Chapter 4 - False Confessions

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I. Introduction

Though it may be difficult to understand, it remains true that innocent individuals sometimes confess to crimes they have not committed. As noted by Justice Binnie of the Supreme Court of Canada, in dissent, in R. v. SinclairFootnote 89:

It bears repeating that persons detained or arrested may be quite innocent of what is being alleged against them. Canada’s growing platoon of the wrongfully convicted, including the by now familiar roll call of Donald Marshall, David Milgaard, Guy-Paul Morin, Thomas Sophonow, Ronald Dalton, Gregory Parsons, Randy Druken, and others attest to the dangers of police tunnel vision and the resulting unfairness of their investigation. See The Lamer Commission of Inquiry Pertaining to the Cases of: Ronald Dalton, Gregory Parsons and Randy Druken, by the Right Honourable Antonio Lamer (St. John’s, 2006), at p. 171-73. Convinced (wrongly) of the detainee’s guilt, the police will take whatever time and ingenuity it may require to wear down the resistance of the individual they just know is culpable. As this Court recognized in R. v. Oickle, 2000 SCC 38 (S.C.C.), innocent people are induced to make false confessions more frequently than those unacquainted with the phenomenon might expect.

As this chapter highlights, considerable progress has been made in implementing the 2011 Report’s recommendations, which called for a review of investigation standards on the interviewing of suspects and witnesses, and training about false confessions.

II. 2011 Recommendations

  1. Custodial interviews of a suspect at a police facility in investigations involving offences of significant personal violence (e.g. 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.

III. Legal Developments and Commentary

a) The Right to Counsel

Section 10(b) Update

In a trilogy of cases released by the Supreme Court of Canada in October 2010 - R. v. SinclairFootnote 90, R. v. McCrimmonFootnote 91, and R. v. Willier,Footnote 92 - the Court declined to expand the scope of the right to counsel to include the right to have a lawyer present during an in-custody police interview and the continuing right to consult with a lawyer throughout the interview process. The Court held that police are not required to monitor the quality of legal advice once contact with counsel is made. Such advice is protected as privileged. Instead, in the absence of the detainee indicating that the advice received was inadequate, the police are entitled to assume that the detainee is satisfied with his or her exercise of the right to silence under Section 10b) of the Charter and carry on with their investigation.

b) Mr. Big Operations

“A confession provides powerful evidence of guilt, but only if it is true”.Footnote 93

A significant area of development since the 2011 Report has been judicial pronouncements on so-called “Mr. Big” cases, which some have suggested can lead to wrongful convictions.

Confessions derive their probative force from the fact that they are against the accused’s self-interest. The notion that people do not falsely confess has undergone a significant re-evaluation and, in known cases, has been discredited. Specifically, the circumstances in which Mr. Big confessions are obtained can particularly undermine this notion. While these operations have proved to be an effective investigative tool indispensable in the search for the truth, their very nature can raise the spectre of unreliable confessions, a known contributor to wrongful convictions.

As an undercover investigative technique used in serious, often “cold” cases, Mr. Big operations have a considerable history.Footnote 94 The potential they have to produce unreliable, i.e., false, confessions, either through overwhelming inducements or through police conduct that crosses the line from skilful to that which the community perceives as intolerable, has been a concern of the criminal law throughout the technique’s history. Mr. Big operations, by design, seek to elicit confessions from the target. These operations follow a general pattern. Undercover officers lure their suspect, or target, into a fictitious criminal organization. The target is befriended by the undercover officers over the course of several weeks or months and is shown that working with the organization is a pathway to financial and other rewards. There is often the particular lure of “the big score” in which the target stands to be enriched far beyond what he has received for his efforts on behalf of the organization to that point. However, in order to participate in the work leading to the “the big score”, the target’s participation must be approved by the organization’s head, Mr. Big. The operation culminates in an interview with Mr. Big. The undercover officers working most closely with the target stress the importance of being honest with Mr. Big. During the interview, Mr. Big raises the topic of the actual crime under investigation and questions the target about his involvement in it. Denials are rebuffed and Mr. Big presses for what the police believe to be a truthful account. It is readily apparent to the target that continued participation in the profitable activities of the organization, including “the big score”, depends upon the target confessing to the subject crime.Footnote 95

With its decision in R. v. Hart, the Supreme Court of Canada took an in-depth look at Mr. Big confessions and the principles that govern their admissibility. As noted by Justice Moldaver, to the date of the Hart decision, there were no established wrongful convictions stemming from the use of the Mr. Big undercover technique.Footnote 96 He further observed that Mr. Big confessions “have typically been received at trial”.Footnote 97 Targets of Mr. Big operations do not have the right to silence because they are not detained. Neither do they benefit from the Confessions Rule because they do not know they are speaking to police officers. As Justice Moldaver noted, trial judges have “only rarely” excluded Mr. Big confessions, none through an application of the abuse of process doctrine and only one because its prejudicial effect exceeded its probative value.Footnote 98

The Court established a new, two-pronged approach to address these issues in a consistent manner across Canada, something that had been lacking. In setting out a new analytical framework to assess the admissibility of statements produced in Mr. Big operations, the Court strove “to achieve a just balance - one which guards against the risk of wrongful convictions that stem from false confessions but which ensures the police are not deprived of the opportunity to use their skill and ingenuity in solving serious crimes”.Footnote 99

The SCC’s new approach seeks to address the risks recognized to be inherent in these statements, namely their potential unreliability and their prejudicial effect. The third risk, posed by the nature of the undercover operation itself, is potential police misconduct.

