Osgoode Hall Law Journal

Article 4
Volume 18, Number 1 (March 1980)

Horvath v. The Queen: Reflections on the Doctrine

of Confessions
Allan C. Hutchinson
Osgoode Hall Law School of York University, [email protected]

Neil R. Withington

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Journal 18.1 (1980) : 146-171.
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 HORVATH v. THE QUEEN:
REFLECTIONS ON THE DOCTRINE
OF CONFESSIONS
By ALLAN C. HUTCHINSON* and NEIL R. WITHINGTON**

Rigid formulas can be both meaningless to the weakling and absurd to the sophisti-
cated or hardened criminal; and to introduce a new rite as an inflexible preliminary
condition would serve no genuine interest of the accused and but add an unreal
formalism to that vital branch of the administration of justice.1

I. INTRODUCTION
Within the criminal process, the rules of substantive law and of evidence
have very different, yet highly complementary roles to play. The substantive
law is of primary importance in formulating and establishing the circum-
stances and conditions under which criminal sanctions will be imposed upon
individuals. On the other hand, the supportive task of the law of evidence is
to determine which facts will be placed before the court in deciding whether
such circumstances and conditions exist. 2 In striving to meet this expectation,
the law of evidence has been deeply influenced and fashioned by the dictates
of policy. There has been general agreement that, in the interests of a fair
trial, certain relevant facts should be inadmissible.3 As a result, the rules that
have developed are not simply the product of ineluctable logical analysis, but
"originate in the instinctive suggestions of good sense, legal experience and a
sound, practical understanding." 4

@Copyright, 1980, Allan C. Hutchinson and Neil R. Withington.

* Of Gray's Inn, Barrister, Sessional Lecturer at Osgoode Hall Law School, York
University.
** Sessional Lecturer at Osgoode Hall Law School, York University.
3 Boudreau v. The King, [1949] S.C.R. 262 at 270, [1949] 3 D.L.R. 81 at 88 per
Rand J.
2
For a penetrating survey and compelling contribution to the philosophy underly-
ing the law of evidence, see Montrose, Basic Concepts of the Law of Evidence (1954),
70 L.Q. Rev. 527; and Eggleston, Evidence, Proof and Probability (London: Wieden-
feld and Nicolson, 1978) at 1-10.
3 There exists a number of jurists who maintain that all logically relevant evidence
should be admissible as legally relevant and that is for the jury to assign appropriate
weight to the evidence. With heavy-handed cynicism, one writer expressed the opinion
that the continual reliance on policy was to be deplored and spoke of the law of evi-
dence in derisive terms: "Founded apparently on the propositions that all jurymen are
deaf to reason, that all witnesses are presumptively liars and that all documents are
presumptively forgeries, it has been added to, subtracted from and tinkered with for two
centuries until it has become less of a structure than a pile of builders' debris;" Harvey,
The Advocate's Devil (London: Stevens, 1958) at 79.
4 Thayer, Preliminary Treatise on the Law of Evidence (New York: Augustus M.
Kelly, 1969) at 4.
1980] Confessions Rule
Although policy may be "the secret root from which the law draws all
the juices of life," 5 the preference in the law of evidence for policy over logic
does not mean that the need to articulate and develop rules rationally should
be ignored. Sound and efficacious legal rules presuppose rigorous and con-
scious reflection on the implications and goals of any proposed scheme. Fur-
thermore, policy is a protean concept: it is constantly forced to accommodate
itself to changing circumstances and to reflect the resulting shift in objectives
and purposes. Unfortunately, due to the restricting force of precedent, many
judges are reluctant, if not unable, to abandon or reformulate established
rules. Consequently, rules often remain active long after the policies to which
they initially gave effect have changed or been reversed. Thus it is axiomatic
that, if a rule of policy is to flourish and to retain its utility, it must be con-
stantly adapted to demands of the contemporary milieu.
The rule governing the admissibility of confessions is "a rule of policy" 6
and has evolved over a period of two hundred years; 7 "it is a judge-made rule
and does not depend on any legislative foundation." As such, it exhibits the
full range of strengths and weaknesses associated with the common law and
judicial rule-making. The recent case of Horvath v. The Queen9 illustrates
this process. The three judgments delivered by the Supreme Court of Canada
display the variety of approaches taken to the interpretation of the rule ex-
cluding confessions and provide an excellent vehicle for analyzing the devel-
opment of that exclusionary rule. It is beyond the scope of this comment to
present a critical account of the theoretical framework and objectives of the
system of evidentiary rules within which this exclusionary rule functions.' 0
However, the comment is intended to introduce and to criticize the Anglo-
Canadian law on the admissibility of confessions, using the Horvath decision
to focus on contentious issues and to highlight the irrationality and inconsist-
ency of the existing rule.

5Holmes, The Common Law (Boston: Little, Brown & Co., 1881) at 35.
o Ibrahim v. The King, [1914] A.C. 599 at 611, (1914-15] All E.R. Rep. 874 at 878,
24 Cox C.C. 174 at 181-82 per Lord Sumner (P.C.).
7 Confessions have always posed problems for the courts. The modern approach to
the admissibility of confessions was first proposed by Mansfield C.J. in R. v. Rudd
(1775), 1 Leach Cr. C. 135 at 138, 168 E.R. 160 at 161 (K.B.): "the instance has
frequently happened, of persons having made confessions under threats or promises:
the consequence as frequently has been, that such examinations and confessions have
not been made use of against them on their trials." In the formative stages of the com-
mon law, there appears to have been no restriction upon the reception of confessions,
whether induced by threats, promises or even by torture. The term "confession" referred
to the conclusive quality of the evidence rather than to its admissibility. A confession
was viewed as a plea of guilty with the consequence that further evidence was not
necessary to determine the guilt of the accused. For a discussion of the early history of
the reception of confessions, see Wigmore, Evidence in Trials at Common Law, Vol.
3 (4th ed. Boston: Little, Brown & Co., 1970) at 291-98; and Lowell, Judicial Use of
Torture (1897), 11 Harv. L. Rev. 220.
8 Pichi v. The Queen, [1971] S.C.R. 23 at 36-37, 11 D.L.R. (3d) 700 at 710, [1970]
4 C.C.C. 27 at 37 per Hall J.
010[1979] 2 S.C.R. 376, 93 D.L.R. (3d) 1, 44 C.C.C. (2d) 385.
In a later and more comprehensive paper, the authors hope to provide a thorough
and searching analysis of the doctrine relating to confessions as part of an overall
scheme of the rules of evidence and to explore the possibilities for reform in this area.
 OSGOODE HALL LAW JOURNAL [VOL. 18, No. I

II. THE DEVELOPMENT OF THE DOCTRINE

The evolution of the exclusionary rule relating to confessions is divisible
into two distinct phases." The first and formative stage is characterized by
the willingness of judges to respond to the changing pattern and tempo of
prevailing attitudes and concerns. Within this period, individual cases can
only be interpreted validly from an historical perspective. This phase cul-
minates in the crystallization of an exclusive rule, the classic formulation of
12
which is found in the judgment of Lord Sumner in Ibrahim v. The King.
The second and applicative stage consists of a line of cases in which the
courts have grappled with the precise ambit of the Ibrahim rule and strained
to apply it to the increasingly sophisticated and innovative methods and tac-
tics employed in the detection of crime and the interrogation of suspects. As
Wigmore has observed, "from [1914] on, the history of the doctrine is merely
a matter of the narrowness or broadness of the exclusionary rule."' 8 In short,
the courts have treated the rule with a deference that is more suited to legis-
lative pronouncements and, in the process, have hindered the evolution of the
common law.

The first clear and explicit judicial airing of the modern statement of the
rule and its rationale was delivered in 1783 in R. v. Warwickshall,14 where
Nares J. stated:
Confessions are received in evidence, or rejected as inadmissible, under a con-
sideration whether they are or are not [e]ntitled to credit. A free and voluntary
confession is deserving of the highest credit because it is presumed to flow from
the strongest sense of guilt, and therefore it is admissible as proof of the crime
to which it refers; but a confession forced from the mind by the flattery of hope,
or by the torture of fear, comes in so questionable a shape when it is to be con-
sidered as the evidence of guilt, that no credit ought to be given to it; and there-
fore it is rejected.15

The rationale was clearly testimonial untrustworthiness. Confessions would

be excluded if they had been extracted by methods resulting in statements
that were unreliable as affirmations of guilt. At this point, history and prin-
ciple merged and the law was "perfectly rational."'1 However, during the first
half of the nineteenth century, the courts were prepared to look beyond the
exclusive notion of testimonial untrustworthiness and to incorporate a more
abstract and ill-defined notion of fairness to the accused. Partly to alleviate

11 Although the evolution of the rule itself may be viewed in this way, it is arguable
that the rationale for the rule is not amenable to such an analysis. Throughout the de-
velopment of the doctrine, the notion of trustworthiness has held a central position; see
text accompanying notes 121-24, infra.
12 Supra note 6, at 599 (A.C.), 874 (All E.R. Rep.), 174 (Cox C.C.).
18 Wigmore, supra note 7, at 297. It should be noted that Wigmore was of the
opinion that this development had, in fact, commenced in 1783.
'4 (1783), 1 Leach Cr. C. 298, 168 E.R. 234.
15 Id. at 299-300 (Leach Cr. C.), 234-35 (E.R.).
16 Wigmore, supra note 7, at 297.
19801 Confessions Rule

the harshness of the existing rules of criminal procedure 17 and partly to com-
pensate for the poor social conditions of the period,' 8 confessions were looked
upon as a most suspicious form of evidence 19 and were frequently excluded
upon proof of the most trivial inducements.2 0 Although this trend benefited
accused individuals, the rash of isolated rulings stunted the growth of a sound
philosophical foundation for the admissibility of confessions. At the expense
of rational development, principle was diluted by the ephemeral dictates of
social and historical expediency.
The decision of the English Court of Criminal Appeal in R. v. Baldry2l
in 1852 put a check upon this attitude of "liberalism run wild.1 22 Indeed,

