Rethinking the Law of Interrogations and Confessions in Canada

This thesis is a discussion about the inadequacy of the Canadian confessions rule in light of what modern forensic psychology reveals about the human mind, and the propensity of legally-sanctioned interrogation tactics to cause suspects to make false confessions. Contemporary forensic psychology research makes it clear that many of the techniques used in police interviewing and interrogation can have the effect of subverting or overbearing an individuals free-choice and can cause them to make a false confession. Yet many of these same techniques are considered acceptable according to the Canadian law of voluntariness. This thesis examines the confessions rule and examines the key features of an involuntary confession as defined by the Canadian courts. The thesis also compares the structure and content of two different methods of interrogation used by contemporary police: the Reid Technique, and the PEACE model. The thesis will demonstrate the problems associated with each interrogation method, and will show how a suspect can be led into making an involuntary or false confession. The content of this thesis can be broken down into a number of stages.. The first stage takes a historical approach to the development of confessions law in England and shows how the judges of the nineteenth century gave shape to the basic rule for the admissibility of confessions evidence: the voluntariness doctrine. Next, the application of voluntariness in Canada is examined as the English law was adopted in Canadian cases. The concept of voluntariness then expanded on Canadian soil to take on additional features, which are discussed. These different historical developments are evaluated in light of Herbert Packers crime-control and due process models. Following this, there will be a discussion of the Charter of Rights and Freedoms impact on interrogation and confessions, where the protective capability of the section 10(b) right to counsel is explored.
In the next stage, this thesis will discuss the privilege against self-incrimination with a focus on the fact that many scholars want to do away with this ancient right and move towards an accused-speaks model.