R. v. Rothman (1981), 35 N.R. 485 (SCC)
MLB headnote and full text
R. v. Rothman
Indexed As: R. v. Rothman
Supreme Court of Canada
Laskin, C.J.C., Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer, JJ.
March 2, 1981.
Summary:
This case arose out of a charge against the accused of possession of hashish for the purpose of trafficking. After his arrest the accused refused to give a statement to the police and was put in a cell. An undercover policeman was put in the cell with him and the accused, not knowing that he was talking to a policeman, made statements in which he admitted his guilt. At trial the trial judge refused to admit into evidence the statement of the accused to the undercover policeman and acquitted the accused. The Crown appealed.
The Ontario Court of Appeal in a judgment reported 42 C.C.C.(2d) 377, allowed the appeal and ordered a new trial. The accused appealed.
The Supreme Court of Canada dismissed the appeal. The court held that the undercover policeman was not a person in authority over the accused, where the accused did not know he was a policeman, and that therefore the accused’s statement was admissible without any requirement for the Crown to prove that it was voluntary. The court held that the test of a person in authority was a subjective one. See paragraphs 7 to 11 and 53 to 54. The court held that, even if the undercover policeman was a person in authority, the statement made to him was voluntary. See paragraphs 14 to 49.
Lamer, J., agreeing in the result, was of the opinion that a statement made to a person in authority must not only be made voluntarily, but also must not be elicited under circumstances which would bring the administration of justice into disrepute. Lamer, J., was of the opinion that the tricking of the accused was not an impropriety which would bring the administration of justice into disrepute. See paragraphs 61 to 93.
Estey, J., dissenting, in applying the same standards as Lamer, J., was of the opinion that the tricking of the accused subverted the accused’s expressed decision not to make a statement and brought the administration of justice into disrepute, rendering the statement inadmissible. See paragraphs 95 to 116.
Criminal Law – Topic 5353
Evidence and witnesses – Confessions and voluntary statements – Who is person in authority – The Supreme Court of Canada held that an undercover policeman, who was placed in a cell with the accused and tricked the accused into admitting his guilt, was not a person in authority over the accused, where the accused was unaware he was talking to a policeman – The court held that the test of a person in authority was a subjective one – See paragraphs 7 to 11 and 53 to 54.
Criminal Law – Topic 5355
Evidence and witnesses – Confessions and voluntary statements – Whether statement was made freely and voluntarily – After his arrest the accused refused to give a statement to the police and was put in a cell – An undercover policeman was placed in the cell with the accused and he succeeded in inducing the accused, who did not know he was talking to a policeman, to admit his guilt – The Supreme Court of Canada held that, even if the policeman was a person in authority over the accused, which he was not, the accused’s statement to the policeman was made voluntarily – See paragraphs 14 to 49 and 61 to 93.
Evidence – Topic 4321
Witnesses – Privilege – Self-incrimination – General – The Supreme Court of Canada held that the privilege against self-incrimination is concerned only with testimonial compulsion of a witness in court and was inapplicable to statements made by an accused out of court – See paragraphs 12 to 13 and 59 to 60.
Cases Noticed:
Ibrahim v. The King, [1914] A.C. 599, appld. [paras. 3, 5, 45, 57].
Boudreau v. The King, [1949] S.C.R. 262, appld. [para. 6].
R. v. Fitton, [1956] S.C.R. 958, appld. [paras. 6, 20, 107].
R. v. Pettipiece (1972), 7 C.C.C.(2d) 133 (B.C.C.A.), appld. [para. 9].
R. v. Muise (No. 1) (1975), 11 N.S.R.(2d) 104; 5 A.P.R. 104 (N.S.C.A.), appld. [para. 9].
Metenko v. R. (1951), 101 C.C.C. 312 (Que. C.A.), appld. [para. 9].
R. v. Stewart (1980), 21 A.R. 300 (Alta. C.A.), appld. [para. 9].
R. v. Marcoux and Solomon, [1976] 1 S.C.R. 763; 4 N.R. 64, appld. [paras. 12, 59, 109].
Piché v. The Queen, [1971] S.C.R. 23, refd to. [paras. 18, 98].
