STATEMENT TAKING CANADIAN STYLE or HOW TO MAKE YOUR DAY MORE DIFFICULT RCMP STYLE!!!

Introduction

While each statement taken by an investigator is an individual effort reflecting the skills and ability of the investigator, some basic guidelines should be followed for every statement. The guidelines apply to ALL statements.

Although the investigator may add points beyond the basic guidelines and, in fact, should make adjustments for cases where Young Offenders are involved, where specific legislation provides directions, where handicapped persons are involved, or where translators are included, the basic steps remain intact and apply for all cautioned/warned statements.

The nine basic steps to be followed by an investigator for all cautioned/warned statements are provided. The descriptions used for the steps may vary from region to region, but they remain applicable and the sequence of steps remains the same.

Two of these steps - Police Warning and Charter of Rights Notice - do not apply to the taking of statements from witnesses, but because the investigators must be ready to apply these when required, they have been included in the basic steps. If, for example, a witness at a crime scene suddenly confesses to the crime, then warnings must be given.

Format

Before dealing with the point-by-point layout of statements, it is necessary to review some of the preliminaries required before taking a statement.

Obviously paper and pen will be used when a written statements is to be taken. If a tape recorder is used, a transcript should be typed for signature. If an oral statement is taken, notes should be made of the statement as soon thereafter as possible. If the suspect or accused person gives a written statement and does not wish to sign the statement after reading it, a notation should be made to that effect. However, the lack of a signature is only one element for the court to weigh to determine the admissibility of a statement.

Interviewing as well as interrogation techniques and skills are separate from this learning package; however, the advantages of the statement that is obtained may be lost if the improper techniques were used to obtain it. The admissibility of statements will be covered in subsequent modules, dealing with the definition of: Voluntary Inducements, and the Judges' Rules.

Statements may be written, printed or typed. They may also be given orally, and recorded by audio and/or video equipment. This would be the preferred method for lengthy warned statements, and those involving serious crimes. Hand written warned statements should always be written by the police officer, ensuring that all answers are recorded verbatim.

A recommended practice is to have the interviewee (witness/suspect/accused) and the interviewer/investigator separated from distractions for the purpose of obtaining a statement. Normally a private room free from interruptions is sought. This applies to statements involving motor-vehicle accidents to murder investigations. The ideal location for a warned statement interview is at the detachment in an interview room containing a clean desk, two chairs and no distractions on the walls. The legal aid phone list should be readily available to the suspect.

Statements should be taken as soon after the incident as possible so that events are fresh and clear in the memory of the person being interviewed. Technical aids should be considered and used if suitable. The use of video cameras to record statements provides corroboration of the statement being voluntary, in the best way possible. The video tape also adds sight and sound to the actual writing or taking of a statement. It allows the court the opportunity to examine the evidence dealing with the statement in a manner never available before, almost equal to being there. As new technical aids become available, they should be added to the arsenals of all investigators.

Step 1: Time and Date

The first step in taking any statement is to start with:

Time Started
Normal method of telling time (e.g. 6:30 p.m. instead of 1830).
Use a.m. or p.m.
Date
R.C.M.P. Date format is quite acceptable.
Day of week/Day of month/Month (in letters, not numbers)/Year.
e.g. Friday 13th June, 1997.
Location
Address, including room number in building.
e.g. Interview Room, Police Office: Burnaby, B.C.
The time shown should clearly state the time when the statement-taking started. Many courts question the length of an interview, or the length of time involved in taking a statement. Even though this does not normally apply to a casual witness, the practice is important and inoffensive that investigators are encouraged to automatically record the time this way. The investigator must also record the date and the location.

Ensure that the person giving the statement knows what time is written. When the witness, suspect or accused reads the statement will he/she have to ask you about the way the date is written? Similarly,if the investigator marks the date as 93-10-30, the suspect or accused must know what that indicates. It is preferable to write the time and date in a common manner known to the suspect or accused. If the suspect or accused uses a 24-hour clock, then the statement should also use 24-hour time. Similarly, the date should be recorded in a common manner. It is useful to have the day of the week recorded, for reference purposes, as it may be helpful in recalling events at a later time.