The Court found these risks to be substantially ameliorated by the new, two-pronged approach combining the presumptive inadmissibility of a confession to Mr. Big subject to a demonstration by the Crown that the confession is more probative (i.e., reliable) than prejudicial, together with a new, more robust conception of the doctrine of abuse of process. This two-pronged approach “strikes the best balance between guarding against the dangers posed by Mr. Big operations, while ensuring the police have the tools they need to investigate serious crime”Footnote 100 by in turn “ensuring that only those confessions that are more probative than prejudicial”, and which do not result from police conduct that crosses the line from skilful to abusive, are admitted into evidence”.Footnote 101

As noted, the burden of rebutting the presumed inadmissibility rests with the Crown. The onus of establishing an abuse of process rests with the defence, with case-specific determinations being made about whether the police conduct, such as exposing the target to scenes of threatened and “actual” violence or preying on the target’s vulnerabilities, coerced the target into confessing. Both onuses are on a balance of probabilities. The presence or absence of testimony from the accused on the Hart voir dire about his or her perception of, and reaction to, the undercover operation, is influential in the discharge of the defence burden.

Absent waiver or admissions by the defence, one can expect the Crown to lead the Mr. Big operation evidence culminating in the confession on a voir dire. As “gate-keeper”, the trial judge assesses the probative value and the prejudicial effect of the evidence and determines the threshold question of “whether the evidence is worth being heard by the jury” while reserving for the jury “the ultimate question of whether the evidence should be accepted and acted upon.”Footnote 102

It is inherent in Mr. Big operations that the accused is shown as engaging in what he or she believes to be criminal activities for financial and other forms of gain, such as friendship or camaraderie and lifestyle enhancement. The strength of these inducements can be significant, giving rise to reliability concerns. Willingness to engage in the activities of an ostensible criminal organization, feigned though they may be to the knowledge of all participants except the accused, reflects poorly upon the accused’s character and is thereby prejudicial. The presence of threats, particularly the use of physical violence, “actual” or threatened, may be coercive, giving rise to both reliability and abusive police conduct concerns.

The assessment of the reliability of a Mr. Big confession is analogous to the assessment of threshold reliability under the principled exception to hearsay.Footnote 103 Courts should look to the circumstances in which the statement was made and determine whether there is any confirmatory evidence.Footnote 104

Justice Moldaver provides a non-exhaustive list of factors relevant to this assessment of reliability.Footnote 105 These include:

The assessment of a confession’s probative value, or reliability, is augmented by the presence or absence of “markers of reliability”, again listed non-exhaustively:Footnote 106

The presence of confirmatory evidence is “not a hard and fast requirement, but where it exists, it can provide a powerful guarantee of reliability. The greater the concerns raised by the circumstances in which the confession was made, the more important it will be to find markers of reliability”.Footnote 107

The weighing of the confession’s prejudicial effect is a more familiar exercise, concerned with both moral and reasoning prejudice.Footnote 108 The risk of prejudice can be attenuated by the Crown not calling, or the trial judge excluding, certain pieces of particularly prejudicial evidence that are “unessential to the narrative” and by careful limiting instructions to the jury.Footnote 109 There is abundant appellate authority recognizing the lessened risk of moral or reasoning prejudice when the trial is before a judge sitting without a jury.Footnote 110

The abuse of process doctrine is intended to guard against state conduct that society finds unacceptable and which threatens the integrity of the justice system. Justice Moldaver acknowledged that in the context of Mr. Big operations, “thus far, the doctrine has provided little protection”.Footnote 111 The solution to this concern is the “reinvigoration” of the doctrine in this context. He set forth a number of guidelinesFootnote 112 to assist in the determination of whether a particular operation was abusive:

In general, misconduct on the part of the police that offends the community’s sense of fair play amounts to an abuse of process and warrants the exclusion of the confession.

Subsequent developments

There have been a number of cases where the Hart analytical framework has been applied to non-Mr. Big undercover operations.Footnote 113 Often in these cases, there were confessions made to undercover officers who were not posing as members of a criminal organization. In others, the confession was made to a police agent. In these cases, there was no presumption of inadmissibility but the trial judges considered it useful to apply the new framework to assess reliability versus prejudice, and abuse of process, concerns.

Very recently, in R. v. KellyFootnote 114, the Ontario Court of Appeal said this in response to the Crown’s submission that the presumption of inadmissibility did not apply to a confession obtained through an undercover operation involving the target being told he was the beneficiary of a life insurance policy on the deceased’s life:

[35] Clearly the police sting scheme that was used on the appellant is missing the most offensive tactics of the traditional Mr. Big operation: no criminal organization, no Mr. Big, no violent culture, no friendship and camaraderie. What this scheme used was the inducement of a large financial payout based on a fraud on the insurance company. For me, the relevant question is: is there in this police sting scheme sufficient potential for the three dangers: unreliable confessions, prejudicial effect of the evidence of the appellant’s participation in the scheme, and potential for police misconduct, to warrant the application of the new approach from Hart?

