La Cour d’appel de l’Ontario rappelle qu’il est illégal pour des policiers d’offrir une contrepartie afin d’obtenir une déclaration d’un suspect. Toutefois, la défense n’a pas à démontrer que les policiers ont explicitement offert cette contrepartie. En effet, le juge du procès doit analyser toutes les circonstances et exclure une déclaration si les policiers ont implicitement offert une contrepartie :
[17] In Oickle, at paras. 53-54, Iacobucci J. held that phrases like “it would be better if you told the truth” do not automatically require exclusion, but rather require exclusion only where, in the entire context of the confession, the circumstances reveal an implicit threat or promise. Here, the comments made by the officer were far more coercive than words to the effect of “it would be better” to talk. In the entire context of the appellant’s interrogation and statement, the officer’s comments went beyond spiritual exhortations, or appeals to conscience and morality. They amounted to both threats and promises.
[18] The application judge erred in discounting the inducements and threats on the basis that no police or court action was promised in return. Properly conceived, the interviewing officer’s veiled inducements of decreased jeopardy for speaking and threats of increased jeopardy for silence gave rise to an implicit quid pro quo.
[19] Given this quid pro quo, the application judge should have gone on to assess whether, in all the circumstances, the inducements and threats “standing alone or in combination with other factors, are strong enough to raise a reasonable doubt about whether the will of the subject has been overborne”: Oickle, at para. 57.
[20] In so doing, the application judge was required to consider the characteristics of the individual suspect: Oickle, at para. 42. Yet, the application judge did not consider the effect of the threats and inducements upon a 19-year-old aboriginal youth who had attempted to assert his right to silence on at least 6 occasions during the interview, and who asked several times to return to his cell.
[21] In light of the application judge’s errors, it falls to this court to assess whether the appellant’s statement was voluntarily made despite the inducements and threats. I am not persuaded beyond a reasonable doubt that the statement was voluntarily made, taking into account the appellant’s age, his personal circumstances, his futile assertions of the right to silence, his requests to return to his cell, and the impact upon him of the officer’s repeated statements that, unless the appellant spoke up, he was going to take the fall for a first degree murder he had not committed.
[22] Having reached this conclusion, it is unnecessary for me to consider the other alleged errors identified by the appellant.
[23] I would allow the appeal, set aside the convictions and order a new trial.
* Voir aussi ici.