17 There was a vast number of capital crimes for petty property offences and the
accused was not permitted to give evidence on his own behalf or to have counsel defend
him. Also, there was no right of appeal in criminal cases. As Wigmore observes: "In
view of the apparent unfairness of a system which practically told the accused person:
'You cannot be trusted to speak here or elsewhere in your own behalf, but we shall use
against you whatever you may have said,' it was entirely natural that the judges should
employ the only makeweight which existed for mitigating this unfairness and restoring
the balance, namely, the doctrine of confessions;" see Wigmore, supra note 7, at 300.
18
This point is well brought out by Stephen:
[I]t must be remembered that most persons accused of crime are poor, stupid and
helpless.... An ignorant, uneducated man has the greatest possible difficulty in
collecting his ideas, and seeing the bearing of the facts alleged. He is utterly un-
accustomed to sustained attention or systematic thought, and it often appears ...
if the proceedings on a trial, which to an experienced person appear plain and
simple, must pass before the eyes and mind of the prisoner like a dream which
he cannot grasp.
Stephen, A History of the Criminal Law of England, Vol. 1 (London: Macmillan & Co.,
1883) at 442. See also the observations of Lord Reid in Comm'rs of Customs & Excise
v. Harz, [1967] 1 A.C. 760 at 820, [1967] 1 All E.R. 177 at 184, [1967] 2 W.L.R. 297
at 306, 51 Cr. App. R. 123 at 158 (H.L.).
Although social conditions have improved considerably since the early nineteenth
century, there still exists today a similar disparity between the faculties of the average
criminal and the resources available to the police force. As Field noted recently on the
accused's right to silence: "my worry is over the people actually being charged today
...the ignorant, suspicious, frightened, highly suggestible people who are simply not
able to face up to police questioning;" The Right to Silence (1970), 11 J.S.P.T.L. 76
at 79.
19 The words of Hotham B. in R. v. Thompson (1783), 1 Leach Cr. C. 325, 168
E.R. 248, are indicative of the prevailing judicial attitude: "It is almost impossible to be
too careful upon this subject.... I must acknowledge that I do not like confessions
unless they appear to have been made voluntarily and without any inducement. Too
great a charity cannot be preserved on this subject. ...
20
See, inter alia, R. v. Thompson,id.; R.v. Paratt (1831), 4 C. & P. 570, 172 E.R.
829; R. v. Richards (1832), 5 C. & P. 318, 172 E.R. 993; R. v. Hearn (1841), Car. &
M. 109, 174 E.R. 431; R. v. Cass (1784), Leach 293n, 168 E.R. 249; R. v. Jones
(1809), Russ. & Ry. 152, 168 E.R. 733; R. v. Partridge (1836), 7 C. & P. 551, 173
E.R. 243; R. v. Hewett (1842), Car. & M. 534, 174 E.R. 623; R. v. Boswell (1842),
Car. & M. 584, 174 E.R. 645; R. v. Kingston (1830), 4 C. & P. 387, 172 E.R. 752t
R. v.Enoch (1833), 5 C. & P.539, 172 E.R. 1089; R. v.Simpson (1834), 1 Mood.
C.C. 410, 168 E.R. 1323; R. v.Shepherd (1836), 7 C. & P. 579, 173 E.R. 255; R. v.
Laugher (1846), 2 Car. & K. 225, 175 E.R. 93; R. v. Garner (1848), 1 Den. 329, 169
E.R. 267; and R.v. Warringham (1851), 2 Den. 447, 169 E.R. 575.
21 (1852), 2 Den.430, 169 E.R.568.
22
Baker, The Hearsay Rule (London: Sir Isaac Pitman & Sons, 1950) at 54.
 OSGOODE HALL LAW JOURNAL [VOL. 18, NO. I
Erle J.was of the firm opinion that "in many cases where confessions have
been excluded, justice and common sense have been sacrificed, not at the
shrine of mercy, but at the shrine of guilt."' 23 In that case, a murder suspect
had confessed immediately after being cautioned. In a forceful judgment,
Baron Parke left no doubts that he thought that there had "been too much
tenderness towards prisoners" 24 and held that the confession had been rightly
admitted into evidence. In reacting against the previous coordinated approach
to the problem, the Court took a realistic stance and emphasized the need to
balance the right of an accused person to a fair and unprejudiced trial against
the communal interest in securing the conviction of the guilty. Furthermore,
the Court redirected attention to the neglected problem of articulating the
actual rationale upon which the rule was based. Although they were stated in
rudimentary terms, most of the rationales offered in subsequent cases as the
basis for the rule can be identified in the arguments and judgments in Baldry.
While counsel for the accused argued that the law distrusts confessions be-
cause "it suspects that it does not get at the truth as to the way in which they
are obtained," - 6 Lord Campbell C.J. preferred to hold that it was not a ques-
tion of trustworthiness, but "rather that it would be dangerous to receive such
evidence and that for the due administration of justice it is better that it
should be withdrawn from the consideration of the jury.120 Although the re-
liability of the statement remains a critical factor in determining its admissi-
bility, Baldry takes the first steps in moving away from trustworthiness as the
sole criterion of admissibility and seeks to introduce a composite rationale.
27
The move towards a more definite rule was consolidated in R. v. Fennel.
Voluntariness was accepted as the cornerstone of the rule; "a confession, in
order to be admissible, must be free and voluntary; that is, must not be ex-
tracted by any sort of threats or violence, nor obtained by any direct or
implied promises, however slight, nor by the exertion of any improper in-
fluence." 28 This statement was expressly affirmed by Mr. Justice Cave in R.
v. Thompson.29 Whereas the judgment in Fennell gave no indication of the
purpose alleged to be behind the rule, Cave J.in Thompson takes a solid
stance:
I always suspect these confessions which are supposed to be the offspring of peni-

23
Supra note 21, at 446 (Den.), 574 (E.R.).
24 Id. at 445 (Den.), 574 (E.R.).
25 Id. at 434 (Den.), 570 (E.R.). To support this view, Mr. Mills referred to one
of Blackstone's typically apothegmatic statements: "even in cases of felony, at the com-
mon law they are the weakest and most suspicious of all testimony; ever liable to be
obtained by artifice, false hopes, promises of favour, or menaces; seldom remembered
accurately, or reported with due precision; and incapable in their nature, of being dis-
proved by other negative evidence;" 4 B Comm. 357.
26 Id. at 432 (Den.), 569 (E.R.).
27 (1881), 7 Q.B.D. 147, 44 L.T. 687, 14 Cox C.C. 607.
281d. at 151 (Q.B.D.), 688 (L.T.), 609 (Cox C.C.).
29 [1893] 2 Q.B. 12, [1891-94] All E.R. Rep. 376, 69 L.T. 22, 17 Cox C.C. 641.
This case is also authority for the proposition that the burden of proof is on the
prosecution to prove affirmatively, beyond reasonable doubt, that the confession
was obtained voluntarily.
1980] Confessions Rule

tence and remorse, and which nevertheless are repudiated by the prisoner at the
trial. It is remarkable that it is of very rare occurrence for evidence of a con-
fession to be given when the proof of the prisoner's guilt is otherwise clear and
satisfactory; but when it is not clear and satisfactory, the prisoner is not infre-
quently alleged to have been seized with the desire born of penitence and remorse
to supplement it with30a confession;--a desire which vanishes as soon as he appears
in a court of justice.
"Voluntariness" became the touchstone of the admissibility of confessions.
Moreover, "voluntariness" would not be given its ordinary meaning of the
exercise of will or free choice. It was to acquire a special and closely circum-
scribed legal meaning.
The first phase of the evolution of the rule ends and the second phase
begins with the seminal decision of the Judicial Committee of the Privy
Council in Ibrahim v. The King.3 ' Although this case gave rise to the classic
formulation of the rule that still dominates the law today, modem commen-
tators and judges treat the case in a cursory manner,3 2 thus making the egre-
gious error of isolating the rule from its historical context and the particular
facts of the case. Indeed, without oversimplifying, it is arguable that the con-
fusing and lamentable state of affairs that has arisen can be attributed to the
longstanding failure to regard the Ibrahim rule as a product of the common
law process that has the same degree of impermanence and flexibility as
similar rules of judicial origin.
The facts in Ibrahim are not typical. A soldier was charged and con-
victed of the murder of an officer of his regiment in Canton. The Supreme
Court of Hong Kong sentenced him to death. He appealed to the Privy Coun-
cil on jurisdictional grounds but he also questioned the admissibility of cer-
tain statements made by him to his commanding officer ten or fifteen minutes
after the murder had been committed.3 3 The appellant argued that his con-
fession was inadmissible because it was involuntary and had been obtained
by pressure of authority and fear of consequences; it was the answer of a man
in custody to a question put by a person in authority. In delivering the opin-
ion of the Privy Council, Lord Sumner made the hallowed statement:
It has long been established as a positive rule of English Criminal law that no
statement by an accused is admissible in evidence against him unless it is shown
by the prosecution to have been a voluntary statement, in the sense that it has not
been obtained from him either by fear of prejudice or hope of advantage exer- 34
cised or held out by a person in authority. The principle is as old as Lord Hale.
[Emphasis added.]

30 Id. at 18 (Q.B.), 380 (All E.R.), 25 (L.T.), 647 (Cox C.C.).

31 Supra note 6, at 599 (A.C.), 874 (All E.R. Rep.), 174 (Cox C.C.).
32 A recent and refreshing exception to this practice can be found in the dissenting
judgment of Dubin J.A. in R. v. Rothman (1979), 42 C.C.C. (2d) 377 at 385 (Ont.
C.A.).
33 While in custody, the officer asked the accused: "Why have you done such a
senseless act?" The accused replied: "Some three or four days he has been abusing me;
without a doubt I killed him." Supra note 6, at 608 (A.C.), 876-77 (All E.R.), 179-80
(Cox C.C.) per Lord Sumner.
34Id. at 609-10 (A.C.), 877 (All E.R. Rep.), 180-81 (Cox C.C.). The reference
to Lord Hale is questionable. As Wigmore notes, the principle, in fact, dates from 1775
with Rudd, supra note 7, at 297.
 OSGOODE HALL LAW JOURNAL (VOL. 18, NO. I

Apart from confirming the admissibility of the accused's statements, Lord

Sumner's formulation of the -rule and his opittion as a whole are indicative
of the confusion surrounding the perceived rationale of the rule and the re-
liance on such a restricted notion of "voluntariness."
In discussing the appellant's claim that the statements that he had made
were inadmissible, Lord Sumner noted that such a claim was of very recent
origin, resulting from the establishment of a modem police force. Also, in
purely logical terms he insisted that such objections "all go to the weight and
not to the admissibility of the evidence."35 Relying on Warwickshall 3a and
Baldry,37 Lord Sumner emphasized that the exclusionary rule was one of
policy, but he did not proceed to give any express indication of what that
policy was. However, in referring to the early nineteenth century cases, he did
observe that "when judges excluded such evidence, it was rather explained by
their observations on the duties of policemen than justified by their reliance
on rules of law." 38 Nevertheless, Lord Sumner made it clear that the admis-
sibility of a confession was a matter of judicial discretion:
The matter is one for the judge's discretion, depending largely on his view of the
impropriety of the questioner's conduct and the general circumstances of the
case.. .. Having regard to the particular position in which their Lordships stand
to criminal proceedings, they do not propose to intimate what they think the rule
of English law ought to be, much as it is to be desired that the point should be
settled by authority, so far as a general rule can be laid down Ihere circumstances
must so greatly vary.0 9 [Emphasis added.]
Since 1914, the test of "voluntariness" has become entrenched within
the common law and the courts have laboured under the difficulty of adapting
this fixed rule of policy to the manifold and changing circumstances of mod-
em society. Although Anglo-Canadian courts have repeatedly followed and
applied the Ibrahim rule, it is virtually impossible to identify or trace any
general pattern or direction in the plethora of pronouncements on the sub-
stance and function of that rule. Freedman has written that "there are few
aspects of law which reveal so sharp a conflict in fundamental thinking and
basic philosophy as the problem of the admissibility of confessions in a
criminal case." 4 The growth of such a large and conflicting body of case law
can be largely explained by the efforts of the judges to apply the rule without
regard to its perceived rationale and by the absence of a clearly articulated
statement of that rationale. The situation is exacerbated by the fact that cer-

