavoury, highly suggestible or impressionable witnesses whose anticipated evidence may be shaped, advertently or inadvertently, by the interview process. The Ministry of the Solicitor General should assist in implementing this policy (in the very least) for all major Ontario police forces.

c) The Inquiry Regarding Thomas Sophonow
Recommendations (at page 19 of Report)

Investigation Standards and Training of Police and Prosecutors

Without always specifying what they should be, both the Marshall Inquiry and the Morin Inquiry recommended that police investigation standards/policies/protocols be established. The Morin Inquiry and the Sophonow Inquiry also recommended that training be provided for police and/or prosecution staff:

The Commission on Proceedings Involving Guy Paul Morin
Recommendation 100 - Creation of policies for police note taking and note keeping

Policies should be established to better regulate the contents of police notebooks and reports. In the least, such policies should reinforce the need for a complete and accurate record of interviews conducted by police, their observations, and their activities.

Recommendation 101 - Police protocols for interviewing to enhance reliability

The Ministry of the Solicitor General should establish province-wide written protocols for the interviewing of suspects and witnesses by police officers. These protocols should be designed to enhance the reliability of the product of the interview process and to accurately preserve the contents of the interview.

Recommendation 102 - Training respecting interviewing protocols

All Ontario investigators should be fully trained as to the techniques which enhance the reliability of witness statements and as to the techniques which detract from their reliability. This training should draw upon the lessons learned at this Inquiry. Financial and other resources must be provided to ensure that such training takes place.

Recommendation 103 - Prevention of contamination of witnesses through information conveyed

Police officers should be specifically instructed on the dangers of unnecessarily communicating information (known to them) to a witness, where such information may colour that witness’ account of events.

Recommendation 104 - Prevention of contamination of witnesses through commentary on case or accused

Police officers should be specifically instructed on the dangers of communicating their assessment of the strength of the case against a suspect or accused, their opinion of the accused’s character, or analogous comments to a witness, which may colour that witness’ account of events.

Recommendation 105 - Interviewing youthful witnesses

Police officers should be specifically instructed how to interview youthful witnesses. Such instructions should include, in the least, that such witnesses should be interviewed, where possible, in the presence of an adult disinterested in the evidence.

Recommendation 106 - Crown education respecting interviewing practices

The Ministry of the Attorney General should establish educational programming to better train Crown counsel about interviewing techniques on their part which enhance, rather than detract, from reliability. The Ministry may also reflect some of the desirable and undesirable practices in its Crown policy manual.

Recommendation 107 - Conduct of Crown interviews
  • Counsel should generally not discuss evidence with witnesses collectively.
  • A witness’ memory should be exhausted, through questioning and through, for example, the use of the witness’ own statements or notes, before any reference is made (if at all) to conflicting evidence.
  • The witness’ recollection should be recorded by counsel in writing. It is sometimes advisable that the interview be conducted in the presence of an officer or other person, depending on the circumstances.
  • Questioning of the witness should be non-suggestive.
  • Counsel may then choose to alert the witness to conflicting evidence and invite comment.
  • In doing so, counsel should be mindful of the dangers associated with this practice.
  • It is wise to advise the witness that it is his or her own evidence that is desired, that the witness is not simply to adopt the conflicting evidence in preference to the witness’ own honest and independent recollection and that he or she is, of course, free to reject the other evidence. This is no less true if several other witnesses have given conflicting evidence.
  • Under no circumstances should counsel tell the witness that he or she is wrong.
  • Where the witness changes his or her anticipated evidence, the new evidence should be recorded in writing.
  • Where a witness is patently impressionable or highly suggestible, counsel may be well advised not to put conflicting evidence to the witness, in the exercise of discretion.
  • Facts which are obviously uncontested or uncontestable may be approached in another way. This accords with common sense.

III. MACFARLANE PAPER

Bruce MacFarlane Q.C. makes the following two policy recommendations related to custodial interrogations: [156]

First, custodial interrogations of a suspect at a police facility in a serious case such as homicide should be videotaped. Videotaping should not be confined to the statement made by the suspect after interrogation, but the entire interrogation process.

