R. v. G. (B.)

R. v. G. (B.)
Collection
Supreme Court Judgments
Date
1999-06-10
Report
[1999] 2 SCR 475
Case number
26226
Judges
Lamer, Antonio; L'Heureux-Dubé, Claire; Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.; Bastarache, Michel; Binnie, William Ian Corneil
On appeal from
Quebec
Subjects
Criminal law
Notes
SCC Case Information: 26226
Decision Content
R. v. G. (B.), [1999] 2 S.C.R. 475
Her Majesty The Queen Appellant
v.
B.G. Respondent
Indexed as: R. v. G. (B.)
File No.: 26226.
1999: January 29; 1999: June 10.
Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.
on appeal from the court of appeal for quebec
Criminal law ‑‑ Evidence ‑‑ Mental disorder ‑‑ Protected statements ‑‑ Admissibility ‑‑ Accused charged with various sexual offences ‑‑ Accused’s mental condition assessed by psychiatrist ‑‑ Accused’s testimony at trial inconsistent with protected statement made to psychiatrist ‑‑ Criminal Code providing that protected statement admissible in such a case for purpose of challenging accused’s credibility ‑‑ Protected statement tied to out‑of‑court statement made to police and ruled inadmissible at outset of trial ‑‑ Whether protected statement also inadmissible ‑‑ If so, whether it may be used to challenge accused’s credibility ‑‑ Interpretation of s. 672.21(3) (f) of Criminal Code, R.S.C., 1985, c. C‑46 .
The accused went to a police station and, after he was cautioned and his constitutional rights were read, made a statement to the police in which he admitted to engaging in various acts of a sexual nature with his young cousin. The accused was subsequently charged, and a court ordered an assessment of his mental condition under s. 672.11 (a) and (b) of the Criminal Code . During this assessment, the accused made an incriminating admission (the “protected statement”) to the psychiatrist when the latter asked him to explain the out‑of‑court statement he had made to the police. The defence requested a second assessment. Both psychiatrists’ reports noted the accused’s limited mental capacity, but nevertheless concluded that he was fit to stand trial. The reports also indicated that the accused was very accommodating toward those in authority and that his answers were unreliable in an anxiety‑producing situation. At trial, following the victim’s testimony, the Crown sought to introduce the accused’s out‑of‑court statement. Based on the psychiatric assessments, the trial judge ruled it inadmissible. The accused later testified and denied any sexual activity with the victim. The Crown then cross‑examined him on his “protected statement” under s. 672.21(3)(f) of the Code. Section 672.21(3) lists a few exceptions to the general principle that protected statements are inadmissible in evidence, in particular para. (f), which provides that such a statement is admissible for the purpose of challenging the credibility of the accused where his or her testimony is inconsistent with the protected statement. In the opinion of the trial judge, the debate turned entirely on the credibility of the witnesses. Citing the accused’s lack of credibility, and preferring the victim’s version of the facts, he found the accused guilty. The Court of Appeal allowed the accused’s appeal and ordered a new trial. The court stated that the trial judge had erred in using the protected statement against the accused to challenge his credibility.
Held (L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed.
Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.: The accused’s admission to the psychiatrist is a protected statement within the meaning of s. 672.21 of the Code. Assuming the first confession to the police is inadmissible, the second statement will also be inadmissible if the degree of connection between the two statements is sufficient for the second to have been contaminated by the first. This interpretation meets the requirements of s. 7 of the Canadian Charter of Rights and Freedoms , which entrenched certain aspects of the confessions rule. A confession found to be inadmissible could not be introduced indirectly without affecting the right to silence and the principle against self-incrimination. Moreover, as the second statement is inadmissible because the first confession contaminated it, it is unnecessary to decide whether the second statement is a confession to a person in authority. In this case, the second statement is inadmissible because of its degree of connection with the prior inadmissible confession. The admission to the psychiatrist resulted directly from the confrontation of the accused with his previous statement. No additional information was obtained. Since the second statement exists only because of the first, it is unnecessary to consider here whether the tainting factors continued to exist, although in this case they were still present to some extent.
Although it is possible, in certain circumstances, to distinguish between the use of evidence to challenge the credibility of an accused and its use on the merits, that is not the case with the confessions rule. That rule provides that an involuntary confession may not be used for any purpose. The confessions rule excludes the protected statement because it is derived from the prior inadmissible confession.