35 Id. at 610 (A.C.), 878 (All E.R. Rep), 181 (Cox C.C.). He actually continued
and stated that: "in an action of tort, evidence of this kind could not be excluded when
tendered against a tortfeasor, though a jury may well be told as prudent men to think
little of it." This can be compared with the observations of Parke B. in Baldry, supra
note 21, at 445 (Den.), 574 (E.R.), where he states that, "whether it would not have
been better to have allowed the whole to go to the jury, it is now too late to inquire."
3
6Supra note 14.
37
Supra note 21.
38Supra note 6, at 611 (A.C.), 878 (All E.R. Rep.), 182 (Cox C.C.).
391d. at 614 (A.C.), 880 (All E.R. Rep.), 184 (Cox C.C.).
40
Freedman, "Admissions and Confessions," in Studies in Canadian Criminal Evi-
dence, ed. Carter and Salhany (Toronto: Butterworth & Co., 1972) at 95.
1980] Confessions Rule

tain judges maintain that relating policies to rules falls outside their judicial
function. For instance, MacFarlane J.A. has taken the view that "it is the rule
so formulated which must guide the courts rather than an attempt to apply
what may be thought to be the reason for the rule."' 41 In even starker terms,
Lord Salmon has stated:
The question as to whether the rule ...is based on "the reliability principle" or
"the disciplinary principle" ... is possibly an important philosophical question
but ... it is only of academic interest. It does not touch the effect or undoubted
validity of the rule.42 [Emphasis added.]
Such sentiments are to be deplored. They not only represent a myopic view
of the functioning of the common law, but they are also mistaken about the
practical impact of the rationale behind the rule.
In the sixty-five years that have elapsed since Ibrahim, the English
courts 43 have been engaged primarily in an objective, external and technical
inquiry into the nature of the inducement held out.44 The exclusionary ele-
ment has centred around the probable effect of the inducement rather than
upon the actual effect of a particular inducement on a particular accused.
Any question of causation has been ignored. However, during the 1960'S, 45

41R. v. Towler (1969), 65 W.W.R. 549 at 550, [1969] 2 C.C.C. 335 at 337
(B.C.C.A.).
42 D.P.P.v. Ping Litt, [1976] A.C. 574 at 607, [1975] 3 All E.R. 175 at 188.
43 For an account of the evolution of the rule in England since 1914, see Cross,
Evidence (4th ed. London: Butterworths, 1974) at 482; Phipson on Evidence, ed. Buz-
zard (London: Sweet & Maxwell, 1976) at 337; Heydon, Cases and Materials on Evi-
dence (London: Butterworths, 1975) at 168; Nokes, An Introduction to Evidence (Lon-
don: Sweet & Maxwell, 1967) at 298; and Archbold: Pleading, Evidence and Practice
in Criminal Cases, ed. Mitchell (39th ed. London: Sweet & Maxwell, 1976) at 752.
44 For instance, see the following cases where a so-called "inducement" led to the
exclusion of a confessory statement: R. v. Northam (1967), 52 Cr. App. R. 97, 111
Sol. J. 965 (C.A.) (affirmative answer to question from housebreaking suspect as to
whether a similar offence could be taken into account held to be an inducement); R. v.
Zavekas, [1970] 1 All E.R. 413, [1970] 1 W.L.R. 516, 114 Sol. J.31 (C.A.) (affirmative
answer to the question "If I confess, will I get bail?" held to constitute an inducement);
R. v. Smith, [1959] 2 Q.B. 35, [1959] 2 All E.R. 193 (soldiers paraded after stabbing
incident with no dismissal until culprit found held to invalidate a subsequent confes-
sion); R. v. Cleary (1963), 48 Cr. App. R. 116, 108 Sol. 3. 77 (C.C.A.) (words used
by father to son in presence of police officer held to constitute an inducement); R. v.
Richards, [1967] 1 All E.R. 829, [1967] 1 W.L.R. 653, 51 Cr. App. R. 266, 111 Sol. J.
254 (C.A.) (police officer told suspect that it would be better for him to tell what hap-
pened); Sparks v. The Queen, [1964] A.C. 964, [1964] 1 All E.R. 727, [1964] W.L.R.
566, 108 Sol. 1. 154 (P.C.) (suggestion by Bermudan police that a statement might lead
to a military rather than a public trial); R. v. Moore (1972), 56 Cr. App. R. 373, [1972]
Crim. L.R. 372 (C.A.) (exhortation by father to confess); and R. v. Williams (1968),
52 Cr. App. R. 439 (Cent. Cr. Ct.).
45 The seed of the "oppression" concept can be traced back to the words of Lord
Coleridge C.J. in Fennell, supra note 27, at 151 (Q.B.D.) [not reported in L.T. or Cox
C.C.], where he said that, in addition to threats, promises or violence, a confession would
be excluded if obtained by "the exertion of any improper influence." The first modern
statement of the concept can be found in the judgment of Lord Parker C.J. in Callis v.
Gunn, [1964] 1 Q.B. 495 at 501, [1963] 3 All E.R. 677 at 680, 48 Cr. App. R. 36 at 39,
where he states that it is:
A fundamental principle of law that no answer to a question and no statement is
 OSGOODE HALL LAW JOURNAL [VOL. 18, NO. I

the courts began to inquire into the actual circumstances, including the state
of mind of the accused, in which the confession was made. 40 The concept of
"oppression" was expressly incorporated into the law by the House of Lords
in Commissioner of Customs and Excise v. Harz.47 However, the Court did
not deal with the purposive basis for such an addition to the exclusionary
rule. Although Lord Reid mentioned that the exclusionary rule rested on the
accused's privilege against making self-incriminating statements, 48 there was
no express reference to the need to control police conduct. Finally, in the
recent case of D.P.P. v. Ping Lin,49 the House of Lords made it clear that
the Ibrahim rule was an exclusive one and "ought not to be extended or
whittled down." 50 The test is one of fact and the trial judge should apply the
Ibrahim rule in a common sense manner to all of the facts of the case "in-
stead of a search being made through the reported cases in order to find a
decision on roughly similar facts." 51
52
The Canadian experience follows much the same unsatisfactory pattern,
but with greater judicial confusion and misunderstanding. Furthermore, the
Canadian situation is tainted by the fact that the Supreme Court has been
presented with numerous opportunities to sweep away the confusion and to
arrive at a settled statement of the law. Moreover, the Canadian courts have
been extremely reticent about articulating or adumbrating the policy that un-
derlies and supports the rule.53 Any development of the confessions doctrine

admissible unless it is shown by the prosecution not to have been obtained in an

oppressive manner and to have been voluntary in the sense that it has' not been
obtained by threats or inducements.
46 See, especially, R. v. Priestley (1966), 50 Cr. App. R. 183 (C.C.A.); and R. v.
Prager,
47
[1971] 1 All E.R. 1114, [1972] 1 W.L.R. 260, 56 Cr. App. R. 151 (C.A.).
Supra note 18. The definition adopted was that contained in the Judges' Rules,
1964, Principle E.: "It is a fundamental condition of the admissibility in evidence against
any person, equally of any oral answer given by that person to a question put by a
police officer and of any statement made by that person, that it shall have been volun-
tary in the sense that it has not been obtained from him by fear of prejudice or hope
of advantage exercised or held out by a person in authority, or by oppression."
48Id. at 820 (A.C.), 184 (All E.R.), 306 (W.L.R.), 158 (Cr. App. R.).
49
Supra note 42.
50 Id. at 600 (A.C.), 182 (All E.R.) per Lord Hailsham.
51Id. at 604 (A.C.), 186 (All E.R.) per Lord Kilbrandon.
52 For a survey of the development of the doctrine of confessions in Canada, see
Joy, On the Admissibility of Confessions (Toronto: Carswell Co. Ltd., 1974); Freed-
man, supra note 40, at 95; McWilliams, Canadian CriminalEvidence (Toronto: Canada
Law Book Co., 1974) at 236; Macdonald and Hart, The Admissibility of Confessions
in Criminal Cases (1947), 25 Can. B. Rev. 823; Borins, Confessions (1958-59), 1 Crim.
L.Q. 140; Harradence, Truth or Consequences (1962), 2 Alta. L. Rev. 5; Gooderson,
The Interrogation of Suspects (1970), 20 Can. B. Rev. 270; Graburn, Truth as the
Criterion of the Admissibility of Confessions in Canada (1977), 41 Sask. L. Rev. 21;
Del Buono, Voluntariness and Confessions: A Question of Fact or Question of Law
(1977), 19 Crim. L.Q. 100; Ratushny, Unravelling Confessions (1971), 13 Crim. L.Q.
453; Bushnell, The Confession Rule: Its Rationale (1973), 12 W. Ont. L. Rev. 47;
Ratushny, Statement of an Accused: Some Loose Strands (1972), 14 Crim. L.Q. 306
and 405; and Kaufman, Recent Trends in Confessions (1978), 13 U.B.C. L. Rev. 81.
53
It is extremely difficult to discover any judgment in which the question of the
underlying rationale of the Ibrahim rule has been fully canvassed and, as Dubin J.A.
recently noted, "the philosophical basis for the rule excluding confessions ... has not
been clearly resolved;" R. v. Rothman, supra note 32, at 385.
1980] Confessions Rule

has been marked by sporadic bursts of activity followed by periods of relative

calm. During the bouts of judicial intervention, the courts have often backed
themselves into intellectual cul-de-sacs and then had to engage in a series of
suspect manoeuvres to extricate themselves. 4 As Professor Ratushny has ob-
served, "no sooner is one problem clarified than another arises. What appears
to have settled is often 'up-for-grabs' again." 55
From the myriad of cases since 1914, it is possible to identify two
separate, yet related approaches to the concept of "voluntariness." 56 Although
the Ibrahim rule has received widespread judicial endorsement, the courts
have fluctuated between a wide and a narrow interpretation of the rule. Some
courts have construed the rule restrictively. They have endowed the concept
of "voluntariness" with a limited legal meaning and have taken the reference
to "fear of prejudice" and "hope of advantage" as amounting to an exhaus-
tive definition. 57 Other courts have taken a more expansive and less inhibited
approach. They have taken such considerations to be merely illustrative of
"voluntariness" and have preferred to undertake a general review and assess-
ment of the surrounding circumstances. 58 This broad approach represents an
attempt to treat the admissibility of confessions within the true spirit and
intendment of Lord Sumner's opinion and not to become captive to the lin-
guistic shackles of the Ibrahim rule. However, despite this aversion to a
mechanistic and unthinking approach to confessions, the great weight of
authority supports an uncluttered and rigorous interpretation and application
of the Ibrahim rule.