The second recommendation concerns police training. Investigators need to receive better training about the existence, causes and psychology of police-induced false confessions. There needs to be a much better understanding of how psychological strategies can cause both guilty and innocent people to confess. In addition, police need to receive better training about the indicia of reliable and unreliable statements, including narratives that are simply false. Testing the statements against other established case facts will also guard against tunnel vision, and potentially enhance the strength of the case for ultimate presentation to the courts.

IV. CURRENT PROTECTIONS AGAINST FALSE CONFESSIONS

a) Common law confessions rule and Charter protections

Both the common law and the Charter provide protection against false confessions.

Common law

At common law, the confessions rule provides that “no statement made out of court by an accused to a person in authority can be admitted into evidence against him unless the prosecution shows, to the satisfaction of the trial judge, that the statement was made freely and voluntarily.”[157]

Recently, the Supreme Court of Canada restated the confessions rule in R. v. Oickle,[158] explaining that this was required because of, inter alia, “our growing understanding of the problem of false confessions.”[159] In restating the rule, the Court noted that “[t]he confessions rule should recognize which interrogation techniques commonly produce false confessions so as to avoid miscarriages of justice.”[160]

The Court emphasized that the application of the confessions rule is of necessity contextual. When reviewing the making of a confession to determine whether it was voluntarily made, a trial judge should consider all the relevant factors, which include,

  1. Threats or promises (paras. 48-57)
    • “The most important consideration in all cases is to look for a quid pro quo offer by interrogators, regardless of whether it comes in the form of a threat or a promise.”
    • “…obviously imminent threats of torture will render a confession inadmissible.”
    • More common are subtle, veiled threats, such as “it would be better to tell.” This will often render the confession inadmissible. “However, phrases like ‘it would be better if you told the truth’ should not automatically require exclusion. Instead, as in all cases, the trial judge must examine the entire context of the confession, and ask whether there is a reasonable doubt that the resulting confession was involuntary.”
    • As for promises or inducements, “The classic ‘hope of advantage’ is the prospect of leniency from the courts. It is improper for a person in authority to suggest that he or she will take steps to procure a reduced charge or sentence if the suspect confesses… An explicit offer by the police to procure lenient treatment for a confession is clearly a very strong inducement, and will warrant exclusion in all but exceptional circumstances.”
    • “Another type of inducement… is an offer of psychiatric assistance or counselling for the suspect in exchange for a confession. While this is clearly an inducement, it is not as strong as an offer of leniency and regard must be had to the entirety of the circumstances.”
    • Spiritual inducements “…will generally not produce an involuntary confession, for the very simple reason that the inducement offered is not in the control of police officers…as a general rule, confessions which result from spiritual exhortations or appeals to conscience and morality, are admissible in evidence, whether urged by a person in authority or by someone else.”
  2. Oppression (paras. 58-62)
    • Oppressive conditions may produce an involuntary confession. In assessing a confession, the court should consider whether the suspect was: deprived of food, clothing, water, sleep, or medical attention; denied access to counsel; confronted with fabricated evidence; or questioned aggressively for a prolonged period of time.
    • Another possible source of oppressive conditions is the police use of inadmissible or fabricated evidence. Standing alone, this is not a determinative factor, but it is a relevant factor to be considered with other factors.
  3. Operating mind (paras. 63-64)
    • The operating mind doctrine requires that the accused knows what he is saying and that it may be used to his detriment.
    • Like oppression, the operating mind doctrine is not a discrete inquiry divorced from the rest of the confessions rule, but instead is just one application of the general rule that involuntary confessions are inadmissible.
  4. Other police trickery (paras. 65-67)
    • This is a distinct inquiry. While related to voluntariness, its more specific objective is maintaining the integrity of the criminal justice system.
    • The confession should be excluded where police trickery is so appalling as to shock the community.
    • In assessing the level of protection offered by the confessions rule, it should be noted that in the opinion of the Supreme Court, “The common law confessions rule is well-suited to protect against false confessions.”[161]
Canadian Charter of Rights and Freedoms

The Charter offers protection against false confessions as well. Section 7 of the Charter guarantees the right to remain silent and s. 10(b) the right to counsel:

Section 7 -- Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Section 10 -- Everyone has the right on arrest or detention -- (b) to retain and instruct counsel without delay and to be informed of that right…

Section 7 of the Charter gives a detained person the right to choose whether to speak to the authorities or remain silent. In R v Hebert,[162] the Supreme Court described that right as follows:

The essence of the right to remain silent is that the suspect be given a choice; the right is quite simply the freedom to choose – the freedom to speak to authorities on one hand, and the freedom to refuse to make a statement to them on the other. This right of choice comprehends the notion that the suspect has been accorded the right to consult counsel and thus to be informed of the alternatives and their consequences, and that the actions of the authorities have not unfairly frustrated his or her decision on the question of whether to make a statement to the authorities.

Earlier on the Court had noted[163] that,

The right to choose whether or not to speak to the authorities is defined objectively rather than subjectively. The basic requirement that the suspect possess an operating mind has a subjective element. But this established, the focus under the Charter shifts to the conduct of the authorities vis-à-vis the suspect. Was the suspect accorded the right to consult counsel? Was there other police conduct which effectively and unfairly deprived the suspect of the right to choose whether to speak to the authorities or not?

Section 10(b) requires that the detainee be advised of their right to counsel and provided with the opportunity to do so without delay. The purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.[164] One of those rights is the right to remain silent.

In fact, the most important right to be advised of is the right to silence. As noted in Hebert,[165]

The most important function of legal advice upon detention is to ensure that the accused understands his rights, chief among which is the right to silence. The detained suspect, potentially at a disadvantage in relation to the informed and sophisticated powers of the state, is entitled to rectify the disadvantage by speaking to counsel at the outset, so that he is aware of his right not to speak to the police and obtains appropriate advice with respect to the choice he faces.

Thus, the s. 10(b) right to counsel helps to ensure a proper and meaningful exercise of the right to remain silent, which right in turn protects against false confessions.

The s. 10(b) right imposes a number of duties, both informational and implementation, on state authorities. The informational duty is to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of Legal Aid and duty counsel. The implementational duties are two-fold and arise upon the detainee indicating a desire to exercise his or her right to counsel. The first implementational duty is “to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances)” and the second implementational duty is “to refrain from eliciting evidence from the detainee until he or she has had a reasonable opportunity (again, except in cases of urgency or danger).”[166]

Furthermore, if a detainee asserts his or her right to counsel and is duly diligent in exercising it, but then indicates that he or she has changed his or her mind and no longer wants legal advice, state authorities have an additional informational obligation to “tell the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the obligation on the part of the police during this time not to take any statements or require the detainee to participate in any potentially incriminating process until he or she has had that reasonable opportunity.”[167]

Underlying the s. 10(b) right to counsel is concern for the fair treatment of an accused person.[168]

b) Recording of interviews

For some time now, the courts have questioned why police do not tape interviews of suspects.[169] Recently, the Supreme Court noted four reasons offered by an author for why videotaping is important:

First, it provides a means by which courts can monitor interrogation practices and thereby enforce the other safeguards. Second, it deters the police from employing interrogation methods likely to lead to untrustworthy confessions. Third, it enables courts to make more informed judgments about whether interrogation practices were likely to lead to an untrustworthy confession. Finally, mandating this safeguard accords with sound public policy because the safeguard will have the additional salutary effects besides reducing untrustworthy confessions, including more net benefits for law enforcement.[170]

The Court went on to note that, “This is not to suggest that non-recorded interrogations are inherently suspect; it is simply to make the obvious point that when a recording is made, it can greatly assist the trier of fact in assessing the confession.”[171]

Thus, while the Supreme Court did not find it necessary to impose an absolute rule requiring the recording of statements, it is clear that the Court encouraged the practice.

The lower courts are offering more than words of encouragement. A number of courts have cited the lack of a recording of the interrogation as a significant factor in ruling statements of accused inadmissible on the basis that voluntariness has not been established.[172] As noted by the Ontario Court of Appeal in Ahmed (at para. 14),

Although the most recent case law from the Supreme Court of Canada in R. v. Oickle (2000), 147 C.C.C. (3d) 321 and from this court in Moore-McFarlane has stated that it is not necessarily fatal if the police do not record a confession, recording is not only the better practice, but in most circumstances, the failure to record will render the confession suspect.