When recording the location, in addition to noting the address of the building on your statement, record in your notebook information about the size of the room, position of the furniture, sitting positions, etc. Use a diagram to show layout of the room and where everyone is seated. Record description of suspect in notebook, as well as details of all conversation leading up to warned statement. Include suspect's sobriety and apparent mental state (i.e. is he/she relaxed, nervous, etc.) and physical description which may help the investigator to locate the suspect at a later date.

Step 2: Identification

The second step, and probably the most important in terms of follow-up, is to list the name of the suspect or accused (ask for the name used on their birth certificate) showing the present addresses where he/she/may be located and also any addresses where he/she may be located in the future. This should include:

Mailing Addresses and Living Addresses

Include particulars to help locate the suspect or accused for future follow-up by adding identification, such as date of birth and driver's license number if the incident was a motor vehicle accident.

In this step, describe the matter that is being investigated. If it is a motor vehicle accident, describe the accident for future quick reference. If the statement is taken from an accused person, the charge that is being investigated should be clearly shown. If the accused is a young offender, particulars relating to his/her guardian or parents should be recorded in the statement. A notation should be made as to whether the parent or guardian was present during the statement-taking.

Name JOHN James SMITH (DOB 59-07-17)
Address (Mailing) P.O. Box 50, Burnaby, B.C.
(Home) Room 10, Hilton Hotel, Burnaby, B.C.
(Business) Not employed at present
N.B. Moving to Room 15, Delta Hotel, Vancouver B.C.: Sept. 1st, 1995

Step 3: Police Warning

** This step applies ONLY to suspects/accused persons, not witnesses **

While interviewing a witness, you suddenly suspect that he/she has committed the offence under investigation. Immediately you should stop taking the witness statement and the Police Warning must then be given to the "witness" who now becomes a suspect. This change in status is decided by the investigator when the witness says something that indicates he/she was implicated in the commission of the offence.

It is very important not to administer the Police Warning every time an investigator interviews a witness. Citizens who witness an incident and come forward to give a statement do need to be warned.

The fact that a suspect was given the Police Warning should be recorded in the statement itself. Most detachments have preformatted first page forms for a warned statement. If these are available, use them. Ensure you have the most recent format, as it changes regularly with new case law. If you are not using a preformatted first page, the suspect's rights (including reason for arrest), and the police caution should be written out in their entirety. All comments, questions and answers need to be recorded verbatim including those of the interviewer, and any other persons present during the interview.

(Operational Manual II.7.F.2.a): "before taking a statement from a suspect/accused, give the following warning if it is consistent with the requirements of courts in your province:

You need not say anything. You have nothing to hope from any promise or favour and nothing to fear from any threat, whether or not you say anything. Anything you do or say may be used as evidence."

Not giving a police caution/warning or the Charter of Rights to a suspect before a statement is obtained may result in a dismissal of the statement. (e.g. A suspect in a B&E gave a statement but hadn't been cautioned/warned or Chartered). The statement, in all likelihood, wouldn't be admissible. Sec 24(2) of the Charter indicates that in some instances, the statement may be admissible, as long as the administration of justice is not brought into disrepute. This is by no means an excuse to disregard either the law or policy.

There will be times during some investigations when you will question a suspect who has already been questioned or who has been in contact with another person in authority. In these instances, it will be necessary to administer a secondary warning. For instance, a suspect in relation to a break and enter is arrested by one member but is questioned by another member. In this case, the secondary warning must be administered. An example of the secondary caution is as follows:

"If you have spoken to any police officer (including me) with respect to this matter, who has offered you any hope of advantage or suggested any fear of prejudice should you speak or refuse to speak with me (us) at this time, it is my duty to warn you that no such offer or suggestion can be of any effect and must not influence you or make you feel compelled to say anything to me (us) for any reason, but anything you do say may be used in evidence."