Section 672.21 of the Code is not inconsistent with the application of the confessions rule. In enacting the section, Parliament sought a balance between the need to learn the truth and the protection of accused persons ordered to undergo an assessment of their mental capacity. This balance would be difficult to achieve if the rules of evidence which provide for the exclusion of otherwise inadmissible evidence were set aside. If the exception in s. 672.21(3) (f) does allow previously excluded evidence to be reintroduced indirectly, accused persons will refuse to answer some of their psychiatrist’s questions for fear this evidence may be reintroduced at trial. Even more importantly, we must prefer an interpretation of s. 672.21(3) (f) that does not make the provision of no force or effect, if that interpretation is at all plausible. Now that the confessions rule, which does not allow for any use of an involuntary statement, has been given constitutional expression, using evidence contrary to this rule would infringe s. 7 of the Charter . Finally, nothing in the wording of s. 672.21(3) (f) indicates that Parliament wanted to abolish the confessions rule; the interpretation that is contrary to the Charter must therefore be rejected.
In the circumstances of this case, the fact that the defence accepted the introduction in evidence of the psychiatrist’s report containing the protected statement and did not object to the use of this evidence by the Crown during cross‑examination of the accused was not a valid waiver or consent to the use of the protected statement.
Per L’Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): The statement the accused made to the psychiatrist is a “protected statement”. Section 672.21(3) (f) of the Criminal Code permits the use of protected statements to challenge the credibility of the accused where he takes the stand and gives a different statement in evidence. Here, the accused gave a different version of events at trial from that which he had provided to the psychiatrist. In keeping with the limited exception carved out by s. 672.21(3) (f), the trial judge used the accused’s statement to the psychiatrist only on the issue of credibility.
The accused’s contention that his statement to the psychiatrist was inadmissible and outside the reach of s. 672.21(3) (f) must be rejected. First, that statement was not an involuntary confession. Even if the psychiatrist could be considered a person in authority, there is no suggestion that the statement to the psychiatrist was not voluntary. The accused was not deprived of his right to choose whether to confess or not. In addition, the statement was not inadmissible because of its links to the earlier police confession which the trial judge ruled inadmissible. The connection between the accused’s statement to the psychiatrist and the earlier statement to the police does not meet either branch of the test for inadmissibility by derivation set out in I. (L.R.) and T. (E.). The tainting features which disqualified the first confession were no longer present, and the first statement did not effectively deprive the accused of the choice of whether to make the subsequent statement. The substantial connection between the two statements required by the law to establish involuntariness is therefore not present in this case. To assert that every statement similar to or derived from an inadmissible confession thereby becomes inadmissible is to undermine the rationale of choice that lies at the heart of the confessions rule and the doctrine of derivative exclusion. Connectedness or similarity between a prior inconsistent statement and a subsequent statement renders the subsequent statement inadmissible only if it rises to the level of showing that the connection may have rendered the second statement involuntary.
Second, even if the accused had established that the statement to the psychiatrist was inadmissible, the statement could be used to challenge the accused’s credibility pursuant to s. 672.21(3) (f) of the Criminal Code . The limited use exception set out in that section is properly interpreted as applying to all “protected statements”, including inadmissible confessions. The wording of s. 672.21(3) (f) is clear and conforms to Parliament’s intentions. In enacting s. 672.21 , Parliament wished not only to facilitate court‑ordered assessments of accused persons by providing them with a guarantee of confidentiality, but also to uphold and protect the search for truth. Section 672.21(3) (f) effects a compromise between these two purposes. While the common law confessions rule does not permit inadmissible confessions or statements derived therefrom to be used to impeach an accused’s credibility, Parliament has the power to alter the common law. Given the lack of ambiguity in s. 672.21(3) (f) and the absence of a constitutional challenge, this section cannot be read down on constitutional grounds.
Even if the constitutionality of s. 672.21(3) (f) were considered, there is every indication that it would pass constitutional muster. A statement obtained in breach of a constitutional right, specifically the right not to incriminate oneself, does not automatically render any subsequent use of the statement unconstitutional. The consequences of a breach of that right fall to be decided under s. 24 of the Charter by assessing whether the use of the statement will bring the administration of justice into disrepute. If situations arise where such use requires exclusion under s. 24(2) they may be addressed on the facts of the case at issue. This does not support the conclusion that Parliament is generally prohibited from permitting the use of protected statements, including inadmissible confessions, to challenge the accused’s credibility.