[36] In my view, the answer is yes. I say this for two reasons. The first is that the scheme is clearly a variation of a Mr. Big, with the same police intent to induce a stranger into dishonest conduct by holding out a potentially powerful inducement to confess, whether truthfully or untruthfully. Therefore, reliability in engaged, as is prejudice. Second, in my view, it serves little purpose to conduct an analytical exercise of differentiating and distinguishing variations of police schemes, when the same concerns are raised, even though those concerns may be attenuated.

Expert Evidence and Jury Instructions

One area where Hart has not resulted in any change to date is the admissibility of the evidence of expert witnesses tendered by the defence to testify about the prospect of false confessions produced by the Mr. Big undercover technique, or about the particular susceptibility of the accused due to his or her personality, or both. By and large, as discussed in the 2011 Report, such evidence was inadmissible before Hart and it remains so. In R. v. Ledesma,Footnote 115 although the appeal was allowed for other reasons, the Alberta Court of Appeal affirmed the trial judge’s decision not to permit this testimony from a witness tendered as an expert in the area of police undercover investigations and the reliability, from a psychological perspective, of Mr. Big confessions. The Court found it was unnecessary under the R. v. MohanFootnote 116 test.

In R. v. Mack, the companion case to Hart, the Supreme Court addressed in the main the proper ingredients of a jury instruction in a Mr. Big case. Rejecting the notion that a jury must be instructed that Mr. Big statements are “inherently unreliable”, Justice Moldaver held that:

[T]rial judges are required to provide juries with the tools they need to address the concerns about reliability and prejudice that arise from these confessions. The nature and extent of the instructions required will vary from case to case.Footnote 117

Justice Moldaver nevertheless went on to offer “some guidance - short of a prescriptive formula.”Footnote 118 He suggestedFootnote 119 that trial judges should:

Compendiously, trial judges should alert the jury to the concern about the reliability of the confession, and highlight the factors relevant to assessing itFootnote 120 and leave the jury equipped to deal with the concerns of reliability and prejudice.Footnote 121

Going Forward from Hart

It is beyond the scope of this report to track all the post-Hart decisions but some significant trends from the reported decisions can be addressed and are important to note in preventing possible wrongful convictions. Without question, one of the big issues flowing from the post-Hart cases is the exposure of the target to violence or threats of violence in the course of various undercover scenarios.

By and large, the cases have held that the inclusion of scenarios exposing the target to violence or the threats of violence does not, per se, render the confession inadmissible as coerced and thus unreliable or constitute an abuse of process on the basis of unacceptable police conduct. These cases have recognized that violent scenarios can be necessary in order to convey the impression to the target that the criminal organization engages in violent conduct to create a context or milieu where the target will feel more comfortable describing his or her own violent actions in connection with the offence under investigation. It can be legitimate, for example, when the target is suspected of having murdered a woman, for the undercover scenario to threaten, or to simulate the infliction of physical violence against, a woman. Some background or contextual evidence from the police explaining why violence was resorted to can be important. At the same time, a target’s participation in a violent scenario can increase the risk of moral prejudice.

In the result, as highlighted by the recent case law, there are any number of questions to be posed in these circumstances. These include:

Depending on the circumstances of a given case, all these questions could be important. Potentially the most important is against whom the threats of violent conduct are directed. It serves to recall that in Hart, when citing physical violence or threats of violence as examples of coercive police tactics, Justice Moldaver noted that “[a] confession derived from physical violence or threats of violence against an accused will not be admissible - no matter how reliable - because this, quite simply, is something the community will not tolerate.”Footnote 122

An example of this principle is found in the Nova Scotia case of R. v. Derbyshire.Footnote 123 This case did not involve a Mr. Big operation in a strict sense inasmuch as undercover officers posing as members of an outlaw motorcycle gang, intending to obtain information against another suspect, had only one interaction with Ms. Derbyshire, the accused. The operation did not result in evidence against the other suspect, but Ms. Derbyshire implicated herself in the one scenario and was charged with being an accessory after the fact to murder. While ruling that this was not a Mr. Big operation per se and that the presumption of inadmissibility was not applicable, the trial judge nevertheless applied the Hart factors and concluded that the undercover operation was coercive and constituted an abuse of process. He excluded the evidence obtained and acquitted the accused. The Crown appealed.

The Nova Scotia Court of Appeal upheld the exclusion of the evidence and the acquittal, agreeing that courts cannot condone the conduct of the police of the kind about which the trial judge made “very clear, strong findings of fact.”Footnote 124 It was clear the undercover officers were aggressive and intimidating in their dealings with the accused. She was essentially confined inside a vehicle with them for many hours. Implicit threats of physical harm were levelled against her. The trial judge largely accepted the accused’s voir dire testimony about feeling fearful, intimidated and coerced. In upholding the decision, the Court concluded:

It is not the aura of violence and intimidation in general that crosses the line. It is when the intimidation and threats express or implied, coerce the accused to provide inculpatory evidence.Footnote 125

What about when violence is used or threatened against someone other than the targeted accused? In R. v. Laflamme,Footnote 126 the Quebec Court of Appeal found the scenarios of simulated violence against a female debtor, portrayed by an undercover officer, described both as a “collaborator” and a “member” of the organization, to be coercive. In addition, the Court pointed to the evidence that the target was told that if he didn’t succeed in being admitted to the organization, the primary undercover operator “would pay the price”. The third aspect of the operation that led to the finding that the confession to Mr. Big was inadmissible as an abuse of process was the general message that the organization would not hesitate to use violence against its own members.

