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
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.
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."
October 2010 Right to Silence versus The
Caution - The mystery
by Gino Arcaro M.Ed., B.Sc.
Here's an open-book test:
Answers:
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.
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:
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.
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:
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:
Click here for the complete decision.