Cases Cited
By Bastarache J.
Applied: R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504; referred to: Erven v. The Queen, [1979] 1 S.C.R. 926; Hebert v. The Queen, [1955] S.C.R. 120; R. v. Mannion, [1986] 2 S.C.R. 272; R. v. Kuldip, [1990] 3 S.C.R. 618; M‘Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Whittle, [1994] 2 S.C.R. 914; Monette v. The Queen, [1956] S.C.R. 400; R. v. Calder, [1996] 1 S.C.R. 660; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Pelletier (1986), 29 C.C.C. (3d) 533; Thompson v. Goold & Co., [1910] A.C. 409; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Motel Pierre Inc. v. Cité de Saint-Laurent, [1967] Que. Q.B. 239; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Cook, [1998] 2 S.C.R. 597; R. v. Dietrich (1970), 1 C.C.C. (2d) 49; Park v. The Queen, [1981] 2 S.C.R. 64.
By McLachlin J. (dissenting)
R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504; R. v. Hebert, [1990] 2 S.C.R. 151; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; R. v. Zundel, [1992] 2 S.C.R. 731; R. v. Kuldip, [1990] 3 S.C.R. 618; R. v. Whittle, [1994] 2 S.C.R. 914; R. v. White, [1999] 2 S.C.R. 417.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 1 , 7 , 11 (c), 13 , 24(2) .
Criminal Code, R.S.C., 1985, c. C‑46 [am. 1991, c. 43, s. 4], ss. 672.11 (a), (b), 672.21, 672.21(3) (f), 686(1)(b)(iii) [idem, s. 9 (Sch., item 8)].
Authors Cited
Canada. Canadian Committee on Corrections. Report. Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969.
Canada. Department of Justice. Report of a Committee Appointed to Inquire Into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada. Ottawa: Queen’s Printer, 1956.
Canada. House of Commons Debates, vol. III, 3rd Sess., 34th Parl., October 4, 1991, p. 3296.
Canada. Law Reform Commission. Mental Disorder in the Criminal Process. Ottawa: The Commission, 1976.
Canada. Royal Commission to investigate the Penal System of Canada. Report of the Royal Commission to investigate the Penal System of Canada. Ottawa: King’s Printer, 1938.
Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.
Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan. Toronto: Butterworths, 1994.
APPEAL from a judgment of the Quebec Court of Appeal (1997), 10 C.R. (5th) 235, 119 C.C.C. (3d) 276, [1997] Q.J. No. 2267 (QL), allowing the accused’s appeal from his conviction and ordering a new trial. Appeal dismissed, L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.
Maurice Galarneau and Caroline Vallières, for the appellant.
Robert Malo, for the respondent.
English version of the judgment of Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ. delivered by
//Bastarache J.//
Bastarache J. ‑‑
I. Introduction
1 The interpretation of a statutory provision is often problematic when the extent to which it must be consistent with traditional common law rules and the constitutional values of the Canadian Charter of Rights and Freedoms is to be determined. That is what must be done in the case at bar with respect to s. 672.21(3) (f) of the Criminal Code, R.S.C., 1985, c. C‑46 , which deals with the circumstances in which a “protected statement” made by an accused to a psychiatrist who is assessing his or her fitness to stand trial is admissible.
II. Facts
2 The respondent B.G. is charged with engaging in various acts of a sexual nature with his young cousin D.C. over a seven‑year period. The alleged incidents began in 1983 when the respondent was nineteen and the victim five years old.
3 On March 18, 1993, at the request of the police, the respondent went to a Sûreté du Québec police station, accompanied by his older brother. After he was cautioned and his constitutional rights were read, the respondent made an inculpatory statement which was taken down in writing by the police, in which he admitted and explained in detail the alleged sexual assaults. The respondent was subsequently charged with a summary conviction offence.
4 In February 1994, during the pro forma hearing, the court, with the consent of the parties, directed psychiatrist John Wolwertz to assess the respondent’s fitness to stand trial and his capacity for criminal responsibility under s. 672.11 (a) and (b) of the Criminal Code . During this assessment, the respondent made an incriminating admission (hereafter the “protected statement”) to Dr. Wolwertz when the latter asked him to explain the out‑of‑court statement he had made to the police the year before.