The B.C. Court of Appeal, in a series of decisions,Footnote 127 has distinguished Laflamme and found that the inclusion of violent scenarios did not constitute an abuse. In these cases, the target or anyone close to him, including the primary operator, was never directly or by implication threatened with violence. Any violence, such as a simulated beating, feigned kidnapping and mock execution, was directed at non-members, or outsiders, only. The undercover officers consistently told the target that he had nothing to fear at the hands of the criminal organization. Violence was not exacted upon members not performing up to standards. The consequence to them was mere expulsion from the organization. The courts of appeal in SaskatchewanFootnote 128 and AlbertaFootnote 129 have also distinguished Laflamme on similar bases.

Judicial tolerance of simulated violence in appropriate circumstances notwithstanding, it is now likely that courts will be less tolerant of violent scenarios in which the target, or someone close to him or her, is directly or indirectly threatened with violence. Courts will want to see that the designers of these undercover operations are taking the admonitory language in Hart to heart. Police are now alerted to the risks associated with the use of gratuitous violence in their undercover operations.

Contextual, Explanatory Evidence from the Cover Team/Operation’s Designer

It can sometimes be useful for the prosecution to adduce behind the scenes, or contextual, evidence from the officers in charge of the operation. This evidence can address the technique and its objectives generally or the specifics of the operational decisions made in the given case. An example is for the police to testify and explain what they hoped to achieve in certain violent scenarios. In WestFootnote 130, Justice Frankel wrote:

[98] In the present case, the officer who directed the undercover operation gave the following explanation for why simulated violence was used in the second pornography scenario:

It was directly to show Mr. West that violence against women was accepted in our organization. The investigation was a homicide on a female and we wanted to show him that women — to conduct violence on women is not a big deal.

[99] Neither the pornography scenarios nor the use of simulated violence are of such a nature as to render the Mr. Big operation an abuse of process. Those scenarios were used to indirectly communicate to Mr. West that the undercover officers had little respect for women and were unconcerned about the use of violence against women. Given the nature of the murder being investigated, it is understandable that the police would want to create an atmosphere in which Mr. West would not be reluctant to discuss his own involvement in violence against women. …

This type of evidence can stray beyond permissible bounds. In R. v. Worme,Footnote 131 a case concerned with the ultimate reliability of the Mr. Big confession, police evidence was found to be self-serving by giving the impression that the technique always produces true confessions and, concomitantly, that the accused’s testimony at trial recanting the confession is not true. Characterizing this evidence as a form of oath helping, together with improper limitations on cross-examination challenging this impression, the Court allowed the conviction appeal and ordered a new trial on a charge of first degree murder.

c) Police Interviews of Suspects

As noted in the 2011 Report, a confession from an accused person is a particularly powerful form of evidence. The interviewing of accused persons remains a key strategy in police investigations, and the resulting evidence may be critical to solving the crime, recovering physical evidence and property, and potentially preserving life.

Most people may tend to assume that an innocent person would not falsely confess to a crime they didn’t commit unless they were tortured or psychologically disturbed.Footnote 132 However, both research and real-life examples have shown that innocent persons may falsely confess for a variety of reasons.Footnote 133

The causes of false confessions have been determined to potentially include both characteristics of the individual that may make them increasingly vulnerable to providing a false confession, and also the nature of the tactics used by the police in questioning the subject. Problematic police tactics identified in the literature as potential contributors to false confessions include lengthy interviews, accusatorial and guilt-presumptive questioning styles, the use of false evidence, and the use of minimization tactics that imply leniency.Footnote 134

Canada’s rules regarding the admissibility of statements of accused persons are more stringent compared to the criteria in the United States.Footnote 135 The assessment of the voluntariness of the statement (the common-law Confessions Rule) and compliance with the Charter remain the criteria for the admissibility.Footnote 136 The Confessions Rule was re-stated in R. v. OickleFootnote 137, and focusses on four areas: a) the presence of inducements, b) oppression, c) the operating mind of the interview subject, and d) the use of police trickery, which is a separate and distinct inquiry (the ‘community shock’ test).

In Oickle, the Supreme Court noted:

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.Footnote 138

The 2011 Report cautioned that when assessing a purported confession for use in a prosecution, police and prosecutors should look for internal consistency (a coherent, logical narrative of events) and external consistency (corroboration with known facts) to ensure that the confession is reliable.

Since the 2011 Report, there has been continued judicial and academic scrutiny of police interview methods, particularly the Reid Technique - an interview style that has been widely used by both American and Canadian police agencies for decades. Alternative interviewing methods have been explored by numerous police agencies, including the PEACE model adapted from the UK.Footnote 139 More recently, the RCMP transitioned to the Phased Interview Model - a hybridized model containing elements of numerous scientifically-validated techniques including cognitive interviewing, conversation management and elements of the PEACE model. At around the same time that the RCMP transitioned to the Phased Interview Model, the Toronto Police Service transitioned to the Progressive Interview Model - also a hybrid interview model utilizing an evidence-based approach.

