Confession rule and voluntariness

R. v. M.D., 2012 ONCA 841 deals with the confession rule and voluntariness:

The Voluntariness Issue

[39]       The confessions rule is concerned with voluntariness, broadly defined: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 32. The application of the confessions rule is contextual, requiring a trial judge to take into account all relevant circumstances in order to determine whether the prosecution has established the voluntariness of the confession beyond a reasonable doubt:Oickle, at paras. 47, 68, and 71.

[40]       Recording police interviews of persons suspected or accused of crime can be of inestimable value in assessing their voluntariness at trial. Video recordings permit the trial judge to be an ear and eyewitness to the interview tendered for admission: Oickle, at para. 46. The Oickle court was not prepared, however, to consider non-recorded interrogations as inherently suspect: Oickle, at para. 46.

[41]       In this province, where a suspect is in custody in a place where recording facilities are available and police deliberately set out to interrogate the suspect without giving thought to the creation of a reliable record of the interview process, the resulting non-recorded statement is inherently suspect: R. v. White(2003), 176 C.C.C. (3d) 1 (Ont. C.A.), at para. 21; R. v. Moore-McFarlane(2001), 160 C.C.C. (3d) 493 (Ont. C.A.), at paras. 65-67. In these circumstances, the trial judge must decide whether there was a suitable substitute for a recording to satisfy the heavy onus on the Crown to prove voluntariness beyond a reasonable doubt: White, at para. 21; Moore-McFarlane, at paras. 65-67.

[42]       The application of the voluntariness rule to individual cases is contextual:Oickle, at para. 47; Moore-McFarlane, at para. 64. A disagreement with a trial judge about the weight to be assigned to individual items of evidence constitutes no basis upon which an appellate court can set aside a finding of voluntariness:Oickle, at para. 22. Trial judges' findings of voluntariness are entitled to deference here. Interference with those findings should only occur where the trial judge has committed legal error in determining the test for voluntariness or has made overriding and palpable errors of fact: Moore-McFarlane, at para. 68.