Interviewing suspects: the right to counsel, voluntariness and PEACE

Cody Marsh was arrested at his apartment on Elm Street at 2:10 p.m. on February 20, thirteen days after the robbery. Detective Whitlock told him he was under arrest for the robbery of Northgate Convenience, told him he had the right to retain and instruct counsel without delay, gave him the toll-free number for Legal Aid duty counsel, and asked whether he wanted to call a lawyer. He said he did. Desjardins tells the class that by the time Ferreira sat down with Marsh in the interview room, the most important decisions about whether his statement would ever be heard in court had already been made. This lesson covers the law that governs suspect interviews, the risk of false confessions, and the PEACE model of investigative interviewing.

Why suspect interviews matter, and why they go wrong

A suspect's own account can be powerful evidence. It can explain innocent facts that look suspicious, identify other witnesses or evidence, lead to the recovery of property, or contain admissions that corroborate other evidence. But confessions are also a leading cause of wrongful convictions. Studies of exonerations have found that a substantial share involved false confessions or admissions, often from young people, people with intellectual disabilities or mental illness, and people interviewed for many hours, told false things about the evidence, or offered inducements. Innocent people confess for reasons that make sense in the moment: to end an exhausting interview, because they believe the evidence against them is overwhelming and they will be treated more leniently, or because they come to doubt their own memory. A false confession is also dangerous because juries find confessions very persuasive, and once police have one, they often stop looking for the real offender.

For these reasons, the law surrounds suspect interviews with protections, and modern interview training emphasizes gathering information rather than obtaining a confession. Desjardins writes the aim on the board: 'The purpose of a suspect interview is to obtain accurate and reliable information, not to get a confession.'

The Charter rights on arrest

Section 10(a) of the Charter requires that a person who is arrested or detained be informed promptly of the reasons, and section 10(b) gives them the right to retain and instruct counsel without delay and to be informed of that right. Under R. v. Bartle (1994) and R. v. Suberu (2009), police must tell the person about the right immediately on arrest or detention, including the availability of legal aid and free duty counsel. If the person asks to speak to a lawyer, police must give them a reasonable opportunity to do so in private and must hold off questioning until they have had that opportunity. Section 7 protects the right to silence, and the common law confessions rule requires the Crown to prove beyond a reasonable doubt that any statement to a person in authority was voluntary.

At the station, Marsh spoke privately by phone with duty counsel for eleven minutes, from 3:05 p.m. Ferreira began the interview at 3:40 p.m., in a recorded interview room. She confirmed on video that he had spoken to a lawyer, reminded him of the reasons for the arrest, and gave the standard caution: that he did not have to say anything, that he had nothing to hope from any promise or fear from any threat, and that anything he said could be used as evidence. She also told him that if he had spoken to any other officer, she did not want that to influence whether he spoke to her.

Continuing after the right to counsel and silence

In R. v. Sinclair (2010), the Supreme Court of Canada held that section 10(b) does not give a detained person the right to have a lawyer present during the interview, and does not generally require police to stop and allow a second consultation. A further consultation is required only when circumstances change, such as a new procedure like a lineup or polygraph, a change in the person's jeopardy, or reason to believe the person did not understand the first advice. In R. v. Singh (2007), the Court held that police may continue to question a person who has said they do not want to talk, but persistent questioning in the face of repeated assertions of silence can make a statement involuntary. A youth under 18 has additional protections under section 146 of the Youth Criminal Justice Act, including the right to have a lawyer and a parent or other adult present, and any waiver must be recorded.

Voluntariness and the confessions rule

The confessions rule, restated in R. v. Oickle (2000), asks whether a statement was voluntary in light of all the circumstances. Courts look at threats or promises, especially an offer of leniency in exchange for a statement; oppression, such as denying food, sleep, clothing or medical care, excessive questioning or aggressive tactics; whether the person had an operating mind, meaning enough awareness to understand what they were saying and that it could be used against them; and police trickery so serious that it would shock the community, such as an officer posing as a lawyer or chaplain. Ordinary persuasion, confronting a person with evidence, and expressing sympathy are allowed, but a court looks at the whole interview. The burden is on the Crown to prove voluntariness beyond a reasonable doubt. Desjardins tells the class that Port Ardent does not allow officers to lie about evidence, threaten consequences, or suggest leniency in exchange for a statement, whatever the courts might allow, because those tactics produce unreliable statements.

Accusatory interviewing and the PEACE model

For decades, many North American officers were trained in accusatory methods, the best known being the Reid technique, which moves from a non-accusatory interview to an interrogation in which the officer confronts the suspect with an assertion of guilt, discourages denials, and develops themes that minimize the moral seriousness of the offence or maximize the consequences of not confessing. Critics argue that these methods increase the risk of false confessions, and in 2017 one of the largest training firms in the United States announced it would stop teaching the Reid method. Canadian courts have criticized accusatory interviews in several cases, and many Canadian services have adopted the PEACE model or similar information-gathering approaches.