The Reid Technique

The Reid Technique is an interview process created in 1947 by John E. Reid, and taught by Reid and Associates to police across North America for decades. The process consists of three parts: a Factual Analysis (file review), a Behaviour Analysis Interview in which the interviewer assesses the subject’s responses and body language to determine whether the suspect is truthful or deceptive, and a guilt-presumptive Interrogation if the Interviewer determines that the subject was deceptive during the preceding Behaviour Analysis Interview. During the Interrogation, the Interviewer controls the dialogue through a Nine-Step process designed to elicit a confession from the suspect. After the suspect confesses to the crime, the Interviewer develops the admission into a detailed confession containing details of the offence and potentially reduces the confession into a written form.Footnote 140

One of the most frequent criticisms of the Reid Technique focuses on the Behaviour Assessment Interview. According to a large body of research, law enforcement professionals have demonstrated the ability to correctly discriminate between truthful and deceptive behaviours by interview subjects at a rate slightly better than chance (50 percent), and that the Behaviour Assessment Interview taught as part of the Reid Technique may actually cause interviewers to perform worse. Footnote 141 This in turn may create confirmation bias,Footnote 142 generating a confession-driven attitude in the interviewer rather than a fact-gathering attitude. The cumulative effect creates a risk that police will mistakenly categorize innocent people as being ‘guilty’ during the Behaviour Assessment Interview, singling them out for Interrogation and creating an increased risk of generating a false confession by subjecting them to a potentially coercive, guilt-presumptive interview.Footnote 143

There is a growing body of academic research suggesting that the Reid Technique, although effective at generating confessions from guilty suspects, may also represent an increased risk for obtaining false confessions from innocent subjects due to the potentially coercive nature of the interview. Criticisms of the Reid Technique include that the Interrogation portion of the interview may be lengthy, accusatorial and confrontational in style. These factors may be exacerbated by potentially problematic police actions such as shutting down denials, presenting false evidence implicating the suspect in the crime, and the use of minimization techniques that imply leniency. Footnote 144

A very pointed criticism came in R. v. ChappleFootnote 145, 2012 ABPC 229, where the Court found during a preliminary hearing that the confession of the suspect was inadmissible following a lengthy, accusatorial interview closely adhering to the Reid Technique. The Court determined that, among other factors, the police had misrepresented the existing evidence by disregarding alternative facts that may have supported the accused’s version of events, that the interviewer was also found to have denigrated the legal advice received by the accused, and that the interviewer ignored the accused’s attempted assertions of her right to silence to a degree that overrode the ability of the accused to remain silent.

In finding the statement inadmissible, the Court provided the strongly worded comment that “Although there is no law prohibiting the use of The Reid Technique, I find that it has the ability to extinguish the individual’s sacred legal rights to be presumed innocent until proven guilty and to remain silent in the face of police questioning. “Footnote 146 Notwithstanding the criticism of the Reid Technique by the Court, the decision to find the statement inadmissible was consistent with existing case law on voluntariness.

Prevention of False Confessions

It should be noted that the factors cited in criticism of the Reid Technique are explicitly considered in the voluntariness assessment under the common law Confessions Rule, and police interviewers in Canada cannot blindly use the Reid Technique without awareness of the potential impacts of the interview technique and sensitivity to the voluntariness requirements in law.

Taking this further, among the recommendations in the literature to prevent police investigators from committing the errors that may lead to a false confession, education is the most common. Specifically, it has been recommended that investigators should be educated that research does not support the belief that interviewers possess the ability to differentiate between innocent and guilty subjects based on their actions in a Behaviour Analysis Interview. Further to this, investigators should be trained that no one should ever be subject to an Interrogation unless there is reasonable evidentiary basis for believing in his or her guilt. Finally, investigators should be educated about the empirical scientific research about the psychology of police interrogation and the potential causes of false confessions. If investigators are more aware of how and why their techniques work, and why those techniques may contribute to incidents of false confessions, they may be more able to prevent obtaining false confessions from innocent subjects.Footnote 147 These recommendations are consistent with the recommendation in the 2011 Report for ongoing education for police, prosecutors and other justice system participants about the causes and risks of false confessions.

Alternative Interview Methods

There are numerous alternative interview models and techniques to Reid. Some models are more accurately described as techniques, which offer components that may be implemented into a broader systematic approach to interviewing suspects, such has Conversation Management, Cognitive Interviewing or the Strategic Use of Evidence (SUE) Technique. These techniques, in and of themselves, do not provide a comprehensive approach to conducting a systematic interview of a suspect. These techniques also do not in and of themselves take into account the potential impact of Canada’s laws concerning admissibility and the legal / procedural protections entitled to suspects.

