R. v. S.G.T., 2010 SCC 20, [2010] 1 SCR 688

                                                 SUPREME COURT OF CANADA

Between:

Her Majesty The Queen

Appellant

and

S.G.T.

Respondent

Coram: McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.

______________________________

R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688

Her Majesty The Queen                                                                                                    Appellant

v.

S.G.T.                                                                                                                               Respondent

Indexed as:  R. v. S.G.T.

2010 SCC 20

File No.:  32890.

2009:  November 18; 2010:  May 27.

Present:  McLachlin C.J. and Binnie, Deschamps, Fish, Abella, Charron and Rothstein JJ.

on appeal from the court of appeal for saskatchewan

Criminal law — Evidence — Admissibility — Confessions rule — Derived confessions rule — Accused’s stepdaughter telling school counsellor that accused had touched her in sexually inappropriate manner — Accused apologizing to his stepdaughter in statement to police — Accused charged with sexual assault — Accused subsequently sending e‑mail to former wife consenting to her travelling abroad with children — E‑mail including second apology to stepdaughter — Trial judge ruling after voir dire that statement to police was inadmissible because police officer had offered inducement by implying that accused would not be charged if he apologized — Contents of e‑mail, admitted in evidence without voir dire and without objection from defence counsel, playing crucial role in trial judge’s decision to convict accused — Whether trial judge erred by failing to conduct voir dire, on his own motion, to determine admissibility of e‑mail — Whether e‑mail inadmissible under confessions or derived confessions rules — Whether former wife can be considered a “person in authority” under confessions rule.

A complained to her school counsellor that the accused, her stepfather, had touched her in a sexually inappropriate manner on three occasions during the time she spent at his home.  The accused was interviewed by the police on May 27, 2004 and, at the conclusion of the interview, he wrote out an apology to A on the police statement form.  The accused was subsequently charged with the offence of sexual assault on June 30, 2004.  On July 5, in an e‑mail to his former wife, the accused consented to A and his son’s travelling abroad with her. In that e‑mail, he apologized to A a second time.  At trial, the accused’s May 27 confession to the police was ruled inadmissible, on the basis that the police officer had offered an inducement by implying that the accused would not be charged if he apologized.  A and her mother testified for the Crown.  The mother gave evidence about the July 5 e‑mail and, when asked by the trial judge, defence counsel said that he did not object to the e‑mail being admitted in evidence.  No voir dire was conducted.  The accused testified in his defence, denying that he had sexually assaulted A and indicating that the apology in the e‑mail was related to an incident when he had allowed A and some of her friends to share alcoholic “coolers”.  Credibility was the main issue at trial and the contents of the e‑mail played a crucial role in the trial judge’s decision.  He disbelieved the accused’s explanation and convicted him.  The Court of Appeal set aside the conviction and ordered a new trial, concluding that the trial judge had erred by failing to conduct a voir dire, on his own motion, to determine the admissibility of the e‑mail.

Held (Binnie and Fish JJ. dissenting):  The appeal should be allowed and the order for a new trial set aside.  The case should be remitted to the Court of Appeal to consider the accused’s remaining grounds of appeal.

Per McLachlin C.J. and Deschamps, Abella, Charron and Rothstein JJ.:  The Court of Appeal erred in faulting the trial judge for not embarking on a voir dire in respect of the e‑mail, based on the evidence in the actual trial record.

When statements are made by an accused to ordinary persons, they are presumptively admissible, as admissions by an opposing party, without the necessity of a voir dire.  It is only where the accused makes a statement to a “person in authority” that the Crown bears the onus of proving the voluntariness of the statement as a prerequisite to its admission, under the confessions rule.  To be considered a person in authority, the accused must believe that the recipient of the statement can control or influence the proceedings against him or her, and that belief must be reasonable.  The accused must provide an evidential basis for claiming that the receiver of a statement is a person in authority.  In this case, the trial judge did not err by failing to hold a voir dire on the question whether A’s mother was a person in authority.  The accused did not raise the issue at trial and there is no evidence that A’s mother had any control over the accused’s prosecution or that she was operating on behalf of the investigating authorities.  Nothing on the record indicated to the trial judge that she may have been anything other than an ordinary witness in the proceedings.

