Characterizing legal consequences of making a statement or not can be an inducement
Ontario’s top court has found that an interviewing officer’s comments about the legal implications of not speaking rendered an arrestee’s statement involuntary.
By Mike Novakowski
In R. v. Wabason, 2018 ONCA 187 a man was stabbed and killed during a home invasion. The accused, a 19-year-old Aboriginal man, was arrested for first-degree murder and questioned by police. In the course of the interrogation, Wabason attempted to assert his right to silence numerous times and asked several times to be returned to his cell. However, the police repeatedly told him that if he spoke, he would be in less jeopardy (break and enter only), while if he did not speak, he would “take the fall” for a murder he did not commit.
Throughout the interrogation, the interviewing officer told Wabason that he did not think Wabason stabbed anyone, but that he should not take the blame for something he did not do. Moreover, the interviewing officer told Wabason that unless he spoke up immediately, he would “go down” for first-degree murder.
A judge of the Ontario Superior Court of Justice admitted Wabason’s statement, finding it had been voluntarily made. The judge concluded that Wabason had been properly advised of and understood his right to counsel, his right to remain silent and that nothing said to him should influence his making of a statement. In holding there was no quid pro quo, implicit or otherwise, the judge said, “There was no direct threats or promises or suggestions that the police could do anything to assist Wabason if he made a statement.”
Wabason was convicted of manslaughter and break and enter.
Wabason argued before the Ontario Court of Appeal that the trial judge erred in his voluntariness ruling. He challenged the judge’s determination that there were no direct threats or promises, and thus no quid pro quo to induce a statement. The Crown, on the other hand, submitted that the judge reasonably found there were no direct threats or inducements and that no quid pro quo was made, implicit or otherwise.
Justice Pardu, authoring the opinion of the Ontario Court of Appeal, agreed with Wabason that the statements made by the interviewing officer were an inducement. The officer suggested to Wabason it was to his “advantage to speak to police to avoid conviction for first-degree murder and — a threat — that unless the [accused] spoke, he would be convicted of first-degree murder for a crime he did not commit.”
Although the police did not promise to do anything themselves in exchange for Wabason speaking to them, characterizing the legal consequences of making or not making a statement, in this context, was more coercive than promising police or court action.
Pardu found the officer’s comments, in the context of the interrogation and statement, amounted to both threats and promises, and went beyond spiritual exhortations, or appeals to conscience and morality.
“Properly conceived, the interviewing officer’s veiled inducements of decreased jeopardy for speaking and threats of increased jeopardy for silence gave rise to an implicit quid pro quo,” Pardu said. “Given this quid pro quo, the application judge should have gone on to assess whether, in all the circumstances, the inducements and threats ‘standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne’.”
All of the circumstances include the characteristics of the individual suspect.
In this case, the Court of Appeal was of the view that Wabason’s statement should not have been admitted as evidence: “Taking into account the [accused’s] age, his personal circumstances, his futile assertions of the right to silence, his requests to return to his cell and the impact upon him of the officer’s repeated statements that, unless the [accused] spoke up, he was going to take the fall for a first-degree murder he had not committed.”
The Crown had not established, beyond a reasonable doubt, Wabason’s statement was voluntary. Wabason’s appeal was allowed, his conviction was set aside and a new trial was ordered.
Mike Novakowski is Blue Line’s case law columnist. He can be contacted at firstname.lastname@example.org.