54
An early example of this can be found in a series of cases concerning the effect
of the police failing to administer a caution; see Gach v. The King, [1943] S.C.R. 250,
[1943] 2 D.L.R. 417, 79 C.C.C. 221; R. v. Scory, [1945] 2 D.L.R. 248, [1945] 1 W.W.R.
15, 83 C.C.C. 306 (Sask. C.A.); and Boudreau v. The King, [1949] S.C.R. 262, [1949]
3 D.L.R. 81, 94 C.C.C. 1.
55
Ratushny, Self-Incrimination in the CanadianCriminal Process (Toronto: Cars-
well Co., 1979) at 99.
GOSee, generally, Del Buono, supra note 52.
57
See, inter alia, R. v. Rasmussen, [1935] 1 D.L.R. 97, 9 M.P.R. 41, 62 C.C.C. 217
(N.B.S.C. App. Div.); Boudreau v. The King, supra note 54, at 268 (S.C.R.), 86
(D.L.R.), 7 (C.C.C.) per Rand J., and at 263 (S.C.R.), 83 (D.L.R.), 3 (C.C.C.) per
Taschereau J.; R. v. Murakami, [1951] S.C.R. 801 at 803, [1951] 4 D.L.R. 370 at 371,
100 C.C.C. 177 at 178 per Rand J., and at 815 (S.C.R.), 382 (D.L.R.), 191 (C.C.C.)
per Cartwright J.; R. v. Fitton, [1956] S.C.R. 958 at 962, 6 D.L.R. (2d) 529 at 532,
116 C.C.C. 1 at 5 per Rand J. [rev'g [1956] O.R. 696 (Ont. C.A.)]; R. v. Albrecht
(1966), 52 M.P.R. 119 at 203, 1 C.C.C. 281 at 288 per Limerick 1. (N.B. App. Div.);
De Clercq v. The Queen, [1968] S.C.R. 902 at 919, 70 D.L.R. (2d) 530 at 544, [1969]
1 C.C.C. 197 at 214 per Hall J. [aff'g [1966] 1 O.R. 674 (Ont. C.A.)]; R. v. Spencer
(1973), 6 N.S.R. (2d) 555 at 559, 16 C.C.C. (2d) 29 at 33 per MacKeigan J.A. (C.A.);
and R. v. Robertson (1975), 29 C.R.N.S. 141 at 176, 21 C.C.C. (2d) 385 at 417 per
Martin J.A. (N.S.C.A.).
58
See, inter alia, R. v. Anderson (1942), 58 B.C.R. 88 at 92, [1942] 3 D.L.R. 179
at 182, [1942] 2 W.W.R. 302 at 306, 77 C.C.C. 295 at 298 per Sloan J. (B.C.C.A.);
R. v. Washer, [1948] O.W.N. 393 at 393-94, 92 C.C.C. 218 at 219 per McRuer C.J.H.C.
(Ont. H.C.); R. v. Dreher (1952), 5 W.W.R. 337 at 349, 103 C.C.C. 321 at 335 per
MacDonald J. (Alta. S.C. App. Div.); R. v. Boisioly (1955), 115 C.C.C. 264 at 267 per
St. Jacques J. and at 271 per Bissonette J. (Que. Q.B. App. Side); R. v. Starr (1960),
31 W.W.R. 393, 128 C.C.C. 212 (Man. Co. Crim. Ct.); R. v. Gillis, [1966] 2 C.C.C.
 OSGOODE HALL LAW JOURNAL (VOL. 18, NO. I
Behind such a strict interpretation of the Ibrahim rule lies the desire of
the courts to interfere as little as possible with police activities and an unwill-
ingness to utilize the exclusionary rule as a disciplinary device. 9 In short,
the Canadian courts have been concerned primarily with the reliability of the
confession rather than with the circumstances in which it was made. This
attitude is seen most clearly in the decision of the Supreme Court of Canada
in R. v. Wray.60 The Court held that that part of an inadmissible confession
confirmed by the discovery of subsequent facts is admissible. 1 Moreover,
the Court also held that the trial judge does not have a discretion to exclude
evidence that is otherwise admissible, on the ground that it is unfair to the
accused or brings the administration of justice into disrepute. 2 Consequently,
the Canadian courts have allowed the scales to tip in favour of the rigorous
and unhampered pursuit of the guilty.
III. A STRANGE AND PUZZLING STORY
It would be an exaggeration to pretend that three cases amount to a
trend, but a trilogy of recent Supreme Court of Canada decisions suggests
that there is a revival of concern about the circumstances in which confes-
sions are obtained and increasing reluctance to look solely towards the trust-
worthiness of the statement. In Erven v. The Queen, 3 it was decided that
holding a voir dire was necessary in almost every case. 4 In the leading judg-

219 at 222 per Lord J. (B.C.C.A.); and R. v. McGuire, [1970] 1 O.R. 647 at 655, 2
C.C.C. (2d) 143 at 152 per Galligan J. (Ont. H.C.).
59This unwillingness is well brought out in a statement by the Quebec Court of
Appeal: "It would be a lamentable thing, if the police were not allowed to make in-
quiries, and if statements made by prisoners were excluded because of a shadowy notion
that if the prisoners were left to themselves they would not have made them": R. v.
Prosko (1921), 33 Que. K.B. 497 at 503, 40 C.C.C. 109 at 113-14.
60 R. v. Wray, [1971] S.C.R. 272, 11 D.L.R. (3d) 673, [1970] 4 C.C.C. 1, [rev'g
[1970] 2 O.R. 3, (Ont. C.A.)]. For a comprehensive examination of the far-reaching
implications of the case, see Roberts, The Legacy of Regina v. Wray (1972), 50 Can.
B. Rev. 19; Sheppard, Restricting the Discretion to Exclude Evidence (1972), 14 Crim.
L.Q. 334; and Weinberg, The Judicial Discretion to Exclude Relevant Evidence (1975),
21 McGill L.J. 1.
61 In arriving at this decision, the Court relied upon the dicta of McRuer C.J.H.C.
in R. v. St. Lawrence, [1949] O.R. 215 at 228, 93 C.C.C. 376 at 391 (Ont. H.C.), and
Mr. Justice Judson stated that "the theory for the rejection of confessions is that if
they are obtained under certain conditions, they are untrustworthy;" R. v. Wray, id. at
296 (S.C.R.), 692 (D.L.R.), 20 (C.C.C.). In his dissenting judgment, Martland J. pre-
ferred solely on the accused's privilege not to answer self-incriminating questions; id.
at 279 (S.C.R.), 679 (D.L.R.), 6 (C.C.C.).
62
In a very recently decided case, a majority of the House of Lords held that,
although the trial judge has a discretion to exclude evidence when its prejudicial effect
outweighs its probative value, the trial judge has no discretion to exclude evidence
simply because it was obtained by improper or unfair means: R. v. Sang, [1979] 2 All
E.R. 1222, [1979] 3 W.L.R. 263.
3
6 Erven v. The Queen, [1979] 1 S.C.R. 926, 30 N.S.R. (2d) 89, 44 C.C.C. (2d) 76.
64 In Erven, the issue was whether a voir dire is a requirement in all cases in which
a statement made by an accused person is tendered by the prosecution. There were three
judgments delivered: one by Dickson J., with Laskin C.J.C., Spence and Estey JJ. con-
curring, in which it was held that a voir dire is a requirement in all cases; a second judg-
ment by Pratte J., in which Beetz J. concurred, which held that in the particular case a
voir dire should have been held; and finally, the dissenting judgment of Mr. Justico
1980] Confessions Rule

ment, Dickson J. stressed the need to safeguard the rights of the accused and
maintained that "only in this way can fairness to the accused be assured." 65
In Ward v. The Queen,16 the Court unanimously held that the refusal by the
trial judge to admit statements by the accused was a question of mixed fact and
law, which precluded the Crown from appealing under section 605(1) (a) of
the Criminal Code. Dismissing the appeal on technical grounds, Spence J.
gave a broad interpretation to the Ibrahim rule and took the view that there
should be "investigation of whether the statements were freely and voluntarily
made even if no hope of advantage or fear of prejudice could be found in
consideration of the mental condition of the accused at the time he made the
statements. 6' 7 This re-focusing of the inquiry to be conducted in determining
the admissibility of confessions was given further confirmation in the final
case of the trilogy, Horvath v. The Queen.68 However, the Court was far from
unanimous in both its decision and the reasoning adopted. With respect to
the doctrine of confessions, the judgments are particularly revealing and span
the whole spectrum of approaches to the problem. Consequently, the decision
warrants a full and critical analysis.
The facts of the case are complex and merit a detailed examination.
Horvath, a seventeen-year-old youth, was charged with the murder of his
mother who had been found lying on her bed on the late afternoon of June
16th, 1975. Her head had been repeatedly beaten with a blunt instrument.
Within twenty minutes of the arrest, interrogation of the appellant began.
This may be referred to as the "first interview" and was conducted by two
RCMP officers. One officer, then the other, questioned the appellant in a rapid
and furious manner. The session, throughout which the appellant denied
having killed his mother, lasted for nearly three hours, without intermission,
and continued into the early morning of June 17th. The trial judge found
that this interview had taken place in a hostile atmosphere and excluded the
statement that had been given. There was no appeal by the Crown against
this finding.
After the interview the appellant was left in his cell, in a comfortable
condition, until the following morning when, after a visit to his home to
change his clothes, he was taken to the RCMP Headquarters in Vancouver.
Shortly after noon, he was introduced to Staff Sergeant Proke, a polygraph
operator and69 skilled interrogator. Thus began the "strange and rather puz-
zling story."