The “derived confessions rule” serves to exclude statements which, despite not appearing to be involuntary when considered alone, are sufficiently connected to an earlier involuntary confession as to be rendered involuntary and hence inadmissible.  It is not necessary, nor would it be appropriate on this record, to decide whether the derived confessions rule extends to admissions made to ordinary persons.  It suffices to assume that, given an appropriate evidentiary basis connecting the police inducement and the later e‑mail, it would at least be arguable that the subsequent statement could be excluded, if not on the basis of the common law derived confessions rule, perhaps on a Charter basis.  The defence, however, neither raised the argument concerning the derived confessions rule at trial nor brought a Charter application seeking the exclusion of the e‑mail.  In deciding whether there was clear evidence which ought to have triggered the need for the trial judge to raise the issue on his own motion, an appellate court must consider the question from the perspective of the trial judge at the time the decision was made.  Here, the most significant circumstance is that defence counsel consented to the admission of the e‑mail.  In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel, and there was no basis, in this case, to conclude that the trial judge ought to have interfered with the decision of counsel.  On the facts, it is difficult to find evidence of a connection between the two statements which should have alerted the trial judge to the need to conduct a voir dire and to question the wisdom of counsel.  The initial apology was made on May 27, 2004, while the e‑mail was sent over five weeks later on July 5.  The inducement held out by the police, as found by the trial judge on the voir dire, was the suggestion that the accused might not be charged if he apologized.  However, by the time the accused sent the e‑mail, he had been charged notwithstanding his apology in the police statement.  It is therefore far from obvious on what basis the inducement could still have been operative in the accused’s mind.  Additionally, the two statements were made to different persons in entirely different circumstances.  Finally, as the accused’s later testimony in the trial revealed, it was his contention that the apology in the e‑mail concerned a completely unrelated incident.  Given that the accused’s own version was contrary to any theory of a potential connection between the e‑mail and the earlier confession, it is difficult to see on what basis counsel’s consent to the admissibility of the e‑mail could be faulted.

Per Binnie and Fish JJ. (dissenting): The Court of Appeal’s judgment should be affirmed.  The trial judge had in the record before him a clear indication that the accused’s second “apology” might be a “derived confession”and was legally bound to himself determine its admissibility.  His failure to make any independent determination as to the admissibility of the impugned statement is necessarily fatal to the accused’s conviction because, according to the trial judge himself, the impugned statement was critical to his conclusion that the accused was guilty as charged.

The derived confessions rule excludes statements that, while not inadmissible when considered in isolation, are excluded because of their temporal or causal connection to another statement found by the court to be inadmissible.  The question is whether the tainting features that disqualified the first confession continue to be present or the fact that the first statement was made was a substantial factor contributing to the making of the second statement.  Where the evidence raises a concern in this regard, the sufficiency of the required connection must be determined by the trial judge on a voir dire.  An objection by counsel is not required to trigger the judge’s obligation to conduct the voir dire.

In this case, there was ample evidence on the record to alert the trial judge to the need for a voir dire.  During his interrogation, the accused was repeatedly and emphatically urged to apologize to A, and was told that her complaints were “not a big deal” and were “extremely minor”.  One officer told the accused an entirely fictional story according to which the officer had himself been arrested for slapping his son, but the matter was resolved once the officer apologized.  The officer said the Crown would decide whether to proceed with the charges or simply look at counselling instead, and that the most important thing they looked at was an apology.  The accused was told that if he simply apologized the matter might not proceed, and the officer promised to stick with the accused throughout the matter.

The judge had already excluded the initial statement or “apology” written by the accused during the police interrogation, and was thus familiar with the inducements that had provoked it.  The e-mail was strikingly similar to the excluded statement.  Moreover, whether the Crown would proceed with the charges remained a live issue when it was sent.  The improper inducements present when the inadmissible statement was given to the police —  notably, the promise of leniency in exchange for a showing of remorse in the form of an apology —  were still operative.  In these circumstances, cumulatively considered, the connection between the two statements was apparent from the record and should have alerted the trial judge to the need for a voir dire.

The Crown contends that the “person in authority” requirement for exclusion under the confessions rule applies to derived confessions as well.  This Court has previously excluded a statement as a derived confession without determining whether it was made to a person in authority, so it cannot be said that a derived confession will only be excluded if it is made to a person in authority.  The purpose of the derived confessions rule — to exclude statements that are tainted by their connection to a prior inadmissible statement — would be frustrated if they were excluded only when made to a person in authority.  If the statement is prompted by the same police conduct that resulted in exclusion of the earlier confession, or if it discloses the contents of the earlier statement made to authorities, it is a product of the inadmissible confession and is itself inadmissible on that ground alone.

Cases Cited

By Charron J.

Applied:  R. v. Hodgson, [1998] 2 S.C.R. 449; referred to:  Palmer v. The Queen, [1980] 1 S.C.R. 759; R. v. A.B. (1986), 50 C.R. (3d) 247; R. v. Trenholme (1920), 30 B.R. 232; R. v. Wells, [1998] 2 S.C.R. 517; R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504; R. v. G. (B.), [1999] 2 S.C.R. 475; R. v. Lomage (1991), 2 O.R. (3d) 621; R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209.