Step 4: Charter of Rights Notice

If the person being interviewed changes from a witness with no knowledge of a crime to a suspect, he/she must immediately be made aware of his/her\rights under Section 10(b) of the Charter of Rights before a statement is taken or before a statement is continued to be taken.

To ensure compliance with the Charter of Rights at a Voir Dire (a trial within a trial) the investigator must embody the actual Charter Notice used in this statement and have the suspect or accused acknowledge that he/she understands his/her rights by signing below the written notice given. When the Charter of Rights Notice is used, it is necessary to explain and re-explain if the suspect or accused person does not understand. Courts have ruled that police officers must ensure through repeated explanations that the accused person does understand his/her rights under this step. These are to be documented on the statement and in your notebook.

Statements obtained in violation of this provision will most likely not be accepted by the court, and evidence recovered as a result of the statement will probably be excluded.

This balancing process will not be an easy or short one and this module will attempt to reflect the latest decisions in this area; however, you should read the latest operational instructions to make certain that you are applying the latest interpretations of detention when applying this warning process. The Supreme Court of Canada dealt with the definition of detention in R v. Therens (1985) 1 S.R.C. 613.

In February 1990, the Supreme Court of Canada ruled in R. v. Brydges that in addition to informing a detained person about his/her right to counsel, a peace officer must also inform the person about the availability of legal aid. In addition to explaining rights under Section 10(a) and 10(b), an explanation of legal aid services must be included in the statement.

This represents a new dimension to decisions by the Supreme Court of Canada. This decision is not interpreting the law, it is adding a law and the court gave a time-table for implementation (by March 2nd 1990).

The consequences of this decision were also very serious because the charge was murder, and since the strongest piece of evidence was the statement, the accused was acquitted of murder. R. vs. Elshaw 1991. [Excludes evidence obtained in breach of the charter.]

The Charter of Rights warning now includes information such as: [required - R. vs. Pozniak (1994)]

A Legal Aid Duty Lawyer is available to you without charge and can explain the Legal Aid plan to you.
If you wish to contact a Legal Aid Duty Lawyer, I can provide you with a telephone number. The number is 555-5585.
Do you understand?
Do you want to call a lawyer?

The Supreme Court of Canada also ruled in R. v. Manninen (87-Jun-25) that police must cease questioning an accused who has requested the right to counsel. To continue to question an accuse is a serious breach of their rights, and to admit the evidence would bring the administration of justice into disrepute. However, the accused must be diligent in his/her efforts to contact counsel.

The decision went beyond mere questioning and said that the police must not even attempt to elicit evidence from the detainee until he has had a reasonable opportunity to retain and instruct counsel. (This was qualified somewhat by saying that if it were an emergency, then it would be different.) Once the accused has contacted counsel, you may question him/her. The advice given to the accused is just that - advice. The suspect can decide afterwards if he/she wants to answer any question, or continue with the interview. All too often police officers discontinue interviews after a suspect has been told not to talk. He/she can make up his/her own mind on whether or not to talk to police.

Sec. 10 - Charter of Rights and Freedoms

Everyone has the right on arrest or detention

to be informed promptly of the reasons therefor;
to retain and instruct counsel without delay and to be informed of that right; and
to have the validity of the detention determined by way of Habeas Corpus and to be released if the detention is not lawful.
If during your interview, the accused becomes suspect of additional offences, they must again be cautioned, and advised of their Charter rights, with further opportunity to contact counsel. R. vs. Black(1989)

The courts have interpreted detention to include areas not formerly considered as detention. It now may include routine stops or checks or possible impaired drivers where police have formed an intent to charge.

See the meaning of Detention (Charter of Rights Sec. 10 annotations). A peace officer must be clear on the meaning of detention.

Step 5: Narrative

This step covers the main part of the statement, a description of the incident involved. It is a recount of the incident as remembered by the witness, suspect or accused.

This part of the statement should be in the language or words of the suspect or accused and if he/she uses profanity as part of the description, it must be included.

