Police Questioning in the Charter Era: Adjudicative versus Regulatory Rule-Making and the Problem of False Confessions
(2012) 57 Supreme Court Law Review (2d) 263
Unsettled Legacy: Thirty Years of Criminal Justice under the Charter, p. 297, Benjamin L. Berger and James Stribopoulos, eds., LexisNexis, 2012
30 Pages Posted: 13 Dec 2012
Date Written: December 12, 2012
Unlike in the areas of detention and search, Parliament has played no role in regulating the questioning of adult criminal suspects by police. This paper examines the implications of this legislative silence. Critics of the courts’ use of the ancillary powers doctrine in the law of detention and search have argued that the optimal regulation of police investigative practices requires robust legislative input. I argue that the same is true of police questioning. But given the improbability that this will happen, I argue that appellate courts should adopt a more robustly “regulatory” (as opposed to “adjudicative”) approach to both the common law confessions rule and section 10(b) of the Charter. I then explore how such an approach could better address the chief policy issue raised by police questioning: false confessions.
Keywords: False confessions, criminal procedure, charter of rights, police questioning, Reid technique, right to counsel, 10(b), confessions rule, voluntary confessions rule
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