5 The defence requested a second assessment, to be made by psychiatrist Paul‑André Lafleur. After noting the respondent’s limited mental capacity, lack of education and state of dependence, Dr. Lafleur and Dr. Wolwertz nevertheless concluded in their respective reports that he was fit to stand trial and should be considered to be of sound mind at the time of commission of the alleged acts. The reports also emphasized that the respondent was very accommodating toward those in authority and that his answers were unreliable in an anxiety‑producing situation.
6 At trial, following the victim’s testimony, the Crown sought to introduce the respondent’s out‑of‑court statement. After a voir dire, Judge Lamoureux, sitting without a jury, ruled the statement inadmissible based on the psychiatric assessments which called into question the accused’s ability to understand the consequences of his statement and its possible use in court, and on the unreliability of the accused’s answers in an anxiety‑producing situation.
7 The respondent later testified for the defence and denied any sexual activity with the victim. The Crown then cross‑examined him on his “protected statement” under s. 672.21(3) (f) of the Criminal Code , in view of its inconsistency with his testimony. The defence did not object to these questions. Finally, before closing the case, counsel for both parties agreed to file the testimony given by the two psychiatrists during the voir dire, as well as their respective reports.
III. Relevant Statutory Provisions
8 Section 672.21 of the Criminal Code provides as follows:
672.21 (1) In this section, “protected statement” means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.
(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.
(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of
(a) determining whether the accused is unfit to stand trial;
(b) making a disposition or placement decision respecting the accused;
(c) finding whether the accused is a dangerous mentally disordered accused under section 672.65;
(d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly‑born child;
(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;
(f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or
(g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.
IV. Judicial History
A. Court of Québec (February 14, 1996)
9 Faced with contradictory versions of the facts, Judge Lamoureux stated that the debate turned entirely on the credibility of the witnesses. It was because of the accused’s lack of credibility, due inter alia to his admission of guilt to Dr. Wolwertz and subsequent denial before the court, that Judge Lamoureux found the accused guilty, preferring the victim’s version of the facts, which was the Crown’s only evidence. He stated the following in this regard:
[translation] The accused gave, invented two (2) scenarios for the crime with which he was charged. What credibility must I give to the testimony of the accused, who admitted to Dr. Wolwertz that he sexually assaulted the victim and who, under oath, before the Court, denied this statement? That the accused says to the Court that he was intimidated, I cannot accept this defence which was the only one put forward by the accused, his state of mind. I understand that the accused may have certain problems, but not to the point of not . . . in any event, he proved during his meeting with Dr. Wolwertz that he could understand the questions put to him reasonably well. I therefore accept what he said to Dr. Wolwertz.
The second part, the grounds which led me to a decision, is that I was not particularly impressed by the accused’s testimony. I understand that the accused has certain problems, they are discussed in the reports by Dr. Wolwertz and Dr. Paul‑André Lafleur, but neither of them can satisfy me that the accused did not know or could not understand the admissions he made. It is a question of credibility, and if, for the purposes of the authorities, I refer, as I must, to the Supreme Court’s directions in W.B.C. on credibility with regard to the accused’s behaviour during the trial, I cannot accept his testimony or his denial of the actions, the sexual assaults he committed.
B. Quebec Court of Appeal (1997), 10 C.R. (5th) 235
10 Proulx J.A., for the court, first examined the legislative provisions concerning the use of a protected statement, namely s. 672.21 of the Criminal Code . He noted that the admissibility of an out‑of‑court statement of this type depends on the purpose for which it was introduced. He added that subs. (3)(f), which applies in the case at bar, was a codification of the principles set out by the Supreme Court in R. v. Mannion, [1986] 2 S.C.R. 272, and R. v. Kuldip, [1990] 3 S.C.R. 618.
11 After noting that the respondent’s admission to Dr. Wolwertz was indeed a “protected statement” within the meaning of s. 672.21 of the Criminal Code , Proulx J.A. stated that this admission could normally be put to the respondent in cross‑examination to challenge his credibility, but that the source of the problem in the instant case was that the statement itself was obtained illegally. At p. 242 he states:
[translation] To read s. 672.21(3) (f) so as to authorize the use of any “protected statement” of an accused, without regard to the means used to obtain it, would contravene the most basic principles of fundamental justice which are entrenched in the Canadian Charter of Rights and Freedoms and which also govern the exercise of the Court’s discretionary power to exclude evidence where the prejudice which would result from its admission would outweigh its probative value.