Any questions from the investigator at this time should be merely of the kind that clarify remarks made by the suspect. The interviewer should never ask leading or rhetorical question such as, "You did it, didn't you?"

An example of a clarifying question would be when the suspect says "And then he did it" and you ask "Who did it?"

Step 6: Questions and Answers

After the suspect or accused has supplied the details as they remember them about the incident, the investigator should then seek specific details relating to the incident. This is where direct questions should be used by the investigator for detailed information.

If the interviewee is a suspect or an accused person, specific questions should be asked dealing with the elements of the offence. If intent or mens rea is a vital part of the offence, then questions should be asked, if not already covered, to deal with that part of the offence.

The complete question asked must be recorded, and the complete answer must be recorded.

While tone or voice inflections cannot be shown in a written statement, it may be very important to make notes of voice inflections (especially if very unusual) as soon afterwards as possible. Similarly, gestures used to accompany replies or avoid replies may be important and should be recorded in notes. These notes would be independent of the statement-taking, and made after-wards, so it is important to review the statement afterwards by yourself.

After the suspect finishes his/her "whole version," before you begin to question him/her, you must advise them of the warning read to them earlier is still in effect. (i.e. "I now wish to ask you some questions, but you must clearly understand that the warning I read earlier is still in effect. Do you understand?".

Step 7: Review

After the suspect or accused has provided the information and has answered the investigator's questions, the statement should be reviewed with them. Many times, reviewing of information at this stage will produce forgotten information.

Ensure that the information is reviewed thoroughly and the suspect's or accused's statement has been recorded in a manner satisfactory to the suspect or accused.

Ensure that the words used in the statement are those of the interviewee.

If additional information is revealed, add it to the statement with a short explanation such as "I also remember..."

Ask again if there is anything else that could be added to the statement. Give the person lots of opportunity to remember and add information.

You may read the statement back to the suspects, or they may read it themselves. When they are finished, ask them if they wish to make any changes, additions, or deletions. At this point the statement can be concluded, ensuring time and date are recorded, as well as signatures of all persons present. This must be done at the bottom of every page, as well as after the warning and caution.

Step 8: Signatures

After having thoroughly reviewed the statement with the suspect or accused, you should then ask him/her if they wish to sign the statement. At the time of signing, they should also initial any changes that have been made during the review. The initialing should be over or beside the corrections.

The signature and initialing should be witnesses by the investigator, and the investigator should sign the statement as a witness. All pages must be numbered.

If the suspect does not wish to sign the statement, a notation should be made to that effect and it should state, "Did not wish to sign" rather than "Refused to Sign". There is a difference in these two terms that may affect the introduction of these statements in court. The differences are also very real. Many people do not wish to sign their names to something for legal reasons. The lack of a signature has nothing to do with the honesty or truthfulness of the statement. On the other hand, a refusal to sign infers that there is pressure to sign, which connotes inducements and also casts doubts on the honesty and truthfulness of the statement.

Step 9: Concluding Time and Date

The concluding time and date for the statement should be noted above the signatures of the suspect or accused and the investigator.

The concluding time and date allows examination of the time involved in taking the statement if that point needs to be examined.

This is the end of the writing, but now is the time to ensure that the pages of the statement have been numbered. The statement should be clipped together. If the incident being investigated is a major crime, the statement should be placed inside an envelope, clearly marked and identified with the file number. It should have the suspect's or accused's name on it and the time, date and place.

The statement may be the most important piece of evidence that an investigator has and it should be handled that way.

If your newly found evidence were the murder weapon, you can imagine how carefully it would be treated as an exhibit, yet in many cases it would not be nearly as important as the statement just taken. Not only is that statement a potential exhibit, it is also needed by other investigators to assist you and to follow-up. In some Divisions, you may see that the statement is treated as an exhibit. Check your Division policy upon arrival at your Detachment.

The best way to achieve competence in statement-taking is through practice. You should attempt to obtain a warned statement from any suspect you deal with as often as possible. Never let anyone convince you that certain people won't talk. Make the effort and you may be surprised by the results.