Ritchie, with whom Martland and Pigeon JJ. concurred, which held that a voir dire
was not a necessity in all cases, including the one with which they were concerned.
This issue has troubled the courts on numerous previous occasions. Indeed, as re-
cently as the case of Powell v. The Queen, [1977] 1 S.C.R. 362, 66 D.L.R. (3d) 443, 9
N.R. 361, 28 C.C.C. (2d) 148, the Court, in a judgment delivered by de Grandpr6 J.,
held that the accused could expressly waive the requirement of a voir dire.
65 Supra note 63, at 943 (S.C.R.), 105 (N.S.R.), 97 (C.C.C.).
66 Ward v. The Queen, [1979] 2 S.C.R. 30, [1979] 2 W.W.R. 193, 44 C.C.C. (2d)
498.
67 Id. at 40 (S.C.R.), 201 (W.W.R.), 506 (C.C.C.).
,8Supra note 9.
69 Id. at 396 (S.C.R.), 17 (D.L.R.), 401 (C.C.C.) per Spence J.
 OSGOODE HALL LAW JOURNAL [VOL. 18, No. I

From shortly after noon until 4:16 p.m., the appellant was interviewed
by Sergeant Proke. The examination was, in the words of the trial judge, "the
most skillful example of police interrogation that has ever come to my atten-
tion in 36 years as a lawyer and a judge. 70° In marked contrast to the hostile
nature of the "first interview," Sergeant Proke employed what can best be
described as a psychological approach. He ingratiated himself with the appel-
lant and gained his confidence, hoping that he would disclose his part in the
events of the previous day. This "second interview" was conducted in a room
equipped with one-way glass, permitting observation of the interrogation
from an adjoining room, and was recorded by means of a listening device.
From the tape-recording of the interview it was possible, in the opinion of
the Court, to divide the session into three distinct phases.
During the first part of the interview, Sergeant Proke questioned Horvath
for about two hours and elicited certain information as to his whereabouts
on the day of the crime, but no reference was made by the appellant to the
death of his mother. He was then left alone for a little under ten minutes.
Proke had gone into the observation room unknown to the appellant, and,
while alone, Horvath swore to avenge his mother's death. This was the first
in a series of three monologues.
Sergeant Proke then returned and resumed his questioning in the same
vein as before. About 3:15 p.m. he left for the observation room again and
the appellant delivered his second soliloquy in which he confessed to having
killed his mother. He claimed to have killed her by hitting her over the head
several times, but only after a request by her to do so. On Sergeant Proke's
return, at about 3:25 p.m., Horvath repeated the confession to him. This oral
declaration was termed the "second statement." The appellant agreed to
repeat what he had just told Sergeant Proke to the officers in charge of the
investigation. On being left alone for a third time, the appellant, in a very
brief monologue, begged his mother's forgiveness for having disclosed the in-
cident and her request for him to kill her. Proke then returned with two other
officers and, between 4:25 p.m. and 5:45 p.m., Horvath repeated his state-
ment to them which resulted in a written signed confession, referred to as
the "third statement."
At trial, on the request of the Crown, a voir dire was held to determine
the admissibility of the "third statement." The appellant gave no evidence on
the voir dire. In addition to the evidence given by the police officers involved,
the Crown called a psychiatrist, Dr. Stephenson. At the trial judge's request,
the psychiatrist listened to the tape recording of the whole of the "second
interview" and prepared a report for the consideration of the Court which
was admitted, by consent, in evidence. Thus, the tale took its "strange and
rather puzzling" course. 71
Dr. Stephenson's evidence was crucial to the outcome of the case. His
thesis was that, by means of his interrogation technique, Sergeant Proke had

7old. at 384 (S.C.R.), 7 (D.L.R.), 391 (C.C.C.) per Martland J., quoting Gould J.
71id. at 396 (S.C.R.), 17 (D.L.R.), 401 (C.C.C.) per Spence J.
1980] Confessions Rule

caused the circumstances surrounding the murder to surface in the appellant's

mind. Dr. Stephenson's central observation was that the Sergeant's voice, in-
tentionally or otherwise, had taken on an hypnotic quality and had placed
Horvath in a light hypnotic state which continued throughout the first two
monologues. Sergeant Proke denied any deliberate attempt to hypnotize
Horvath. The result was that the appellant was in a dreamy state of altered
consciousness, but still capable of relating to his environment and communi-
cating meaningfully. Although Dr. Stephenson believed that Horvath could
not be forced to do or say anything to which he had not already given tacit
consent, he admitted that a person in a light hypnotic trance would be more
susceptible to suggestion than would be a person in a normal state of con-
sciousness, and that the repression of the painful memories in the first
soliloquy had been involuntary. According to Dr. Stephenson, however, the
appellant had wished to unburden himself of those memories and, when these
had been brought out by Sergeant Proke's questioning techniques, their re-
counting was, essentially, a voluntary act, even though the mild hypnotic state
continued until the end of the second soliloquy. Dr. Stephenson's conclusion,
therefore, was that the appellant's answers had been voluntary and that when
he had recounted his mother's death wish and all that had followed he had
been merely telling "the72 truth as he saw it," being in "full and voluntary
control of his faculties."
The issue to be determined by the trial judge, therefore, was whether
the second and third statements made by the appellant were admissible in
evidence. More specifically, the Court had to decide whether a confession be-
came inadmissible due to the accused being under hypnosis immediately prior
to making it. At the trial, Gould J. ruled that the evidence of these state-
ments should be excluded. He found, as a fact, that Sergeant Proke had '73
brought about in the appellant "a state of total emotional disintegration.
However, he did not exclude the evidence on that ground. Instead, he was of
the opinion, regarding the "second statement," that "had Dr. Stephenson not
given the evidence of an hypnotic state, [Gould J.] would have, with some
misgivings, admitted this statement. ... It is the factor of hypnotism which
has tipped the balance against admission in this case. '7 4 The "third state-
ment" was excluded 75because it followed from the second, and was vitiated
on the same ground.
On appeal by the Crown to the British Columbia Court of Appeal, it
was held unanimously that the statements were admissible and that Gould J.

72 See the passages, id. at 383, 398-400, 413-18 (S.C.R.), 6-7, 18-20, 31-35
(D.L.R.), 390, 402-04, 414-19 (C.C.C.).
7S d.at 384 (S.C.R.), 7 (D.L.R.), 391 (C.C.C.) per Martland J., quoting Gould
J.,who was careful to indicate that the phrase was his own and not that of Dr.
Stephenson, the psychiatrist.
74 Id.
75
The law in Canada on the question of whether an improper inducement renders
all subsequent confessions inadmissible is that, before subsequent confessions can be
admitted, it must be demonstrated by clear and positive evidence that the inducement
had ceased to be operative: see R. v. Wishart (1954), 13 W.W.R. 447, 110 C.C.C. 129
(B.C.C.A.); and R. v. Thompson (1974), 26 C.R.N.S. 144 (N.S.C.A.).
 OSGOODE HALL LAW JOURNAL [VOL. 18, NO. I
had erred in refusing to admit them. MacFarlane J.A., delivering the judg-
ment of the Court,76 relied upon the cases of Ibrahim v. The King,77 Boudreau
v. The King,7 8 and R. v. Fitton 9 to support the proposition that the function
of the trial judge is to determine whether the Crown has proved beyond a
reasonable doubt that a statement made by an accused person was voluntary
in the sense that it had not been obtained from him by hope of advantage or
fear of prejudice exercised or held out by a person in authority. The trial
judge had, therefore, applied the wrong test in excluding Horvath's state-
ments. The Court of Appeal took the view that the decision as to the weight
to be attached to such statements was within the exclusive province of the
jury. Accordingly, Gould J. had exceeded the scope of his function and the
appeal was allowed.
I Horvath appealed from this decision to the Supreme Court of
Canada
which, by a majority of four to three, allowed the appeal and restored the
acquittal. Three judgments were delivered in disposing of the appeal and each
one took a very different approach to the Ibrahim rule. In a dissenting judg-
ment, Mr. Justice Martland adopted a traditional stance and gave the Ibrahim
rule a very narrow scope of operation. Mr. Justice Spence disapproved of
such a restrictive interpretation and favoured a broader reading of the rule to
include the notion of "oppression" which he achieved by a redefinition of the
word "voluntary." Finally, Mr. Justice Beetz went a step beyond Spence J.
He looked to the policy behind the rule and attempted to translate that ra-
tionale into contemporary terms, with emphasis on the problem of hypnosis.
Accordingly, each major approach to the Ibrahim rule is represented and all
the basic arguments are canvassed.
Martland J. delivered a dissenting judgment with which Ritchie and
Pigeon JJ. concurred. He took a restrictive position and relied upon the tradi-
tional statement of the exclusionary rule relating to the admissibility of con-
fessions as enunciated by Lord Sumner in Ibrahim.80 Martland J. concluded
that the British Columbia Court of Appeal had correctly stated the law ap-
plicable in Canada in determining the admissibility of statements made by an
accused person to a person in authority. He maintained that Fitton8' decided
that the rule of exclusion was exhaustively defined in Ibrahim8 2 and that there
was neither a necessity nor power within the court to broaden further the
scope of the rule.8 Because the trial judge had found as a fact that there
had been no oppression in obtaining the "second statement," Martland J.
decided that the present case did not provide an appropriate opportunity to
consider the inclusion of the word "oppression"4 and he expressly approved

76
Also present were McLean and Bull JJ.A.
77
Supra note 6.
7
8Supra note 57.
79 Id.
80 Supra note 34.
81
Supra note 57.
82
Supra note 6.
83
Supra note 9, at 391 (S.C.R.), 12-13 (D.L.R.), 396 (C.C.C.).
84
See supranote 45.
19801 Confessions Rule

the decision of the English Court of Appeal (Criminal) in R. v. Isequilla.8

In that case, it had been held that in order to exclude a statement, there must
have been "some conduct on the part of authority which is improper and
unjustified." 80 However, Martland J. did not mention that this condition for
exclusion was rejected decisively by the House of Lords in the more recent
case of D.P.P. v. Ping Lin8 7 as complicating and restricting the clear applica-
tion of the general principle. 88 Therefore, it is doubtful whether Martland J.'s
interpretation represents English law on the matter. In the instant case, there
was no attempt by the Crown to introduce evidence of the statements made
while the appellant was in the hypnotic trance. Indeed, Martland J. made it
clear that they could not have been admitted.89 The only admissible state-
ments were those made while Horvath was in "full and voluntary control of
his faculties." 90 Therefore, there was no question of the post-hypnotic state-
ments being tainted and thereby rendered inadmissible by the prior hypnotic
state of the appellant. Consequently, the dissentients would have dismissed
the appeal.
Apart from adopting a traditional and mechanistic approach to the issue,
Mr. Justice Martland's dissent is inconsistent and confusing. At the heart of
his judgment lie two incompatible and conflicting arguments: the Ibrahim
rule is the sole determinant of the issue of the pretrial statements by the
accused to a person in authority and there ought to be a separate rule dealing
with statements obtained from an accused while he is in an hypnotic trance.
In arriving at these conclusions, Martland J. pursued a fallacious line of
reasoning. He observed that, had the Crown sought to introduce the state-
ments made by the appellant while he was still in an hypnotic trance, the trial
judge would have refused to admit them. However, as Martland J. correctly
notes, the trial judge would have taken this course not because of the exist-
ence of threats or promises made by persons in authority, "but because the
appellant, at the time those statements were made, was not in a condition
which would make it safe to admit them." 91 Having decided that no question
of "tainting" could arise because the circumstances that would give rise to
such a claim had ceased to exist, Martland J. continues:
There is no evidence of threats or inducement which led to the making of a state-
ment. The objection to the possible admission of the statement made while in a
light hypnotic state is not against the conduct of persons in authority when that
statement was made. The objection would arise because of the condition of the
appellant at that time which would make the statement involuntary.... The
condition of the accused, in a light hypnotic state, which would have excluded
the statement then made, no longer continued at the time the statements, in issue
in this case, were made.92 [Emphasis added.]