PEACE was developed in England and Wales in the early 1990s after several wrongful convictions based on false confessions. The letters stand for the stages of the interview. Planning and preparation: the interviewer reviews the evidence, identifies what is known and what needs to be explained, decides what to disclose and when, and plans the topics. Engage and explain: the interviewer introduces everyone, explains the purpose and the suspect's rights, and builds rapport. Account, clarification and challenge: the suspect gives their account in their own words, the interviewer probes each part of it with open questions, and then, where the account conflicts with the evidence, raises the inconsistencies and asks the suspect to explain them, without accusing or pressuring. Closure: the interviewer summarizes, allows the suspect to add or correct anything, and explains what happens next. Evaluation: after the interview, the investigator assesses the information obtained against the other evidence and reviews their own performance.

The Marsh interview

Ferreira had planned the interview carefully. She listed what Marsh would need to explain: his DNA on the inside cuff of a glove found on the robber's escape route, the grey hatchback registered to him with a dented rear bumper, and the online listings for cigarettes of the same brand posted from an account linked to his phone number two days after the robbery. She decided to ask for his account of the evening of February 7 before disclosing any of it, so that his account would not be shaped by what he knew the police had.

Marsh said he had been at home all evening playing video games. Ferreira asked open questions about the evening: what he ate, who he spoke to, when he went to bed. Then she asked about his car, and he said he had lent it to a friend that week but would not give the friend's name. When she showed him a photograph of the glove, he said he had lost a pair of black gloves 'a few weeks ago, maybe at the bus stop'. Ferreira did not suggest he was lying. She asked when and where he had last had the gloves, and recorded the answer. When she asked about the cigarette listings, Marsh said, 'I've got nothing else to say.' Ferreira acknowledged that, explained that she would tell him what else the police had so he could respond if he chose, described the listings and the vehicle evidence briefly, and asked if he wanted to say anything about them. He repeated that he had nothing to say. She ended the interview at 4:52 p.m.

# Interview timeline from the recording log: check total time and the
# longest stretch of questioning without a break.
log = [
    ("15:40", "start: rights confirmed, caution"),
    ("16:05", "break: water, washroom"),
    ("16:12", "resume: account of the evening"),
    ("16:52", "end"),
]
def m(t):
    h, mi = map(int, t.split(":")); return h * 60 + mi
start, end = m(log[0][0]), m(log[-1][0])
questioning = [(m(log[0][0]), m(log[1][0])), (m(log[2][0]), m(log[3][0]))]
print("total elapsed:", end - start, "minutes")
print("questioning blocks:", [b - a for a, b in questioning], "minutes")
print("longest block:", max(b - a for a, b in questioning), "minutes")

total elapsed: 72 minutes
questioning blocks: [25, 40] minutes
longest block: 40 minutes

The recorded interview lasted 72 minutes, with a seven-minute break; the longest continuous block of questioning was 40 minutes. Desjardins notes that interview length alone does not make a statement involuntary, but the recording, the breaks, and the offers of food and water all help prove that the statement was given freely. Marsh's statement contained no confession, but it was still useful: his explanations about the car and the gloves could be checked, and each one later proved false. The friend he would not name did not exist in his phone contacts, and his own phone placed him near Harbour Road at 9:40 p.m. on February 7, as lesson 10 explains.

Vulnerable suspects, interpreters and recording

Some suspects need additional care. Young people, people with intellectual disabilities or mental illness, people under the influence of alcohol or drugs, and people who are exhausted or in pain are more likely to misunderstand their rights, to agree with suggestions, and to give unreliable answers. Interviewers should check understanding by asking the person to explain their rights in their own words, use plain language, keep questions short, take regular breaks, and consider delaying the interview until an intoxicated person is sober. If a person's first language is not English or French, or they are Deaf or hard of hearing, a qualified interpreter should be used for the rights and the interview, not a family member or a bilingual officer from the case, because a misunderstanding of the rights can make the whole statement inadmissible.

Recording the whole custodial interview, from the moment the person enters the room until they leave, protects everyone. It shows exactly how the rights were given and understood, what was said and how, and how the person was treated. It also protects officers against false allegations. Recordings should capture the faces of both the interviewer and the suspect, and the room should have a clock visible or a time stamp on the recording. Any conversation about the case outside the recording, such as in the car or the cells, should be avoided, and if the person starts talking about the case outside the recording, the officer should write down what was said, word for word, and offer to continue on video.