The PEACE Model

In response to several high-profile wrongful conviction cases in the United Kingdom that were attributed, in part, to manipulative and coercive interviewing practices, the United Kingdom implemented reforms to police interviewing practices in the early 1990s. The resulting interview model is known as PEACE, an acronym that stands for the steps of the interview process - Preparation and Planning, Engage and Explain, Account, Closure, and Evaluation. PEACE is a non-accusatory, rapport-based interview style that teaches investigators to focus on gathering facts rather than seeking confessions and may be used for witness, victim and suspect interviews. Benefits ascribed to the PEACE model include that it does not make use of coercive interview strategies associated with the potential for false confessions. Footnote 148

The PEACE model is a product of the British legal system, and is not directly applicable to the Canadian legal context without adaptation. Unlike in Canada, the British courts may draw an adverse inference from the suspect’s silence during a police interview if the suspect fails to mention evidence that he or she later relies upon at trial.Footnote 149 This represents a marked contrast from the Canadian legal system, in which no adverse inference can be drawn from a suspect’s silence. As a result, in the British context there are potential situations where there is systemic pressure for a suspect to make a statement; these situations are not present in Canadian experience. In another contrast, the Canadian courts have permitted the use of persuasion in the course of police interviews so long as the statement is not obtained in an oppressive or coercive manner, a practice that is not authorized in the United Kingdom and which is a dimension lacking in the PEACE Model.

Hybridized Interview Models

‘Hybridized’ interview models have emerged in North America as a result of the increased awareness of the potential for obtaining false confessions from innocent persons. Generally, these interview models seek to maximize the potential for gathering information from suspects of crimes while minimizing the risk of creating a coercive environment that may contribute to the risk of obtaining a false confession. Many of these models are influenced by the PEACE model, adapted for use in legal environments other than the United Kingdom and utilizing empirically validated techniques from a variety of methods. The use of persuasion, accepted by Canadian courts, is a feature of hybridized interview models that is not present in the PEACE model.

The RCMP Phased Interview Model

The RCMP Phased Interview Model for Suspects, adopted in 2014, is an example of a hybridized approach. The Phased Interview Model contrasts two specific components: non-accusatory interviewing (the vast majority of interviewing) and accusatory interviewing (a conscious decision when the investigator possesses tangible evidence implicating the suspect and attempts to gather information through non-accusatory interviewing have been exhausted). The model consists of 6 ‘Phases’: 1) Review, Preparation and Planning, 2) Introduction and Legal Obligations, 3) Dialogue, 4) Version Challenge, 5) Accusation and Persuasion, and 6) Post Interview Review. The model is designed to be responsive to the interview subject’s behaviour, and interviewers are trained to establish and maintain dialogue with the subject through rapport in a non-accusatorial manner through Conversation Management and Cognitive Interviewing techniques. The Phased Interview Model recommends video recording of all suspect interviews where practicable, and audio recording in situations where video recording is not practicable.

When it becomes clear that a suspect has provided information contradicting facts known to the police, or omitted information known to the police, the suspect may be challenged in a non-accusatorial manner through the Strategic Use of Evidence technique in an effort to generate new information. If objective evidence of the suspect’s guilt exists, and attempts at dialogue and challenges have been unproductive in obtaining a version from the subject, interviewers may choose to move to an accusatorial interview focused on the use of persuasive interview techniques with the objective of encouraging the suspect to engage in dialogue. The focus of the model is gathering information, and not seeking confessions. Unlike in the Reid method, when faced with denials the interviewer will attempt to develop additional information through a return to dialogue and the development of a version. This in turn may lead to a challenge based on the Strategic Use of Evidence technique and then back into dialogue and the development of a new version. At the conclusion of the interview process, the information gathered is evaluated by the interviewer against known facts and an assessment is made about the reliability of the information received and the potential for gathering additional information from the suspect through additional interviews.

Consistent with the recommendations in the literature, interviewers are taught that relying on behavioural analysis techniques to detect deception is inherently unreliable. Interviewers are taught instead to utilize Objective Veracity Assessment, which is the corroboration or disproval of information provided by the suspect against known facts. The emphasis of the approach is on generating information through dialogue.

The Supreme Court of Canada noted in SinghFootnote 150 that the right to silence does not include the right not to be spoken to by police, although care must in turn be taken by police to not overbear the suspect’s meaningful right to choose whether or not to speak. Consistent with the principles of the Confessions Rule in OickleFootnote 151, investigators are taught to use persuasive interview techniques in a manner that remains cognizant of the potential impact of those techniques, and the limits prescribed to the use of persuasive techniques by the courts. In the Phased Interview Model, interviewers are also taught about the potential causes of false confessions, and the association of factors such as the use of false evidence, lengthy, oppressive interviews, and inappropriate minimization techniques such as implicit and explicit offers of leniency

The Phased Interview Model places an emphasis on non-accusatorial, rapport-based interviewing using empirically validated methods and provides investigators options consistent with Canadian law that are not present in the PEACE Model to engage with suspects who refuse to participate in dialogue. It was adopted as the training standard for all interviews of suspects by the Royal Canadian Mounted Police in 2014. The Model has since been adopted by other agencies in Canada including the Canadian Police College, the Royal Newfoundland Constabulary, and Edmonton Police Service.