8
5 [1975] 1 W.L.R. 716, [1975] 1 All E.R. 77 (C.A.).
86Id. at 721-22 (W.L.R.), 82 (All E.R.).
87
Supranote 42.
88
See the observation of Lord Morris, id.at 594 (A.C.), 177 (All E.R.), and of
Lord Hailsham, id. at 602 (A.C.), 184 (All E.R.).
8
9 Supra note 9, at 391 (S.C.R.), 13 (D.L.R.), 397 (C.C.C.).
'OSupra note 72.
91Supra note 9, at 392 (S.C.R.), 13 (D.L.R.), 397 (C.C.C.).
92 Id. at 392 (S.C.R.), 14 (D.L.R.), 398 (C.C.C.).
 OSGOODE HALL LAW JOURNAL (VOL. 18, NO. I

In taking such a stance, Martland J. not only advances contradictory

arguments, but also fails to offer any precedential support for the existence
of a special rule dealing with confessions made under hypnosis. He is content
to rely on the premise that it would be unsafe to admit confessions made
under such circumstances. It can only be assumed that in reaching this con-
clusion, Martland J. was thinking in terms of the untrustworthiness of the
statement. Moreover, despite his arguments to the contrary, he does concede
that the element of hypnosis is critically important in determining which rule
or formulation of the rule is applicable. It becomes apparent that his real
disagreement with the judgment of Beetz J.93 is not based on principle, but
on a different conclusion about which statements of the appellant had been'
made under the influence of hypnosis. Viewed in this light, the judgment of
Martland J. provides little guidance in arriving at a rational and efficacious
rule for the admissibility of confessions.
Unfortunately, the majority could not agree on the question of hypnosis.
Mr. Justice Spence, with whom Estey J. concurred, placed no emphasis on
the presence of hypnosis, but preferred to stress "the complete emotional dis-
integration of the appellant. '9 4 He interpreted the decision of the trial judge
as being heavily based on the emotional collapse of the appellant and con-
cluded that this was why the decision of the British Columbia Court of Appeal
could not stand. However, such an argument is seriously undermined in view
of Gould J.'s express statement that "it is the factor of hypnotism which has
tipped the balance against admission." 95 In fact, the trial judge went on to
state that. he would have admitted the evidence were it not for the vitiating
factor of hypnosis. Clearly, he regarded the issue of hypnotism as pivotal.
In handling the Ibrahim rule, Spence J. showed strong disapproval of
the tendency to restrict "voluntariness" to a "narrow and confined"9 0 mean-
ing. Instead, he maintained that Ibrahim97 and those cases that followed it:
have not and need not be considered to have reduced the words 'free and volun-
tary' in the test ... to only meaning that the statement has not been induced by
any hope of advantage or fear of prejudice and it is my view that a statement
may well be held not to be voluntary, at any rate, if it has
98
been induced by some
other motive or for some other reason than hope or fear.
Spence J. placed great emphasis upon "the extraordinary circumstances which
surround the statement made by the appellant in the present case '9 9 and he
relied upon this fact to distinguish the decisions in Boudreauee and Fitton1 0 '
which, he admitted, gave strong support to the narrow interpretation of the

93 See text accompanying notes 109-11, infra.

94
Supra note 9, at 400 (S.C.R.), 20 (D.L.R.), 404 (C.C.C.).
95 Id. at 383 (S.C.R.), 7 (D.L.R.), 391 (C.C.C.).
96 Id. In the light of his judgment, "narrow and confining" might have been a more
appropriate description.
97
Supra note 6.
9SSupra note 9, at 401 (S.C.R.), 21 (D.L.R.), 404-05 (C.C.C.).
99Id. at 404 (S.C.R.), 23 (D.L.R.), 407 (C.C.C.).
1o Supra note 57.
101 Id.
19801 Confessions Rule

Ibrahim rule. Thus, while he limits those cases to their facts he ignores the
main distinguishing feature of the present case-the presence of hypnosis-
for he is already committed to the view that such a consideration has no part
to play in disposing of the appeal. His conclusion is that Fitton:
must be limited so as not to rule admissible statements made by the accused when
not induced by hope of advantage or fear of prejudice but which are certainly
not voluntary in the ordinary English sense of the word because they were induced
102
by other circumstances such as existed in the present case. [Emphasis added.]
Applying this formulation of the rule to the facts of Horvath, Spence J.
had no difficulty in finding that, following intensive questioning by "a skilled
and proved interrogation specialist" leaving the seventeen-year-old appellant
in a state of "complete emotional disintegration,"' 01 3 an application of the rule
must lead to the conclusion that "no statement made by that accused under
those circumstances can be imagined to be voluntary."'0 4 In allowing the
appeal, therefore, he thought that the evidence should not be put before the
jury, but found that this could not be accomplished by the traditional formu-
lation of the Ibrahim rule. Instead, he looked towards the concept of "op-
pression."' 0 5 However, the trial judge had found as a fact that there had been
no such oppression and that the tactics of the police were beyond reproach.
Indeed, Gould J.expressed the view that his ruling was given "with very real
regret that policework as skilful as this should end in frustration of its pur-
pose." 1e 6 Further, Mr. Justice Spence never came close to stating the reasons
for the inadequacy of the Ibrahim rule. He distinguished Boudreau'0 7 and
Fitton"' unconvincingly and simplistically and did not undertake a rational
and much-needed development of the principles and policy involved. Fur-
thermore, he mistook the trial judge's grounds for judgment. Accordingly,
the judgment of Spence J. is unsatisfactory and contributes to the confusion
in this area of the law.
The second judgment of the majority, delivered by Beetz J., with whom
Pratte J. concurred, attempts to answer those problems raised by Spence J.
and compensates for the shortcomings of the judgments of Martland and
Spence J1. Apart from exhibiting clarity and integrity of analysis that the
other judgments lack, the decision of Mr. Justice Beetz deals directly with
the element of hypnosis.'0 9 Beetz J. conceded that, although Sergeant Proke
had unwittingly induced an hypnotic state in Horvath, the interrogation tech-

lo 2 Supra note 9, at 408-(S.C.R.), 26-27 (D.L.R.), 410 (C.C.C.).

103Id. at 410 (S.C.R.), 28 (D.L.R.), 412 (C.C.C.).
104 Id.
105 See text accompanying notes 45-48; supra. He also referred to the decision of
Dixon J. in McDermott v. The King (1948), 76 C.L.R. 501, [1948] 2 A.L.R. 466, 22
A.L.J. 336 (Aust. H.C.).
30oSupra note 9, at 383 (S.C.R.), 7 (D.L.R.), 391 (C.C.C.).
107 Supranote 57.
108 Id.
1 09
The only Canadian authorities on the use of hypnosis in the criminal process
are of little help in deciding this particular issue: R. v. Pitt (1968), 68 D.L.R. (2d)
513, 66 W.W.R. 400, [1968] 3 C.C.C. 342 (B.C.S.C.); and R. v. Booher, [1928] 4 D.L.R.
795, [1928] 3 W.W.R. 203, 50 C.C.C. 271 (Alta. S.C.).
 OSGOODE HALL LAW JOURNAL [VOL. 18, NO. I

niques used, like polygraph tests or narcoanalysis treatment, presented "cer-

tain elements of artificiality, technicality and external intervention which are
somewhat out of the ordinary and they should never be used without the
subject's full and unequivocal consent."" 0 Horvath could not be taken to
have consented in any way to the treatment and the inadvertent nature of the
hypnotism "did not remove the objective element of moral violence involved
in the process nor did it alter the impact on Horvath's mind.""'
Beetz J. strongly criticized Dr. Stephenson's use of the words "volun-
tary" and "involuntary" and suggested that they had been used in a medical,
rather than a legal or ordinary sense. He took the view that nothing that the
appellant had said while under hypnosis was voluntary, in the legal sense of
that term. Such criticism is entirely justified. "Voluntariness" is the legal talis-
man of admissibility in these cases and, as such, must not be subjected to a
variety of different meanings that would serve only to exacerbate the existing
uncertainty. Beetz J., therefore, met the problem squarely and inquired into
the correct scope of the concept of voluntariness. In this regard, he decided
that the Ibrahim rule was not exhaustive, but that it was a judge-made rule
that had to adapt to emerging circumstances and concerns. Although the
rule is expressed negatively, the central and governing principle of voluntari-
ness is a positive one and any extension of the rule, to be justified, must
remain faithful to that principle. Taking a basic civil libertarian stance, Beetz
J. argued that the morally violent intrusion by the police officer into the ut-
most privacy of a suspect's mind infringed the concept of "voluntariness" to
the same extent as physical assault and clearly fell within the spirit of the
Ibrahim rule:
[U]nconsented hypnosis induced by a person in authority ought in my view to be
added to the motives of exclusion mentioned in Ibrahim for it is covered by the
principle which inspired the rule; the wording of the rule could not exhaust the
fecundity of the principle."12

