R v Bunn

R. v. Bunn

2001 MBCA 12
Manitoba Court of Appeal — Twaddle J.A. (Philp and Monnin JJ.A. concurring) | January 24, 2001

Background

Charles Bunn was suspected of a commercial break-and-enter and taken to a district police station for questioning. The officers made a deliberate choice not to bring notebooks, audio recording equipment, or video equipment into the interview room. One officer explained that bringing notebooks would make suspects less "at ease" and less likely to speak. During the 25-minute interview, no contemporaneous notes were taken. Afterwards, the officers sat down together and reconstructed what they remembered, writing down "words to the effect of what was said."

The reconstructed notes contained Bunn's alleged incriminating statements, but made no mention of him expressing a desire to be out for Christmas (ten days away) or any discussion about his possible release on bail. However, during the voir dire (hearing to determine admissibility), the officers admitted these topics had been discussed — they just claimed it happened after the incriminating statements were made. Bunn testified that he expressed his wish to be home for Christmas early in the interview, and that he only made false admissions because officers told him he'd be released on a promise to appear if he gave a statement.

Issues

1. Whether the trial judge erred by placing the burden on the accused to prove his statements were induced by police promises
2. Whether the absence of contemporaneous recording should affect the credibility assessment of police testimony

The Confession Rules and Burden of Proof

The Court of Appeal clarified a fundamental principle: the Crown must prove beyond a reasonable doubt that confessions were voluntary — not the other way around. A confession is involuntary if it results from "fear of prejudice" or "hope of advantage" held out by persons in authority. The accused doesn't need to prove they were misled; it's enough if there's reasonable doubt about whether police induced the belief that confessing would be advantageous.

The trial judge made a critical error by finding he was "not prepared to find that they would have deliberately misled him." This flipped the burden of proof. Even if no explicit promise was made, if the accused reasonably believed confessing would help them, and there's doubt about whether police created that impression, the statement must be excluded.

The Problem with Reconstructed Evidence

The Court strongly criticized the practice of questioning suspects without contemporaneous recording. While such statements aren't automatically inadmissible, the absence of recording "greatly favours the growing practice of recording police interrogations, preferably by videotape." Officers who deliberately avoid recording risk adverse credibility findings, especially regarding the sequence of events. The excuse that recording makes suspects "less at ease" was rejected — if universally accepted, it would eliminate incentives for proper documentation that "can greatly assist the trier of fact in assessing the confession."

Key Takeaway

Even the trial judge's own findings supported excluding the confession.

The judge found Bunn "may well have had the impression" that cooperating would lead to his release, and that "it would be a good idea for him to make a statement because then he could get out." This created reasonable doubt about whether police induced the statements, which should have resulted in exclusion and acquittal.