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What is a Statement or Confession?

In a technical criminal law sense a "statement" or "confession" only refers to something said to "a person in authority" which can later be used at trial against the person who said it. Remarks made to third-parties might still amount to confessions, but don't face the same legal hurdles to admissibility at trial.

Why Challenge a Statement or Confession?

There are lots of conditions that must be fulfilled for a statement or confession to be admissible at a criminal trial, due to the fundamental Canadian Charter of Rights and Freedoms rights to legal counsel and the protection against self-incrimination, as well as common law requirements regarding voluntariness of statements. 

Experience and studies have now proven that lots of people confess to things they never did given sufficient psychological pressure. Confessions are for the most part not an especially reliable indicator of guilt unless there is significant corroborating evidence confirming them. Lie detector or polygraph machines occasionally employed in aid of obtaining confessions can at best be considered junk science.

How to Challenge a Statement of Confession: Two Winning Trial Strategies

There are two principle means of challenging the evidentiary admissibility of a statement or confession:

  1. by alleging a breach of Canadian Charter of Rights and Freedoms right to counsel and protection against self-incrimination (the "I never got to call a lawyer" problem);

  2. by arguing that the statement was involuntary and thus should have no probative value, because:

    • it wasn't the product of an operating mind;

    • it was only elicited after threats were made by a person in authority;

    • it was only made after promises were made by a person in authority;

    • there are other public policy reasons to exclude it from evidence.

When to Challenge a Statement or Confession?

The admissibility of statements is challenged at trial close to the time they are sought to be tendered into evidence through two means:

  1. a pre-trial Charter defence motion to exclude the statement if a violation of rights to counsel or to remain silent is being claimed;

  2. a voir dire held by the court at the request of the Crown to test voluntariness at the time the statement is presented. The voir dire operates as a sort of trial within a trial, facilitating the court to hear the statement and test its voluntariness without it falling into the general trial evidence prior to a ruling on voluntariness being made by the trial judge.

Why Retain Our Firm to Challenges Your Statement or Confession?

The firm’s Managing Lawyer Gordon S. Campbell has taught statement taking courses to law enforcement officers throughout Canada, and published three books on the subject. He has over two decades of experience in Canadian trial and appeal courts dealing with the complexities of statement and confession admissibility issues.