Although the phenomenon of hypnosis has been known to man for centuries, its use
in the criminal process has not been fully explored; see Linett and Farr, The Use of
Hypnosis in the Criminal Process (1979), 11 U.W.L.A. L. Rev. 25; Allen, Hypnotism
and its Legal Import (1934), 12 Can. B. Rev. 81; and Spector and Foster, The Admis-
sibility of Hypnotic Statements: Is the Law of Evidence Susceptible? (1977), 38 Ohio St.
L.J. 567.
11OSupra note 9, at 422 (S.C.R.), 37 (D.L.R.), 421 (C.C.C.). It is interesting to
note that a statement may be rejected where the accused was in a condition of intoxica-
tion at the time that the statement was taken: R. v. Washer, supra note 58; Costain v.
The Queen (1960), 129 C.C.C. 348 (P.E.I.S.C.); R. v. Drewicki (1963), 41 C.R. 265
(B.C. Co. CL); R. v. Keen (1967), 58 W.W.R. 479, [1967] 2 C.C.C. 261 (B.C.S.C.);
and R. v. Fex, [1973] 3 O.R. 242, 12 C.C.C. (2d) 239 (Ont. H.C.), [afl'd (1973) 1
O.R. (2d) 280 (Ont. C.A.). Leave to appeal to S.C.C. dismissed (1973) 1 O.R. (2d)
280n]; but see R. v. Pedersen, [1956] O.W.N. 212 at 215, 114 C.C.C. 366 at 370 per
Gale J. (Ont. H.C.): "I should like to say that ... unless the consumption of alcohol
renders a man susceptible to the influences which normally cause a statement to be
inadmissible that which is said by a person in that condition is admissible in evidence
although perhaps of little weight." However, it has been decided that where the accused's
condition was affected by drugs, this was simply a matter of weight and not admissibility:
R. v. Schwartz (1973), 13 C.C.C. (2d) 41 (Ont. C.A.). The drugs were self-adminis-
tered and not provided by the police.
llId. at 422 (S.C.R.), 38 (D.L.R.), 421 (C.C.C.).
112 Id. at 426 (S.C.R.), 41 (D.L.R.), 425 (C.C.C.).
1980] Confessions Rule

His conclusion was that the "second statement," occurring, as it did,

about two or three minutes after Horvath had come out of the trance, was
tainted by the inadmissibility of the "first statement." The "third statement"
was also vitiated because its source could be traced back to the same hypnotic
13
state: "each stage of the process aroused the other in quick succession.""1
These findings, coupled with Beetz J.'s expressed view that "the use of such
interrogation techniques on unwilling suspects is a dehumanizing process and
should ... be proscribed, ' 1" 4 led to his decision to agree with the trial judge
that the factor of hypnotism had tipped the balance against admission. As
a result, he allowed the appeal.

IV. AN AGENDA FOR A RATIONAL INQUIRY

The judgments in Horvath provide a microcosm of the difficulties that
judges must face in determining the admissibility of confessions. Such diffi-
culties are caused by the limitations and restrictions of an analysis wedded
to the Ibrahim formula. An interpretation and application of the Ibrahim rule
was central to each opinion. Each judge felt the need to justify his decision
by reference to it and each had difficulty applying it in order to reach the
result that he thought the facts demanded. Clearly, Mr. Justice Martland be-
lieved that the evidence should have been admitted. He was able to achieve
this result by adopting a strict application of the Ibrahim rule. However, his
judgment was unable to absorb the impact that hypnosis would have had on
the formulation of the rule and he was forced to find, as a matter of fact, that
the hypnotic state no longer existed. Mr. Justice Spence, realizing that a strict
application of the Ibrahim formula would lead to the admission of the state-
ments into evidence-a conclusion that he was clearly unwilling to sanc-
tion" 5-was forced to redefine "voluntary" in wider terms than "hope of
advantage or fear of prejudice."

113 Id. at 431 (S.C.R.), 45 (D.L.R.), 429 (C.C.C.).

l4 Id. at 434 (S.C.R.), 47 (D.L.R.), 431 (C.C.C.).
115 It is only possible to speculate as to the real reasons for this position, but it is
suggested that the whole tone of Spence J.'s judgment is motivated by a desire to avoid the
apparent impropriety of admitting evidence obtained from a highly suggestible seventeen-
year-old youth, of unstable personality, under the circumstances obtaining in this case;
see supra note 9, at 410 (S.C.R.), 28 (D.L.R.), 412 (C.C.C.). In this context, it is
illuminating to compare the approach of some of their Lordships in the House of Lords
in D.P.P. v. Ping Lin, supra note 42. In this case, statements made by a Chinese heroin
dealer regarding his own liability and the identity of his supplier were held to be ad-
missible. The appellant contended that his confession was inadmissible on the basis that
it was induced by a hope of advantage in that he had been led to believe that, if he led
the police to his supplier, the judge would bear this in mind when passing sentence upon
him. Lord Hailsham was of the clear opinion that: "Quite obviously, perverse and un-
acceptableas such a result would be, it is a contention which must be examined seriously
in the light of the [Ibrahim] rule...... [Emphasis added.]; id. at 599 (A.C.), 182 (All
E.R.). The House of Lords ultimately found themselves able to admit the statements
on a strict application of Ibrahim. It is submitted that the Ibrahim rule lends itself to
this sort of judicial manipulation. The House of Lords was clearly of the opinion that
Ping Lin was guilty of the offence as charged and that he wished to use the Ibrahim
rule to his advantage to avoid conviction on technical grounds-a conclusion that it was
not prepared to permit. Thus, their Lordships were able to achieve their desired result
by sanctioning a strict application of the rule even though two of them might still have
 OSGOODE HALL LAW JOURNAL [VOL. 18, NO. I

Only Mr. Justice Beetz perceived the true nature of the problem and
made a valiant attempt to escape from the restrictiveness of Ibrahim by look-
ing to the principle behind the rule.
The problem for each judge, therefore, can be traced to the lack of a
clear statement of the rationale for the rule by which such formulations could
be justified. Without the security of a reasoned foundation, the different
approaches were merely perpetuating and, at times, exacerbating the confu-
sion inherent in this branch of the law of evidence. To avoid further con-
fusion there must be a return to first principles and a concerted effort to
construct a rational doctrine for the admissibility of confessions that fulfils
the practical requirements of the contemporary environment. Before such an
ambitious project can get under way, an agenda must be drawn up that sets
out the crucial problems to be examined and overcome if such an undertaking
is to be brought to a sound and successful conclusion.
A worthwhile starting-point for such a venture is the notion of judicial
discretion, whose place within the Ibrahim rule is well established.110 In an-
other context, Professor Ronald Dworkin has suggested that "discretion, like
the hole in a doughnut, does not exist except as an area left open by a sur-
rounding belt of restrictions. 11 7 Without distorting the reasoning behind this
simile, it is instructive to draw an analogy between this observation and the
situation in which the courts have found themselves in their efforts to accom-
modate the Ibrahim formula to the changing circumstances surrounding police
interrogation of suspects. The courts feel enclosed by Ibrahim. They seek to
justify their decisions with reference to its scope and its wording; they appear
to believe that it prevents them from developing new approaches that will not
only lead to just and consistent decisions in the cases before them but that
will also be based upon rational and purposive considerations. The result has
been that the search for a clearly articulated rationale has been abandoned
for the safer, more pedestrian, approach of treating a judge-made rule with
reverence usually accorded a statute. To return to Dworkin's simile, the
"hard case" 118 in a question concerning the admissibility of a confession may

excluded the statements as evidence had the confession not been made before the induce-
ment had been held out; see the observations of Lord Kilbrandon, id. at 604 (A.C.),
186 (All E.R.), and of Lord Salmon, id. at 607-08 (A.C.), 188-89 (All E.R.). The
difference in Horvath is that, at least for Spence J., Ibrahim, in its traditional formula-
tion, gave him no such assistance in his attempt to exclude the statements and, as a
result, he was committed to a redefinition of the rule.
116 See, inter alia, supra note 39, and the observations in D.P.P. v. Ping Lin, supra
note 42, of Lord Morris, id. at 594 (A.C.), 177 (All E.R.), Lord Hailsham, id. at 600
(A.C.), 182-83 (All E.R.), Lord Kilbrandon, id. at 604 (A.C.), 186 (All E.R.), and
Lord Salmon, id. at 606 (A.C.), 188 (All E.R.).
117Dworkin, Taking Rights Seriously (Cambridge, Mass.: Harvard Univ. Press,
1978) at 31. The simile occurs in the discussion of the concept of discretion in judicial
adjudication. It is beyond the scope of this paper to examine the jurisprudential basis of
discretion but the reader is referred to Hart, The Concept of Law (Oxford: Clarendon
Press, 1961) at 138-44 and Dworkin, op. cit., at 31 if. for opposing views on the subject.
118 A "hard case" is, by definition, a case where the law is uncertain before the
judge speaks. See, generally, Dworkin, id. at 81 if.
1980] Confessions Rule

be compared with the hole in the centre of the doughnut. Horvath is a classic
example of such a "hard case." Its unusual facts give rise to a situation that
Lord Sumner, in formulating the Ibrahim rule, never had in his contempla-
tion."19 Therefore, judicial statements to the effect that the rule should not be
broadened or narrowed 20 merely gloss over the real problem and, in effect,
miss the point. Consequently, there is an urgent need to eliminate the "hole"
and to reassess this area of the law with a view to formulating a test that,
unlike the one laid down in Ibrahim, is not predicated on the existence of the
"hole." "Voluntariness" is the touchstone of legal admissibility of such state-
ments, and yet the rule that seeks to give effect to this principle limits the
definition of "voluntariness" so as to create a gap in the rule, whose usefulness
is thereby severely limited. Ibrahim demands the existence of the hole but
offers no indication as to how it can be filled. Accordingly, any fresh analysis
must ensure that such a defect is eradicated and not inadvertently retained.
Before leaving this particular difficulty, it is revealing to examine the
reasons for the courts' feeling this magnetic and obsessive compulsion to re-
turn to Ibrahim in every case. The primary reason, of course, is the preceden-
tial force of the decision itself. The case has stood as the leading authority on
the subject, virtually unquestioned and unaltered, for sixty-five years. How-
ever, the numerous decisions of the Supreme Court of Canada and the pro-
nouncements of the House of Lords during that time' 21 indicate that all is far
from certain. Moreover, in Horvath itself, the Supreme Court of Canada
decided against admissibility only by the narrowest of margins and, even then,
the majority disagreed amongst themselves as to the correct test to be applied.
It would appear, therefore, that the traditional formulation of the Ibrahim
rule has long since outlived its usefulness. Indeed, the numerous attempts by
the courts to keep the rule in line with new and emerging circumstances have
been dismal failures and have resulted in obfuscation rather than elucidation
of the rule. In effect, the courts have indulged in a fruitless semantic exercise
and, in the process, have been forced to distort the facts of cases in order to
fit them into the verbal strait-jacket of the Ibrahim rule. It is high time that
such contortions were halted. In Dworkinian terms, the doughnut has now
gone stale and a new recipe is required which will not permit the existence
of such a hole.
The first task in any rational rebuilding of the doctrine of the admissi-
bility of confessions is to decide upon and articulate the policy that the doc-
trine is seeking to implement and promote. Such an endeavour is fraught with
difficulty and demands the utmost clarity and sophistication of analysis. For-
tunately, the theoretical framework assembled and so successfully employed
by Herbert Packer,122 although ignored by scholars in the field of judicial
evidence, provides a suitable tool for such an inquiry. Briefly, Packer ex-