In the case before us, the evidence of the admission was obtained by Dr. Wolwertz by confronting the appellant [the respondent in this appeal] with his statement to the police which was later held inadmissible by the trial judge because it was not given freely and voluntarily. It seems difficult to imagine a clearer case for the application of the rule that “involuntary statements may not be used”, as the Supreme Court recently reiterated in R. v. Calder, [1996] 1 S.C.R. 660, p. 674. Furthermore, in that case, the Court adopted what had been stated in . . . Monette [v. The Queen, [1956] S.C.R. 400], that is, that “nothing more ought to be heard of it” once a statement by the accused has been held inadmissible. Consequently, the admission obtained by Dr. Wolwertz was also inadmissible and the trial judge erred in using it against the [respondent].
12 The Court of Appeal was of the view that in his evaluation of the protected statement, Judge Lamoureux should have considered the same grounds which justified the exclusion of the first statement to the police, namely the lack of reliability of the respondent’s answers in an unusual and anxiety‑producing situation.
13 The issue of consent by the defence to the use of the admission, which was raised by the Crown, was also examined by the Court of Appeal, which dealt with it as follows at p. 243:
[translation] . . . I find it difficult to believe that after successfully challenging the admissibility of the admissions made by [the respondent] to the police, counsel for the [respondent] nevertheless wanted these admissions used against his client, through Dr. Wolwertz’s report: the consent to the production of the report therefore cannot have this result.
V. Issues
14 On February 12, 1998, this Court granted the appellant leave to appeal the judgment of the Quebec Court of Appeal on the following issue:
[translation] Did the Court of Appeal err in law in unanimously deciding that the trial judge had erred in law in interpreting s. 672.21(3) (f) of the Criminal Code as allowing him to use the respondent’s “protected statement” against him?
The appellant has also formulated the following issue:
[translation] May a “protected statement” be used for the purposes prescribed by the Act if it was obtained through the use of evidence, in this case an out‑of‑court statement, which was subsequently found to be inadmissible?
VI. Analysis
15 Part XX.1 of the Criminal Code is the result of a consolidation of all of the criminal law principles concerning persons with mental disorders. This consolidation occurred in February 1992, following much consultation and lengthy reflection on this issue which took into account the principles established by the House of Lords, in the nineteenth century, in M‘Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718, and the recommendations of the Archambault Commission in 1938, the Fauteux Committee in 1956, the Ouimet Committee in 1969, and the Law Reform Commission of Canada in 1976. The key to these amendments, however, was this Court’s decision in R. v. Swain, [1991] 1 S.C.R. 933.
16 Section 672.21 of the Code deals specifically with protected statements made by an accused during the assessment of his or her mental capacity and sets out the general principle that they are inadmissible in evidence at trial. Subsection (3) recognizes several exceptions to this principle, however, in particular in para. (f), which provides for admissibility to challenge the credibility of the accused where his or her testimony is inconsistent with the protected statement.
A. The Nature of the “Protected Statement”
17 In order to determine whether s. 672.21(3) (f) permitted the use at trial of the admission made by the accused to Dr. Wolwertz in the case at bar, we must first examine the contents of the statement. In view of its importance, I shall reproduce in full the passage from the psychiatrist’s report that gave rise to the controversy:
[translation] When he was confronted with the statement made to the police, he said to us: “Since I didn’t know what to say, I told a story and since it was the first time I had dealings with the police, I was a bit uncomfortable since it is because of my aunt . . .”. When he was asked why [D.C.] or his aunt . . . would have spoken to the police, he gave me the following answer: “I don’t know why they are doing that, it may be that my aunt is angry with me because I let them down even though I was always with them, I helped them, I always looked after [D.]!” and added: “I don’t know why they are doing that when we were always good friends . . . I said what I did because I was uncomfortable, I was afraid!”. He later added: “Someone who hadn’t done that would find it hard to talk about it in detail and I said it like it was!”. He is also aware that what he is alleged to have done is wrong because he said: “I know that assaulting a child, that it’s not done and that it can have serious consequences. If I am found guilty, I can be sent to prison . . . but I regret having said that!”. When I went over the details of his statement with him and pointed out that it explains fairly well what happened between him and [D.C.], he replied: “Yes, I know”, and hastened to add “maybe the police misunderstood!”.