In its earlier decision in R. v Moore-McFarlane,[173]the Court of Appeal came close to formulating a rule, stating that,

…where the suspect is in custody, recording facilities are readily available, and the police deliberately set out to interrogate the suspect without any thought to the making of a reliable record, the context inevitably makes the non-recorded interrogation suspect.[174]

It is perhaps only a matter of time before courts will routinely rule statements of accused, obtained while the accused is in custody, inadmissible in the absence of a recording or adequate explanation for the absence, at least in serious crimes.

Outside Canada, some jurisdictions have already been developing an electronic recording requirement. In the United States, courts in various states have come to require the electronic recording of custodial interrogations conducted at places of detention of individuals suspected of any major crime. As for legislation, in July 2003, Illinois became the first state to legislate an electronic recording requirement for investigations into homicide offences. The legislation[175]will require, in two years, all custodial interrogations of an accused conducted at a police station or other place of detention to be electronically recorded. “Custodial interrogation” is defined as “an interrogation during which a reasonable person in the subject’s position would consider himself or herself to be in custody and during which a question is asked that is reasonably likely to elicit an incriminating response.” A statement of an accused made as a result of a custodial interrogation at a place of detention will be presumed inadmissible as evidence in a prosecution involving a homicide unless an electronic recording was made of the interrogation. The legislation then goes on to provide for various situations where the statement would not be inadmissible despite the lack of electronic recording; for instance, where “electronic recording was not feasible,” the police were unaware that a death had occurred, or the suspect requests that there be no electronic recording, etc.

In the United Kingdom, legislation[176] has been enacted authorizing the Secretary of State “to issue a code of practice in connection with tape-recording of interviews of persons suspected of the commission of criminal offences which are held by police officers at police stations; and to make an order requiring the tape-recording of interviews of persons suspected of the commission of criminal offences, or of such descriptions of criminal offences as may be specified in the order, which are so held, in accordance with the code…”

What then are the actual current practices of police services in Canada? A sampling conducted for the Working Group by the Canadian Association of Chiefs of Police shows that while practices may vary somewhat from jurisdiction to jurisdiction, the norm is to videotape suspect interviews for major crimes. Although the RCMP is in the process of drafting a national policy for videotaping suspects, it is currently standard practice in serious cases such as homicides for suspect interviews to be videotaped.

In British Columbia most, if not all, RCMP detachments videotape suspect interviews in serious cases. The same holds true for municipal police services in British Columbia.[177]In Alberta, it is the practice of the Edmonton Police Service, Calgary Police Service, and the RCMP to videotape interviews of suspects in major crime investigations. Investigators and front-line police officers are also being informally encouraged to videotape suspect interviews when investigating the more serious crimes, such as street robberies and break and enters into dwellings.[178] In Saskatchewan, the Regina Police Service has no formal policy of videotaping statements, however it is routine practice to do so in cases of major crimes. The Saskatoon Police Service videotapes suspect interviews for all serious offences such as murder and sexual assault, while the Estevan Police Service videotapes statements taken from suspects for all offences against the person and the Moose Jaw Police Service videotapes suspect interviews for all serious crimes, such as murder, serious assaults, sexual offences, and property crimes involving high dollar amounts or numerous incidents.

In Manitoba, the Winnipeg Police Service has a written policy providing that “[s]uspects in the following offences shall be given the opportunity to make their statements either inculpatory or exculpatory on videotape…” The listed offences are the serious major offences, such as murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, robbery (financial institution, serial, or when serious bodily injury), break and enter (major and serial and/or when occupant is injured), arson, kidnapping and extortion. Only the actual formal statement is videotaped. For the RCMP in Manitoba almost all suspect statements in major cases are now videotaped.