R. v. Ward, [1979] 2 S.C.R. 30; 25 N.R. 514; 3 C.R.(3d) 153, consd. [paras. 18, 27, 107].
R. v. Fitton, [1956] O.R. 696, consd. [para. 19].
R. v. Horvath, [1979] 2 S.C.R. 376; 25 N.R. 537, consd. [paras. 23, 66, 104].
R. v. Nagotcha, [1980] 1 S.C.R. 714; 32 N.R. 204, consd. [para. 31].
R. v. Santinon (1973), 11 C.C.C.(2d) 121; 21 C.R.N.S. 323; [1973] 3 W.W.R. 113, refd to. [para. 34].
R. v. Alward and Mooney, [1978] 1 S.C.R. 559; 16 N.R. 127; 18 N.B.R.(2d) 97; 26 A.P.R. 97, affirming 15 N.B.R.(2d) 551; 18 A.P.R. 551; 32 C.C.C.(2d) 416, consd. [paras. 36, 64].
R. v. McLeod (1968), 5 C.R.N.S. 101 (Ont. C.A.), dist. [para. 46], consd. [para. 112].
Moore v. The Queen, [1979] 1 S.C.R. 195, refd to. [para. 60, footnote 15].
R. v. Warickshall (1783), 1 Leach, 263, consd. [para. 63, footnote 20].
R. v. Wray, [1971] S.C.R. 272, refd to. [para. 69, footnote 27].
R. v. Cook, [1959] 2 Q.B. 340, refd to. [para. 69, footnote 27].
Mohamed v. The King, [1949] A.C. 182, refd to. [para. 69, footnote 27].
Stirland v. D.P.P., [1944] A.C. 315, refd to. [para. 69, footnote 27].
Maxwell v. D.P.P., [1935] A.C. 309, refd to. [para. 69, footnote 27].
R. v. McCorkell, Notes and Comments (1964-5), 7 Crim. L.Q. 395, consd. [para. 72, footnote 31].
Commissioners of Customs and Excise v. Harz et al., [1967] 1 A.C. 760 (H.L.), consd. [para. 99].
DeClercq v. The Queen, [1968] S.C.R. 902, consd. [para. 101].
R. v. Sang, [1980] A.C. 402, consd. [para. 109].
R. v. Frank (1969), 69 W.W.R.(N.S.) 588, consd. [para. 112].
Statutes Noticed:
Canada Evidence Act, R.S.C. 1970, c. E-10, sect. 4(5), sect. 5(2) [para. 109].
Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 178.16 [para. 86].
Authors and Works Noticed:
Allen, Due Process and State Criminal Procedures: Another Look (1953), 48 Nw.U.L.Rev. 16, 19 [para. 103].
Del Buono, Vincent, Voluntariness and Confessions: A Question of Fact or Question of Law? (1976-77), 19 Crim. L.Q. 100 [paras. 61, 63].
Freedman, S., Admissions and Confessions, in R.E. Salhany and R.J. Carter, Ed., Studies in Canadian Criminal Evidence (1972) [paras. 70, 102].
Harvard Law Review, vol. 79, p. 935 (1966), Developments in the Law – Confessions [para. 111].
Hutchinson, A.C., and Withington, N.R., Horvath v. The Queen: Reflections on the Doctrine of Confessions (1980), 18 Osgoode Hall L.J. 146 [para. 61].
Kaufman, The Admissibility of Confessions (3d Ed. 1979), pp. 81-84 [para. 53].
Maguire, Evidence of Guilt (1959), p. 109 [para. 103].
Martin, G.A., The Admissibility of Confessions and Statements (1962-63), 5 Crim. L.Q. 35 [para. 61].
Phipson on Evidence (12th Ed. 1976) [paras. 5, 99].
Ratushny, Self-Incrimination; Nailing the Coffin Shut (1977-78), 20 Crim. L.Q. 312 [para. 61].
Ratushny, Unravelling Confessions (1970-71), 13 Crim. L.Q. 453 [para. 61].
Salhany, R.E., and Carter, R.J., Studies in Canadian Criminal Evidence (1972) [paras. 70, 102].
Wigmore on Evidence [paras. 98, 102].
Williams, Glanville, The Proof of Guilt (2d Ed. 1958), pp. 37-38 [para. 109].
Counsel:
Scott T. Milloy, for the appellant;
E.G. Ewaschuk, Q.C., and J.A. Pethes, for the respondent.
This case was heard on May 5, 1980, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, RITCHIE, DICKSON, BEETZ, ESTEY, McINTYRE, CHOUINARD and LAMER, JJ., of the Supreme Court of Canada.
On March 2, 1981 the judgment of the Supreme Court of Canada was delivered and the following opinions were filed:
MARTLAND, J. – see paragraphs 1 to 50;
LAMER, J. – see paragraphs 51 to 94;
ESTEY, J., dissenting – see paragraphs 95 to 116.
RITCHIE, DICKSON, BEETZ, McINTYRE and CHOUINARD, JJ., concurred with MARTLAND, J.
LASKIN, C.J.C., concurred with ESTEY, J.