19 Supra note 9, at 426 (S.C.R.), 41 (D.L.R.), 424 (C.C.C.).

120 See, for example, the observations made in R. v. Fitton, supra note 57; and
D.P.P.
12
v. Ping Lin, supra note 42.
1 See supra notes 52 and 43.
122 Packer, The Limits of the Criminal Sanction (California: The Stanford Univ.
Press, 1968) at 186-94.
 OSGOODE HALL LAW JOURNAL [VCOL. 18, NO. 1
amines the detention and interrogation stage of the criminal process through
the use of two analytical models. Under a "Crime Control Model," he pos-
tulates that the police would be left to their own devices in obtaining infor-
mation from a suspect and that any statement made by the accused would be
admissible into evidence against him. Packer argues that "criminal investiga-
tion is a search for the truth and anything that aids the search should be
encouraged."' 2 3 The primary objective is to promote police efficiency and to
protect society. Under a "Due Process Model," he suggests that a suspect
would never be permitted to be detained simply for the purpose of interroga-
tion and that any statement made by a suspect while detained would only be
admissible if, having been informed of and actively encouraged to take ad-
vantage of his rights, the suspect made such a statement spontaneously and
unprompted. In this way, the police are deprived of any incentive to encour-
age suspects to confess:
The rationale of exclusion is not that the confession is untrustworthy, but that it
is at odds with the postulates of an accusatory system of criminal justice in which
it is up to the state to make its case against a defendant without forcing him to
co-operate
24
in the process, and without capitalizing on his ignorance of his legal
rights.1
The models are framed in extreme terms and take a functional approach to
the problem. Although certain conceptual difficulties are skirted, 125 such an
analytical framework presents the available alternatives in a stark, yet realistic
light. It focuses upon the tension at the very heart of the problem that has
to be resolved if a sound and practical solution is to be achieved. Conse-
quently, it is crucial that any proposed rule possess the necessary flexibility
to allow the police to interrogate suspects with as little interference as pos-
sible and to preserve, inpractice as well as in theory, the rights conferred by
the law upon suspects. It must strike that elusive balance between societal
and individual justice. However, in seeking such an arrangement, the danger
in reaching a compromise that erodes these demands and simply frustrates
their aims is to be constantly guarded against. In broad Kantian terms, any
proposed solution must result in an optimal state of affairs in which the fullest
facilitation of the claims of one is permitted to the extent that it is compatible
with the fullest preservation of the claims of the other.
Having agreed upon the policy that the doctrine is seeking to implement,
it is essential to explore the particular quality and character of a confession
as a piece of evidence and to gain an informed appreciation of its relation to
other types of evidence. Although making this suggestion appears to be stress-

123 Id. at 189. This does not mean that abuses of this freedom would go unchecked.
Internal disciplinary procedures would be stressed and there would be a sophisticated
programme of administrative management to ensure that resources were used efficiently.
Also, the fact that certain methods of interrogation would be unacceptable to the triers
of fact who would not be prepared to rely on evidence so obtained would act as an
indirect control.
124 Id. at 121.
125 This approach does not take into account the fact that any inquiry must at some
stage grapple with the central and complex concepts of trustworthiness and the privilege
against making self-incriminating statements.
1980] Confessions Rule

ing the obvious, it is a sad and inexcusable fact that most modem commen-
tators have failed to examine this aspect of the nature of confessions.12 Such
an omission has put the whole doctrine on an insecure footing and accounts
for much of the conceptual confusion that shrouds the problem of confes-
sions. The general approach has been to classify confessions as a broad ex-
ception to the hearsay rule 27 and, in certain instances, to treat confessions
as an entirely separate species of evidence. 28 Although both of these ap-
proaches can claim a certain degree of validity, they fail to convey and reflect
the involved evidentiary pedigree of confessions. A rigorous study must be
made, in terms of logic and policy, of the precise nature of the relationship
between a confession and hearsay statements and between a confession and
admissions. An especial concern of any discussion must be the impact of the
introduction of "authority" into the picture. As the shadow cast by authority
over the evidence is at present of primary significance, 29 detailed scrutiny,
employing juristic and sociological research, is necessary for the formulation
of a doctrine that provides sufficient safeguards against the type of harmful
influence that such authority is perceived to exert. Unfortunately, this subject
has previously received scant attention.

After tracing and clarifying the evidentiary pedigree of confessions, the

form and substance of any separate rule to govern the admissibility of confes-
sions will begin to take shape. However, the formulation of any rule must
satisfy two requirements if it is to perform its function. It must be expressed
30
positively and should not, as the Ibrahim rule does in "typical legal fashion,"'
be expressed in negative terms. As the rule makes confessions prima facie
inadmissible, it is necessary to know in what circumstances it will become
admissible rather than in what circumstances it will remain inadmissible.
Second, the formulation of the rule must address and make clear the causal
basis of the doctrine. That is, it must indicate whether the test to be applied
is subjective, looking to the particular suspect, or objective, looking to the
conduct of the interrogator, or a combination of both. Although the rule is
intimately connected to the policy and rationale underlying the control of
police conduct, the courts have been extremely reluctant to enter this de-

126 It will come as no surprise to learn that Wigmore cannot be caught by such an
allegation. In a characteristic no-stone-left-unturned approach, Wigmore gives the prob-
lem a thorough and painstaking analysis; see, supra note 7, at 290 ff.
7
12 See Phipson, supra note 43, at 337 and, to a lesser extent, Cross, supra note 43,
at 482 ff.
128See Heydon, supra note 43, at 168 ff.
129 Although not based on an extensive analysis of the problem, there have been
suggestions to dispense with the requirements of a "person in authority;" see Criminal
Law Revision Committee, Eleventh Report, Evidence (General) (Cmnd. 4991, 1972) at
para. 58 and the observations of Viscount Dilhorne in Deokinananv. The Queen, [1969]
1 A.C. 20 at 33, [1968] 2 All E.R. 346 at 350, [1968] 3 W.L.R. 83 at 91, 52 Cr. App. R.
241 at 250 (P.C.).
130 Supra note 9, at 424 (S.C.R.), 39 (D.L.R.), 423 (C.C.C.).
 OSGOODE HALL LAW JOURNAL (VOL. 18, NO. I

bate. 131 Concessions have been made to particular classes of suspect, 3 2 but
there is little evidence that the courts are prepared to take into account the
institutional realities of the criminal justice system and to examine individual
responses to particular police methods. The crucial question to be resolved in
this objective-subjective controversy is succinctly posed by Welsh S. White:
Should the courts focus primarily upon the police conduct itself and attempt to
measure its likely effect upon a typical person who is in the suspect's position or
should the courts focus exclusively on the actual impact of the police conduct
upon the particular suspect who is before the court?' 33

V. CONCLUSION
There is considerable agreement amongst academics and practitioners as
to the significance of a confession, especially its potentially conclusive impact
upon the outcome of any criminal proceedings in which it is admitted as
evidence. 13 4 Indeed, the observation can be made that a confession, once
admitted, becomes the focal point of the trial and has a considerable effect
upon the remainder of the proceedings. 13 5 Consequently, the conditions and
circumstances in which a confession becomes admissible must be closely
circumscribed and must be the product of a thorough and rational inquiry;
"in history and in principle, statements in the nature of confessions of guilt
by an accused person stand somewhat apart and call for a separate treatment
in the law of evidence."' 36 The difficulty of such a task is compounded when
the widely opposed views of the intrinsic quality of a confession are con-

131 An elusive straw in the wind may be grasped from certain opinions expressed in
the House of Lords in D.P.P. v. Ping Lin, supra note 42. Lord Morris, id. at 595
(A.C.), 178 (All E.R.), and Lord Hailsham, id. at 601 (A.C.), 183 (All E.R.), favour
some degree of subjective causal inquiry, whereas Lord Kilbrandon, id. at 604 (A.C.),
186 (All E.R.), and Lord Salmon, id. at 607 (A.C.), 188 (All E.R.), opt for an objec-
tive approach to the whole issue.
182 These include juveniles, young girls and mentally retarded persons; see McWil-
liams, supra note 52, at 243-46.
'33Police Trickery in Inducing Confessions (1979), 127 U. Pa. L. Rev. 581 at
597. Another closely connected problem, although not strictly part of the doctrine of
confessions itself, is that of the admissibility of facts discovered as a result of an inad-
missible confession. Any attempt to achieve a comprehensive examination of the con-
fessions doctrine must include a discussion of this problematic area. See, for example,
Cowen and Carter, Essays in the Law of Evidence (Oxford: Clarendon Press, 1956) at
41 ff., Gotlieb: Confirmation by Subsequent Facts (1956), 72 L.Q. Rev. 209; Andrews,
Involuntary Confessions and Illegally Obtained Evidence in Criminal Cases, [1963] Crim.
L.R. 15 and 77; Heydon, supra note 43, at 223-30; and note 60, supra.
S4 A confession alone is sufficient to support a conviction and does not require
corroboration. There is no legal duty on a trial judge to warn the jury of the danger of
convicting on such evidence: R. v. Kelsey, [1953] 1 S.C.R. 220, 105 C.C.C. 97.
335 From the point at which the confession is admitted into evidence, the defence
must strive to counteract the adverse impact of such evidence on their case. Of course,
the jury does not have to accept the truth of the confession simply because the trial
judge determines that the confession is voluntary and it is for them to decide what
weight to attach to it: R. v. Orel, [1944] 3 D.L.R. 590, [1944] 2 W.W.R. 378 (Sask.
C.A.); R. v. McLaren, [1949] 2 D.L.R. 682, [1949] 1 W.W.R. 529, 93 C.C.C. 296 (Alta.
C.A.). Also, the defence is not prevented from putting before the jury any evidence that
it introduced on the voir dire.
136 Wigmore, supra note 7, at 286.
1980] Confessions Ruile

sidered. 137 The thesis of this comment has been that the confusion abounding
in this area of the law can be eradicated only by an analysis that returns to
first principles. Until such an analysis is attempted, decisions such as Horvath
will proliferate and the unsatisfactory state of the law will persist. A new and
responsive treatment is required.

137
For instance, while some commentators have maintained that a confession is the
"best evidence," Gilbert, The Law of Evidence (6th ed. London: W. Clark & Sons,
1801) at 123; others have considered it "the weakest and most suspicious of all testi-
mony." Bernard-Chapdelainev. The King (1933), 56 Que. K.B. 52 at 62 per Tellier C.J.