In Ontario, most police services videotape statements taken from those suspected of committing serious crimes, at least. In fact, the Toronto Police Service videotapes virtually every statement provided at police facilities by persons accused of committing criminal offences and usually audiotapes statements provided en route. The written policy of the Peel Regional Police Service is “to interview on videotape, all suspects of criminal offences or persons arrested for criminal offences, who have been returned to a police facility.” The written policy of the Ontario Provincial Police urges that “…whenever possible, statements made by accused persons shall be audio or video recorded in such location as to preclude interruption.” The policy of the Halton Regional Police Service is to have interviews of persons suspected of criminal offences videotaped. The Niagara Regional Police has a policy requiring the videotaping of all interviews of accused persons or those suspected of committing crimes. If, for some reason, videotaping facilities are not available, officers are required to record the interview on audiotape. The Greater Sudbury Police Service requires investigating officers to “audio-video tape” the interview where a statement is being taken from a person suspected or accused of committing a criminal offence unless the person objects, the audio-video equipment is “unavailable through use or malfunction,” “it is not practical to do so (i.e. distance, weather conditions),” or “in the opinion of the officer it would be detrimental to the investigation to delay the recording of utterances and statements, and is of the opinion that the statements should be recorded in the traditional manner (i.e. a suspect who immediately begins to confess).”

In Quebec, the Service de police de la ville de Montréal videotapes suspect interviews for serious crimes such as murder, manslaughter, armed robbery, kidnapping, forcible confinement, major cases of aggravated assault, criminal negligence causing death or serious injury, large-scale drug importation, and any other crime judged serious enough. It also videotapes every polygraph examination. The Service de police de Gatineau videotapes the taking of statements from those suspected of major crimes such as murder, sexual assault, arson, extortion, kidnapping, etc.

For the Atlantic provinces, the information is less precise; however, it would appear that most, but not all, police services videotape the taking of statements from suspects in major crime investigations.[179]

V. RECOMMENDATIONS

(a) Recording the taking of statements

While practices regarding the use of recording devices vary from jurisdiction to jurisdiction, there can be no doubt that there has been an increasing use of recording devices when police interviews are conducted. The more serious the offence, the more likely that the taking of both warned and witness statements will be recorded electronically. Certainly where the offence being investigated is a homicide, the Canadian norm is that the interviews are recorded, at least when conducted at police stations.

Arguably, the ideal would be to have every police interview electronically recorded, regardless of the seriousness of the offence being investigated, type of witness or location of the interview. In fact, the recommendation of the Sophonow Inquiry, on its face, although made in the context of an inquiry into a wrongful conviction for murder, strives for that ideal. However, there are certain realities that must be considered.

Underlying the recommendations made by the courts, commissions and authors is the premise that taping, whether audio or video, is relatively inexpensive both in terms of dollars and manpower. On initial impression that would appear to be a safe assumption; however, while the actual taping may not be particularly expensive, the consequences of taping can be.

For instance, any tape made would form part of the Crown’s brief. Thus, any important decisions that had to be made prior to a transcript being prepared, would require the Crown to spend significantly more time screening the tape. There is also the concern that the audio or videotaping of interviews may have a tendency to increase the length of interviews, the interviewer no longer feeling the need to be economical in his or her words now that he or she does not have to write them down. This is particularly so where the interviewer does not have to bear the cost of any transcript that might be prepared.

Perhaps the chief concern flows from the need for a transcript of the tape. When a tape is made, a transcript of the audio is usually required. The prosecutor, the defence and the trier(s) of fact all need a transcript of the audio for the trial and both counsel need their copy prior to trial. The making of transcripts is both expensive and time-consuming, thus an increase in the taping of interviews will significantly increase trial preparation costs and may lead to increased delays in advancing the court proceedings.

Furthermore, it is not clear that the actual capital costs are insignificant either. Ideally, each recording site would have a television monitor, two cameras, three to four interlinked video recorders with continuous time stamp, one audio monitor, one audio recorder, and colour video tapes. Then there are the costs relating to proper storage and the retention of equipment to access the information on the tapes in the future as technology changes.

In making recommendations in the past, it is not clear that these and related concerns have been adequately explored. The Heads of Prosecutions Committee is currently in the process of developing a “Disclosure Best Practices Protocol.” In developing that protocol, the issue of costs associated with videotaping will have to be addressed, particularly those arising from transcription. Any “Disclosure Best Practices Protocol” will need some consensus among police and prosecution services as to when interviews should be electronically recorded and transcripts provided, e.g. type of case, type of witness, etc. In the meantime, a minimum requirement should be established in an effort to reduce the risk of wrongful convictions.