The High Value Detainee Interrogation Group [HIG] Model (United States)

The HIG, a joint task force of interview specialists drawn from the FBI, CIA, Department of Defense and other partner United States law enforcement agencies, was formed in 2009 to improve the ability of the US Government to conduct terrorism-related interviews. The HIG is supported by a research program to review the existing research on interview techniques and commission new scientific studies about interview methods.Footnote 152

The HIG Model is more accurately described as a collection of techniques adapted from original and existing research. The model consists of a variety of techniques and frameworks delivered in non-accusatorial, rapport-based interview style. The model is team-based and places an emphasis in preparation and planning, dialogue and rapport. The model emphasizes the use of open-ended questions, active listening, and strategic use of evidence to guide interview objectives and assess the veracity of information obtained from the interview subject. Interviewers adapt new strategies drawn from existing concepts and tailored to their interview subject to avoid reliance on formulaic approaches and techniques.Footnote 153

The HIG Model is influenced by the PEACE Model and draws from similar source material as the RCMP Phased Interview Model. The ‘lack of model’ approach, while suitable for the HIG context, would likely be difficult to implement in a police context where interviewers may be drawn from widely varying levels of experience and knowledge, presenting a barrier for implementation in Canada. The HIG Model was created in the American system and does not take into account Canadian law regarding the admissibility of statements.

d) Canadian Law Enforcement Policy/Practice Regarding the Recording of Police Interviews/Interrogations

There is no law in Canada requiring statements to be recorded, however there is much caselaw, including the leading case on voluntariness, R v Oickle, that suggests that where possible, a complete record of the interview will be of utility in making a determination of voluntariness. It can be expected that there will be challenges in cases where the statement was not recorded, although in and of itself the absence of recording as a factor may not cause a statement to be excluded. Some agencies have addressed the issue by providing specific direction on what interviews/interrogations will be recorded, however most only provide general guidelines. The following is a random sampling of such policies.

RCMP

“Unless extenuating circumstances exist, audio and/or video recording must be used when taking statements from suspects, accused persons, eye witnesses, and victims in relation to significant criminal investigations.”Footnote 154

Just what is a significant criminal investigation varies depending on the context. For example the same crime in a small community (e.g., theft) may meet that threshold where that may not be the case in a large urban area.

For further clarification, interviews must be video and/or audio recorded when:

Victoria Police Department

“Members conducting an interview of an individual who is a:

Should have a second member present to monitor the interview/interrogation.”Footnote 155

There is no specific direction to record the interview.

Toronto Police Service

Toronto’s policy provides a general statement that the electronic recording of a statement is very valuable and the courts have come to expect them, therefore where practicable, they should be recorded. The more serious the offence, the greater the expectation that statements will be electronically recorded.

The policy states the following:

“The video recording system (VRS) should be used for all statement processes, but where this would be impractical or where the recording equipment is unavailable, investigators should be prepared to justify in court why the video recording system was not used.”Footnote 156

Edmonton Police Service

Policy directs when statements should be recorded as follows:

“Custodial interviews of a suspect or accused person at a police facility in investigations involving offences of significant personal violence (e.g., murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.) or other significant criminal offences (such as drug trafficking) as identified by the police investigators based on the circumstances and seriousness of the offence should be video recorded. The video recording should not be confined to a final statement made by the suspect, but should include the entire interview.

Where the police set about to interview a suspect or an accused person and video recording equipment is readily available, failure to video record the interview will likely cause the courts to question the voluntariness of any such statement, potentially resulting in the suspect or accused statement being ruled inadmissible. If an interview of a suspect or accused person is not video recorded, members should make a note in their notebook, or in the police report, as to why the interview was not video recorded. This will assist in court if the statement is challenged by defence.”Footnote 157

Winnipeg Police Service

Mandatory Use of Recorder:

“Any suspect/accused taken into custody on the strength of a Criminal Investigation Bureau (CIB) investigation will be subject to continuous recording, regardless of the nature of the investigation.

Any suspect/accused taken into custody by members who are not assigned to CIB and:

Must subject the suspect/accused to continuous recording, regardless of the nature of the investigation.

Non Mandatory Use of Recorder:

Any suspect/accused taken into custody by members who are not assigned to CIB and the offence is not normally dealt with by CIB members, may be recorded.”Footnote 158

The above is subject to exceptions such as the recording equipment is not available or has failed.

Clearly, police agencies across Canada are aware of the case law and academic commentary related to the use of audio and/or video recorded statements and have reflected this in their policies and procedures.

IV. Status of Recommendations

The 2011 Report noted that although it was not a mandatory requirement to record interviews, it was recommended as a best practice to reduce the likelihood of wrongful convictions. Most police agencies have amended their policies and practices to clarify, at a minimum, that all custodial interviews involving offences of significant personal violence should be recorded. Due to practical considerations, agencies have stopped short of mandatory requirements however they have clearly articulated that the failure to use electronic equipment when available will receive judicial scrutiny.

The other recommendations, calling for a review of investigation standards respecting the interviewing of suspects and witnesses and training about false confessions, has resulted in significant changes in police policies and training across Canada. For example, in Alberta the Investigative Skills Education Program was introduced which ensures police officers are trained properly in various interview techniques and also receive instructions on the dangers of false confessions. The Edmonton Police Service also created an Interview Support Team with the goal of having a team of interview experts available to assist and ensure all interviews are conducted in accordance with the law, including the need to minimize the possibility of false confessions. The Phased Interview Model was introduced by the RCMP in British Columbia and is being used in many parts of the country. Many agencies in Canada have modified their investigative standards and training to ensure adherence with current academic research and literature.

