Videotaping police/accused interaction

R. v. Fraser, 2011 ONCA 238 deals with confessions.

In general, a statement made by an accused to a person in authority is inadmissible in a criminal or quasi-criminal proceeding against the accused unless the statement is proven, to beyond reasonable doubt, to be free and voluntary.

Proof of voluntariness is no small task -- best practice has police videotape as much of the interaction between the accused and police as possible. That said the failure to videotape all interaction is not fatal to the admission of the statement. The Court holds:


[5]             ...  The failure to record the three-hour interval before the confession does not per se adversely affect the reliability of the subsequent confession.  That confession was videotaped.  The failure to videotape the interaction between the appellant and the police in the time period preceding the confession does, however, alert the trier of fact to the need to carefully scrutinize both the interaction between the police and the accused during that time period and the explanation offered for not videotaping that interaction.  The trial judge did so in his ruling on the voir dire and in the context of his assessment of the voluntariness of the confession.  That ruling was not challenged on appeal.