The Common Law Confessions Rule in the Charter Era: Current Law and Future Directions

In an era of Charter protections, the common law rule excluding involuntary confessions remains a suspect’s best legal protection against coercive interrogation. This paper reviews and evaluates the current Canadian confessions rule and points to some ways the protection it offers might be strengthened. The basic contours of the rule are drawn from R. v. Oickle, the leading Supreme Court of Canada case, and refinements to the rule from the recent Supreme Court cases of R. v. Spencer and R. v. Singh are also discussed. The paper concludes that the confessions rule represents a modest but crucial safeguard for the accused that pursues the two distinct goals of excluding unreliable evidence and ensuring fair treatment of interrogated suspects. It is argued that the rule is better suited to promote the first of these two goals, since it reflects insights from the social science literature on false confessions but places only indirect restraints on interrogators. In any event, the need to balance suspects’ procedural protections against the exigencies of law enforcement places unavoidable limits on the rule’s capacity to advance either goal. The paper suggests several ways in which lawmakers might fortify the protection offered by the confessions rule: by imposing clearer limits on police practices, by offering further guidance on the treatment of vulnerable suspects, by encouraging police to record interrogations, by looking to other Charter rights as safeguards against coercive interrogation, and by educating juries about the problem of false confessions. Acknowledgment: This paper draws on my dissertation, the Problem of Jury Error in Canadian Criminal Evidence Law, which was completed in fulfillment of the requirements for the J.S.D. degree from Yale University. I gratefully acknowledge the institutional support of Yale Law School, and of the Social Sciences and Humanities Research Council of Canada, which funded the research with a Doctoral Fellowship