July 2012        Attack on Reid technique fails. Failed attempt to prove a false confession.


R. v. Pearce (2012) MBQB[1]
By Gino Arcaro M.Ed., B.Sc.

I. Introduction

Picture this: You're investigating a homicide. No suspects. It becomes a cold case. Six months later, a victim's friend contacts you and says he may have information relevant to the case. After interviewing him, you suspect he may be involved. He consents to a polygraph test and passes. 

  
The suspect contacts you again. This time he confesses that he had an argument with the victim and hit the victim with a golf club. The fact that a golf club was the murder weapon was not disclosed to the public.


You charge the suspect with manslaughter. The confession is your entire case. What should you anticipate at the trial? A defence of false confession. That's what happened in this case.

Why would an innocent person falsely confess to a crime? In 15 years of policing, of which six years were detective work, I interrogated hundreds of people. No one falsely confessed. I've testified at countless voir dires. The defence of false confession was never raised in any one of my cases. I have no direct experience with false confessions.

The Supreme Court of Canada, in R. v. Oickle, acknowledged that although false confessions are rare, the problem of false confession is real and can't be ignored. In Oickle, the SCC explained the taxonomy of false confessions, five leading causes of false confessions. One is not the product of interrogation. The other four are.

Click here for this article. 



 

June 2012       "Significance of Exculpatory statements from the Stafford homicide"
R. v. Rafferty, 2012 ONSC 1162 (CanLII) Feb. 16, 2012

By Gino Arcaro M.Ed., B.Sc. 

Introduction: No evidence is stronger than a true confession. A properly obtained, true confession is the best evidence you can get. But, the rules of evidence regarding statement admissibility may be the most complex in all of Canadian criminal law. No statute explains how to get a confession. No statute even explains the rules of confession admissibility. The only way to become an expert in confession admissibility is to study case law. Case law holds the secret to getting true confessions. To become an expert interrogator, you have to become an expert case law researcher. There's no way around the study of case law. If you don't have an expert understanding of case law, you don't have an expert understanding of interrogation. The reason is simple - case law has all the answers to interrogation. Case law has the solution to interrogation. But how can police officers be expected to study the mounds of case law when they're busy fighting crime?

This case involves a voir dire in the Tori Stafford homicide, the horrific murder of an 8 year old that dominated the news for months. I decided to include most of the judgment verbatim for two reasons: (i) so absolutely nothing gets lost in translation. (ii) You, the reader, have to read the judgment to make full sense of it. (iii) There's no way to condense it. (iv) to prove my point about the complexities of rules of evidence and how case law has all the answers and solutions that solve the mystery of how to get true confessions in Canada.

Click here for this article. 



 

May 2012       Offer of help may jeopardize confession admissibility

R. v. Gilbertson (2012) BCSC[1] 20-04-12

Gino Arcaro M.Ed., B.Sc.

Part I - Editorial

As business owner, I find this case to be an outrage. In a nutshell, a convenience store clerk went to work, trying to make an honest living. The clerk then faced death by being robbed at knifepoint. After an investigation, the accused was arrested and was interrogated twice by two separate officers. Here's the first shocker (verbatim from the judgment): "According to the accused's evidence, he had smuggled some speed into his cell the night before, and had it with his breakfast, which was shortly before the interview commenced." Unbelievable. 


Then, the accused confessed. Again, verbatim from the judgment: "He said he was threatened to do the robbery because he owed money to a dope dealer. He explained that he did the robbery to help pay off his drug debt... he agreed that the photo of the man in the convenience store was him."


The British Columbia Supreme threw out the confession because of the way the interrogating police officer offered to personally help the accused person with his drug addiction.


As an ex-detective, I've been in interrogation rooms, I've testified at voir dires, I was testifying at trials since the Charter's rookie season. I have experienced outrageous decisions where crime victims were all but forgotten and the severity of the crime ignored. By the time I finished the reading the Gilbertson judgment, the same thing happened - I had to remind myself that a victim's life was threatened during a major crime.


This article is divided into three parts:
Part 1: this editorial,
Part 2: the case & ruling
Part 3: conclusion - practical application

 

Click here for this article. 



 

 

March 2012    The balance of power: close the "Sophistication Gap."

by Gino Arcaro M.Ed., B.Sc.

R. v. Tshitenge Masuku (2011) 

Experience versus inexperience. The balance of power with respect to an interrogator and a suspect has become one of the major factors that affect the voluntariness of a confession and its admissibility. The problem facing the police is that the experience gap is inherent to most interrogations; the imbalance of experience-power is hard to avoid. I will devote as many articles as possible toward this subject because it will continue to be used as defence argument at a voir dire. 

Some of my past articles have shown examples of how the power imbalance has caused a confession to be excluded as evidence. This case is different. It deals with an example of an admissible confession where the defence argued for exclusion based on the potential effect of an experienced detectives tactics on overcoming the will of a "younger, despondent, tired, cold, afraid, unwell accused who attempted on many occasions to remain silent and was refused his request to return to his cell... the defence paints a picture of a fragile young man, pitted against a veteran police detective and accordingly, contends that the statement should be excluded." This quote represents the type of defence arguments police can expect in the future. 

This case is one point-of-reference example of a failed defence. It's part of my ongoing research to help police officers find a strategic solution to the investigative problem of "power imbalance." Click here for the complete article.

 

 Click here for this article. 



