What is the test for admitting a confession in a sexual assault case?

British Columbia, Canada


The following excerpt is from R. v. Arp, 1995 CanLII 663 (BC SC):

18 Despite the change in the formulation of the rule governing the admissibility of confessions or admissions it must first be established beyond a reasonable doubt that the statement is that of the accused and that it was made freely and voluntarily by a person in possession of his mental faculties. See Ward v. The Queen 1979 CanLII 14 (SCC), [1979] 2 S.C.R. 30 at p. 40 and R. v. Egger 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451 at p. 474.

19 In Ward Spence, J. in referring to Boudreau v. The King 1949) 94 C.C.C. l, wrote: I have emphasized the last sentence in Rand J.'s statement to indicate that in my view the examination of whether there was any hope of advancement or fear of prejudice moving the accused to make the statements is simply an investigation of whether the statements were "freely and voluntarily made". In my view, there is a further 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 to determine whether or not the statements represented the operating mind of the accused. In my view, Manning J. engaged in a consideration of both the mental and physical condition of the accused, firstly, to determine whether a person in his condition would be subject to hope of advancement or fear of prejudice in making the statements, when perhaps a normal person would not, and, secondly, to determine whether, due to the mental and physical condition, the words could really be found to be the utterances of an operating mind. Manning J. had a reasonable doubt of both issues and, therefore, found the statements to be inadmissible. It is not denied that a reasonable doubt on the part of the trial judge upon the issue is sufficient ot justify his refusal to admit the statements in evidence. (emphasis added) (S.C.R., p. 40;)

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