The recommendation contained in the MacFarlane paper provides a useful starting point for discussion. The recommendation on taping was:

…custodial interrogations of a suspect at a police facility in a serious case such as homicide should be videotaped. Videotaping should not be confined to the statement made by the suspect after interrogation, but the entire interrogation process. (underlining added)

The underlined words, which are essentially drawn from the Marshall and Morin Inquiries, provide some necessary restraint, while at the same time cover the situations that have produced false confessions leading to wrongful convictions in the past. With some courts beginning to rule that there should be videotaping in respect of Criminal Code driving offences,[180] some definition of scope at this time is advisable.

There is some concern that the phrase “in a serious case” may be too general. Is a sexual assault a “serious case”? All sexual assaults? Is a residential break and enter a serious case? Again, all of them? The consensus of the Working Group was that clearer direction could be provided by recommending that videotaping occur in “investigations involving offences of significant personal violence (eg. murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.).” The intent is not only to provide clarity, but also to ensure that, at a minimum, investigations into those offences that have produced wrongful convictions in the past are captured by the videotaping recommendation. This is not to say that videotaping should be limited to these offences, but that at a minimum videotaping should occur in investigations involving these offences.

It should be noted that another way of dealing with the issue of when to require electronic recording was suggested. Instead of focusing on type of offence or person, perhaps the requirement could be defined by the nature of the interview. For instance, another possibility is requiring electronic recording at a police facility whenever the police provide a cautionary warning, such as Charter advice, the common law right to remain silent caution, K.G.B. warning, etc. This would avoid assessing whether the person is a suspect or whether the offence is serious enough. It would also have the added benefit of capturing interviews of unsavoury witnesses, where a videotape would be quite helpful.

One further issue arises - how much should be videotaped? Some police services tape only the making of the actual statement. Matters occurring beforehand are not taped. The Working Group concluded that this was not a practice to recommend. What leads up to the making of the “confession” has a significant bearing on the statement’s voluntariness and whether there has been compliance with the Charter. It should be videotaped. On the other hand, to require videotaping of all events leading up to the confession, from the moment that the person in authority comes in contact with the suspect, would be neither necessary nor feasible. Thus, the Working Group recommends that the “entire interview,” which would usually be what occurs in the interview room, be recorded.

The Working Group therefore recommends that the videotaping recommendation made by MacFarlane be adopted, with the revisions suggested above. Thus, as a best practice, it is recommended that:

Custodial interviews of a suspect at a police facility in investigations involving offences of significant personal violence (eg. murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.) should be videotaped. Videotaping should not be confined to a final statement made by the suspect, but should include the entire interview.

(b) Investigation standards and training of police and prosecutors

Recommending specific standards is beyond the mandate of this report. A more general recommendation is contemplated at this time. Drawing from the Morin Inquiry and MacFarlane, it is recommended that:

Investigation standards should be reviewed to ensure that they include standards for the interviewing of suspects (and witnesses) that are designed to enhance the reliability of the product of the interview process and to accurately preserve the contents of the interview.

Police investigators and Crown prosecutors should receive training about the existence, causes and psychology of police-induced confessions, including why some people confess to crimes they have not committed, and the proper techniques for the interviewing of suspects (and witnesses) that are designed to enhance the reliability of the product of the interview process.

VI. SUMMARY OF RECOMMENDATIONS

  1. Custodial interviews of a suspect at a police facility in investigations involving offences of significant personal violence (eg. murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.) should be video recorded. Video recording should not be confined to a final statement made by the suspect, but should include the entire interview.
  2. Investigation standards should be reviewed to ensure that they include standards for the interviewing of suspects (and witnesses) that are designed to enhance the reliability of the product of the interview process and to accurately preserve the contents of the interview.
  3. Police investigators and Crown prosecutors should receive training about the existence, causes and psychology of police-induced confessions, including why some people confess to crimes they have not committed, and the proper techniques for the interviewing of suspects (and witnesses) that are designed to enhance the reliability of the product of the interview process.