 

January 2012             "Stick to offence, not defense" 

 

by Gino Arcaro M.Ed. B.Sc. 


R. v. Côté (2011) SCC

I.Don't criticize a defence lawyer's advice.

Stop bad-mouthing defence lawyers to suspects during an interrogation. This is the most important message that comes from this decision regarding interrogation. This is another in a long-line of case law decisions that shows the court's zero-tolerance for police officers denigrating defence lawyers and their advice to clients. The SCC has given the police leeway in the right to remain silent but not about denigrating defence lawyers. One of the biggest mistakes you can make during an interrogation is criticizing a defence lawyers's advice.

R. v. Côté involved a homicide. The accused was charged with second degree murder. The SCC acquitted her. The statement to police was excluded as well as the physical evidence. The accused walked away scot-free because of what the SCC described as "systemic disregard for the law and the Constitution" and, "disturbing and aberrant police behavior."

Click here for this article. 



October 2010             Right to Silence versus The Caution - The mystery 

 

by Gino Arcaro M.Ed., B.Sc.

Here's an open-book test:

  1. Find the phrase "Right to Silence" in a Canadian statute.
  2. Where is the phrase "Right to Silence" printed in the Charter?
  3. What statute explains what to say to an arrested person about the "Right to Silence?"


Answers:

  1. You won't find it.
  2. Nowhere.
  3. None.

Imagine being a police officer. You arrest a person for a major crime. You intend to interrogate him to get the all-important confession. What is the exact "Right to Silence" instruction? How exactly do you say, "You have to right to remain silent" and "You don't have to talk to me."

Incredibly, there is no statutory law that answers these questions. Instead, you have to sift through mounds of case law to find out exactly how to tell an arrested person that s/he does not have to talk to you.

 

 Click here for this article. 



 

November 2010         Oct. 8, 2010 - Landmark Decision Day  Part I

 

by Gino Arcaro M.Ed., B.Sc.

No free trade of constitutional rights. Canada will not adopt the American rule-book on Miranda Rights.

On Oct. 8, 2010, the Supreme Court of Canada released a trilogy of case law decisions regarding interrogations related to major crime investigations. All three cases involved major crimes - two homicides and a series of attacks on women. The decisions confirmed that:

  1. An adult offender does not have the right to have a lawyer present during interrogation.
  2. The police may ignore the suspect's decision to remain silent while trying to change the suspect's mind about that decision. Invoking the right to silence is not absolute or final.
  3. Adult offenders don't have the right to a second opinion - a re-consultation - after they speak to a lawyer, if the nature of the investigation remains unchanged, e.g., the victim dies, thereby changing the severity of the offence.

November 2010         No cross-border right to lawyer/right to silence:  Oct. 8, 2010 – Landmark Decision Day      Part 2 

 

R. v. Sinclair(2010)[1]SCC 

 

by Gino Arcaro M.Ed., B.Sc.

 

The Problem. How many initial legal consultations are enough after a suspected murderer is arrested? One, two…more? And, how many more consultations are enough after  suspected murder has received initial advice from a lawyer? One more….two more? Can a suspected murder interrupt an interrogation and demand more consultation? And, can a suspected adult murderer direct who will be present during an interrogation…can he successfully demand that his lawyer be present during interrogation?

The Supreme Court of Canada answered these questions in R. v. Sinclair(2010) – generally, one consultation is enough and ‘no’ to defence lawyers being present during interrogations.

And, ‘no’ the Americanization of Canadian criminal justice.

Incredibly, the Supreme Court of Canada never directly ruled on the question of lawyers presence during an adult interrogation – not once in the history of the Canadian criminal justice system…until Oct. 8, 2010.


Click here for this article. 



 

May 2009       Admissibility of young person's confession. Traditionally unlawful inducements are not always strong enough to exclude. 

 R. v. S.E.V. (2009)

By Gino Arcaro M.Ed., B.Sc.

I. The Pendulum Swings

The sec. 24(2) Charter pendulum has not always swung fairly. The pendulum was unbalanced for years, in favour of the defense. Growing evidence shows the pendulum swing is balancing out.

II. Interrogation Reality

Among the countless interrogation challenges facing investigators, the following are three facts of reality:

  1. Interrogation strategies change during interrogation, sometimes from one extreme to another.
  2. Release is a prominent factor that affects a suspect's decision whether to confess or not.
  3. A series of inducements do occur during most interrogations. The key is the strength of the inducment and the relationship between that strength and the decision to confess.

These issues all occurred in R. v. S.E.V. (2009).

 

  Click here for the complete article.       



 

January 2009             The 24-hour Clock: The relationship between sec. 503 C.C. and the duration of an interrogation   Part 1

 

By Gino Arcaro M.Ed., B.Sc.


In his new article for the Member's page, Gino Arcaro discusses how long an interrogation can last according to Canadian law.

I.               Interrogation Time limit

What is the time limit for a police interrogation?

How long can the police interrogate an arrested person?

There is no concrete time limit in Canadian law. The answer is found in the combined effect of:

  1.                sec. 503 Criminal Code,
  2.               sec 515(11) C.C.,
  3.            sec. 9 Charter, and
  4.             R. v. Oickle (2000) SC.C.
  5.              R. v. Storrey (1990) SC.C.
  6.           R. v. Singh (2007) SC.C.
  7.           R. v. Manninen (1987) SC.C.

Click here for the complete decision.