V. Discussion Of 2011 Recommendations

The 2011 Report’s first recommendation suggested the video recording of custodial interviews of suspects in “investigations involving offences of significant personal violence (e.g. murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.)”. The Subcommittee again considered broadening the types of investigations which should be recorded but concluded that the rationale underlying the phrase “offences of significant personal violence” still applied and therefore should remain as is. However, this should include interviews of suspects as well as interviews of key witnesses related to those same investigations.

Improvements in technology and the corresponding reduction in related costs has resulted in police agencies equipping officers responsible for these types of investigations with handheld digital devices capable of recording in the field. Therefore, it is reasonable to expand the recommendation to include non-custodial interviews of suspects in investigations involving offences of significant personal violence and key witnesses. Many significant personal offence investigations are transferred to the “cold case” category and reopened years later due to advances in technology related to DNA, etc. Recorded witness interviews are very beneficial in assisting with memories that have faded over time.

Interview “techniques” have received considerable attention by the courts and academics since the first Report was released. There has been a slow movement away from sole reliance on the Reid “accusatory” style of interview towards greater use of non-accusatorial/persuasive and hybridized techniques. There are robust protections within the Canadian legal system to assess the voluntariness of statements of accused persons prior to their use as evidence. Education of police and Crown prosecutors on the factors associated with the risk of false confessions is integral to minimize the risk of obtaining false confessions through inappropriate interview techniques. It is incumbent on all police agencies to continuously assess their interview training, policy and practices to ensure they are consistent with current case law and research.

Since the 2011 Report there has been considerable judicial consideration of covert interview techniques. Although there are no known cases of a wrongful conviction due to a Mr. Big type operation, the potential that this may occur certainly exists. Since the suspect is not detained, he/she is not afforded the protection of Section 10(b) nor does the Confessions Rule apply. As such, the new two-pronged approach set out by the Supreme Court of Canada to avoid false confessions should be part of police and Crown training in order to ensure all practices and strategies will minimize the very real risk of false confessions occurring during these Covert scenarios.

VI. Updated Recommendations

  1. All interviews of suspects and key witnesses in investigations involving offences of significant personal violence (e.g., murder, manslaughter, criminal negligence causing death or bodily harm, aggravated assault, aggravated sexual assault, sexual assault of a child, armed robbery, etc.) should be audio and video recorded. Audio and video recording should not be confined to a final statement made by the suspect, but should include all contacts with the suspect through the course of the investigation.
  2. Investigation standards should be continuously 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. This should include an understanding of the case law and academic literature related to the appropriate balance between “persuasion” and “accusatory” interview strategies.
  3. Police investigators and Crown prosecutors should receive ongoing 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.
  4. Investigation standards should be reviewed to ensure there is a consideration of the inherent risk of false confessions in Covert Operations. These risks are not limited to a “Mr. Big” operation but also may be a factor in any type of undercover scenario where the suspect is unaware that he/she is speaking with the police or a police agent.

Recommendations Specific to Mr. Big Undercover Operations:

  1. Police should ensure there is no release of holdback evidence, such as the specific details of the offence, for example, the murder weapon used and the nature of the deceased’s injuries, either to the public before the operation is mounted or to the target during its course. This care should be taken in recognition of the fact that the most significant marker of reliability of a confession to Mr. Big is the target’s knowledge of the details held back by investigators. In addition, the undercover operator(s) working closely with the target should also not be provided with any information concerning the holdback evidence.
  2. Police should take great care to ensure that a target’s vulnerabilities, such as his or her young age, mental health, social isolation or dire financial straits, are not exploited or taken advantage of during the operation.
  3. Police should take care in the use of scenarios portraying violent or threatening conduct seemingly perpetrated by undercover officers. Their convincing portrayals that they are members of a criminal organization not ill-disposed to violence should not be created without first giving thought as to whom the violence or threats of violence are being directed, that individual’s connection to the criminal organization, and the closeness of his or her relationship to the target.
  4. Prosecution services should consider offering in house training on the lessons to be learned from Hart and its new analytical framework, given the serious nature of the charges for which the technique is most often employed.
  5. Crown counsel conducting a trial involving a Mr. Big undercover operation should have a clear understanding of the Supreme Court’s ruling in Hart and the limitations imposed on such operations. Counsel should obtain from investigators a written breakdown of all the scenarios employed in the course of the operation, from pre-operation background checks to initial contact through to the culminating confession to Mr. Big and any post-confession re-enactments or attendances at the crime scene with the target. Crown should determine how many of these scenarios were recorded and obtain transcripts, if available. Crown should either listen to the recordings or review the transcripts, or both.  Special attention should be paid to scenarios involving violence or threats of violence. If these are viewed as potentially problematic to the prosecution, either due to their prejudicial effect or due to abuse of process concerns, discussions with the officer(s) who designed the operation should occur so that timely decisions can be made about adducing contextual evidence to address the specific operational decisions made to include them. In making decisions about leading this type of contextual evidence, Crown should bear in mind the permissible bounds of such evidence.
  6. Crown counsel should consult with prosecutors in the various prosecution services across Canada who have conducted trials in which Mr. Big undercover evidence was led or appeals in which admissibility and abuse of process rulings are in issue, to share experiences and to benefit from lessons learned.

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