However, it was especially when I compared his statement with that of [D.C.] and showed him that there were remarks or phrases which were similar that he expressed astonishment, immediately searching for a way out, and said: “I made up a story.... It’s as if [C.] had copied my story.” But finally, when faced with the evidence that [D.C.]’s statement was made before his, he was confounded and caught off guard, he said to me: “Now that doesn’t make sense. I’ve just learned something. The story I made up, it’s the same.” He then became very tense, worried: “I was nervous when I spoke to the police and I didn’t know what to say.” Then I asked him the following question: “Were you so nervous with the police that you told the truth?”. That was when he agreed, answering in the affirmative.
18 There is no doubt, and no one disputes, that the admission made to the psychiatrist is indeed a protected statement within the meaning of s. 672.21 of the Code. The respondent submits, however, that it is a statement derived from a prior inadmissible statement, which would make it inadmissible.
19 With respect to that first statement, it is not clear, from reading Judge Lamoureux’s reasons, whether he found that the accused was unable to understand the police officers’ caution, in which case the statement was indeed inadmissible, or whether he was of the view that the accused was able to understand the meaning of the statement, but unable to grasp the full seriousness of its consequences. If the trial judge arrived at the latter conclusion, then there is every reason to believe that the first confession should have been admitted, and its weight left to be assessed by him as trier of the facts. That can be seen from R. v. Whittle, [1994] 2 S.C.R. 914, at pp. 941 and 947, concerning the “operating mind” test for confessions:
The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.
. . .
In exercising the right . . . the accused must possess the limited cognitive capacity that is required for fitness to stand trial. . . .
. . .
The decision by the trial judge to exclude the statements was on an erroneous view that the evidence which he accepted did not satisfy a separate awareness of the consequences test. [Emphasis added.]
20 As that issue is not before the Court, and the Court is not in a position to decide it, I must proceed with my analysis on the basis that the first confession was in fact inadmissible. The question is important, however, and the trial judge will have to re‑examine it should there be a new trial.
21 The leading case on the question of the common law “derived confessions rule” is R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504, in which this Court, inter alia, set out the test for evaluating the degree of connection between the statements, in order to determine when the second statement must be excluded. According to that decision, the second statement must be excluded when it arose out of the first or when they are one and the same. Speaking for the Court, Sopinka J. summarized the state of the authorities on the issue, at p. 526:
Under the rules relating to confessions at common law, the admissibility of a confession which had been preceded by an involuntary confession involved a factual determination based on factors designed to ascertain the degree of connection between the two statements. These included the time span between the statements, advertence to the previous statement during questioning, the discovery of additional incriminating evidence subsequent to the first statement, the presence of the same police officers at both interrogations and other similarities between the two circumstances. See Boudreau v. The King, [1949] S.C.R. 262; Horvath v. The Queen, [1979] 2 S.C.R. 376; and Hobbins v. The Queen, [1982] 1 S.C.R. 553. No general rule excluded subsequent statements on the ground that they were tainted irrespective of the degree of connection to the initial admissible statement. In this regard I adopt the language of Laskin C.J. in Hobbins, supra, at p. 558, when he states:
There can be no hard and fast rule that merely because a prior statement is ruled inadmissible a second statement taken by the same interrogating officers must be equally vulnerable. Factual considerations must govern, including similarity of circumstances and of police conduct and the lapse of time between the obtaining of the two statements. [Emphasis added.]
Sopinka J. then concluded his discussion of the derived confessions rule by stating:
In applying these factors, a subsequent confession would be involuntary if either the tainting features which disqualified the first confession continued to be present or if the fact that the first statement was made was a substantial factor contributing to the making of the second statement.
22 In my view, it is not necessary here to analyse I. (L.R.) and T. (E.), where Sopinka J. was dealing with a situation in which two confessions are made to persons in authority. It is sufficient to retain from it that the derived confessions rule applies where there is a sufficient connection between the two statements. This follows from the rationale for the rule. The Quebec Court of Appeal cited Monette v. The Queen, [1956] S.C.R. 400, in this regard, where the Court said of an inadmissible statement: “nothing more ought to be heard of it”. The second statement is inadmissible because the first confession contaminated it. Therefore, it is not necessary to decide whether the second statement is a confession made to a person in authority in the present case. This interpretation also meets the requirements of the Charter , which entrenched certain aspects of the confessions rule in s. 7 . A confession found to be inadmissible could not be introduced indirectly without affecting the right to silence and the principle against self-incrimination, which is what we would be doing by admitting a statement that was “contaminated” by an inadmissible confession.
23 Sopinka J. states clearly that the continued presence of the tainting features or the substantial contribution of the first statement to the making of the second may establish that the second statement was derived from the first. While that is true in the clearest cases, it will generally be easier to establish this when both conditions are present to some extent. Ultimately, what matters is that the court is satisfied that the degree of connection between the two statements is sufficient for the second to have been contaminated by the first.
24 In the case at bar, the admission made to Dr. Wolwertz resulted directly from the confrontation of the accused with his previous statement. No additional information which was not already included in the inadmissible prior statement was obtained during the meeting; the second admission is merely an assertion of the truth of the first statement. It is interesting to note in this regard that at common law, an admission by an accused during a voir dire confirming the truth of a prior confession is inadmissible at trial: Erven v. The Queen, [1979] 1 S.C.R. 926. As the respondent states, Dr. Wolwertz in fact cross‑examined the accused on his first statement.
25 Given that the second statement in the case at bar exists only because of the first, it is unnecessary to consider here whether the factors for exclusion continued to exist, although it might be helpful to make a brief comment in this regard. Subject to the doubts expressed in paras. 19 and 20, the confession made to the police was declared inadmissible by Judge Lamoureux apparently for two reasons: the first was the doubt as to the accused’s ability to understand the legal consequences of his statement; the second was the unreliability of the accused’s answers when he was in an anxiety‑producing situation. It seems that these two factors were still present to some extent when the admission was made to Dr. Wolwertz. An interview conducted by a psychiatrist pursuant to an order under s. 672.11 of the Criminal Code certainly gives rise to an anxiety-producing situation. Confirmation of the truth of the previous admission was therefore no more reliable than the admission itself. There is also no reason to conclude that the respondent was better able to understand the legal consequences of his statement to Dr. Wolwertz than those of his confession to the police. On the contrary, an accused is generally somewhat mistrustful of the police, whereas he might be less mistrustful as to the possible use of any statements he may make to a psychiatrist who is assessing his mental capacity.
26 It matters little that the declaration of inadmissibility was made after Dr. Wolwertz had used the original confession. This confession did not become inadmissible at that moment; it was inadmissible as soon as it was made. Knowledge of this inadmissibility by the person who obtains the second confession is not relevant. The second confession is inadmissible because it was derived from the first, not because it was used in bad faith by the person conducting the examination.
27 Since s. 672.21(3)(f) of the Code makes the protected statement admissible for the purpose of challenging the credibility of the accused, there is an apparent conflict here between two rules. To resolve the matter properly, we must first examine the scope of the exclusion of evidence under the confessions rule.
B. The Scope of the Confessions Rule
28 The principles which govern the admissibility of a statement made by an accused to a person in authority are essential to the integrity of the judicial process. As Sopinka J. stated in Whittle, supra, at p. 931:
While the confession rule and the right to silence originate in the common law, as principles of fundamental justice they have acquired constitutional status under s. 7 of the Charter .
29 As the exception in s. 672.21(3) (f) allows a statement to be used solely to challenge an accused’s credibility, and not as proof of its contents, it is important to know whether, notwithstanding the confessions rule, it is possible to use a statement whose voluntariness has not been established for this purpose. That is the first step, before arriving at the question of using a statement found to be inadmissible in order to challenge the credibility of an accused.
30 This question has been examined by Canadian courts on a number of occasions, and in particular by this Court in Hebert v. The Queen, [1955] S.C.R. 120, as early as 1954. In that case, the Crown had sought to cross‑examine the accused on a statement he had made to the police, without a voir dire being held, to establish its voluntariness. With regard to this practice, Estey J. stated at p. 134:
A cross‑examination upon such a statement, by the great weight of authority in our provincial courts, as well as in the court of criminal appeal in England, has been condemned.
His colleague, Fauteux J., dealt specifically with the issue of credibility as follows at p. 147:
[translation] Moreover, did the Crown not seek to justify the introduction of this evidence in the record both at trial and in this Court merely through the provisions of sections 10 and 11 of the Evidence Act, which permit the credibility of witnesses to be challenged by cross‑examining them on their prior statements which are inconsistent with their testimony. The issue of whether, during the cross‑examination of an accused heard as a witness, the Crown may refer to statements made by him or her to the police, before it is determined whether the statements were made freely and voluntarily, has been considered in several cases. My colleague Cartwright J. referred to these decisions in his reasons and, like him, I am of the view that in the instant case, the Crown cannot further justify the position it ha