By Fish J. (dissenting)

R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504; Ibrahim v. The King, [1914] A.C. 599; R. v. G. (B.), [1999] 2 S.C.R. 475.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms , s. 24(2) .

Authors Cited

Kaufman, Fred.  The Admissibility of Confessions, 3rd ed.  Toronto:  Carswell, 1979.

APPEAL from a judgment of the Saskatchewan Court of Appeal (Jackson, Smith and Wilkinson JJ.A.), 2008 SKCA 119, 237 C.C.C. (3d) 55, 61 C.R. (6th) 302, 314 Sask. R. 44, 435 W.A.C. 44, [2008] 11 W.W.R. 1, [2008] S.J. No. 572 (QL), 2008 CarswellSask 600, setting aside the accused’s conviction entered by Scheibel J., 2006 SKQB 234, [2006] S.J. No. 393 (QL), 2006 CarswellSask 373, and ordering a new trial.  Appeal allowed, Binnie and Fish JJ. dissenting.

W. Dean Sinclair, for the appellant.

Aaron A. Fox, Q.C., and Angela M. Ottenbreit, for the respondent.

The judgment of McLachlin C.J. and Deschamps, Abella, Charron and Rothstein JJ. was delivered by

Charron J. —

1.  Introduction

[1]     Following his trial by judge alone, the respondent S.G.T. was convicted of sexually assaulting his stepdaughter.  The Saskatchewan Court of Appeal set aside the conviction and ordered a new trial.  In its view, the trial judge had erred by failing to conduct a voir dire, on his own motion, to determine the admissibility of an e-mail sent by the accused to his estranged wife, the mother of the complainant.  The Crown appeals to this Court with leave.

[2]     In my respectful view, the trial judge committed no error in admitting and relying upon the evidence concerning the e-mail.  I would therefore allow the appeal, quash the order directing a new trial and, as requested by the Crown, remit the case back to the Court of Appeal to consider the respondent’s remaining grounds of appeal.

2.  The Facts and the Proceedings Below

[3]     The facts and judicial findings can be stated briefly.

[4]     The complainant A was  born in 1989.  She was approximately 11 to 14 years old when the events complained of are alleged to have occurred, and 17 at the time of trial.

[5]     S.G.T. met the complainant’s mother in 1995.  The couple were married in 1996, and had a son, B, in 1997.  S.G.T. subsequently adopted A.  The couple separated in 2000, agreeing to a joint parenting arrangement according to which the two children would stay with their father two days a week, alternate weekends and one month during the summer.  A stayed with her father under this arrangement until 2003 when she claimed she was uncomfortable staying at his place and would only go there if she was with her friends.  A complained to her friend about her father’s inappropriate sexual behaviour and eventually to her mother in the spring of 2003.  Although A’s mother contacted the police, she did not follow through when asked to call back, and nothing further was done about the situation at the time.

[6]     About a year later, in May 2004, A told her guidance counsellor at school about her father’s actions and the police were called.  A complained that S.G.T. touched her in a sexually inappropriate manner on three occasions during the time she spent at his home.  These incidents form the subject matter of the charge against him.

[7]     S.G.T. agreed to be interviewed by the police on May 27, 2004.  At the conclusion of the interview with the police, S.G.T. wrote out an apology to A on the police statement form.  This apology was ruled inadmissible at trial, on the basis that the police officer had offered an inducement by implying that S.G.T. would not be charged if he apologized.  More will be said later about the trial judge’s findings on the voir dire.

[8]     S.G.T. was charged with the offence of sexual assault on June 30, 2004.

[9]     By this time, A’s mother had made arrangements to travel to California with A and B on July 6, 2004, to visit her parents.  However, in order to travel with A and B, A’s mother required, pursuant to their arrangement, S.G.T.’s consent.  A’s mother sent S.G.T. a number of e-mails in an effort to obtain his consent.  He finally responded on July 5, 2004, with the following e-mail:

Relax.  When have I ever not done something you’ve requested for the kids.  I’m busy too.  I have the letter and it’s notorized [sic].  I thought long and hard about keeping [B] back so I could spend this month with him in case I end up going to fucking jail on the 28th, but I wouldn’t do that to him.  I hope you realize that I will never be able to coach [B] or travel outside Canada for a holiday with him or work.  I may loose [sic] my job because of this.  I don’t care about you, but I very much hope that this will make [A] get and feel better.  I am so, so sorry if I caused her emotional pain.  I have to live with the fact that I lost someone I cared for deeply over my stupididty [sic].  And now I have to deal with [the] fact that I stand to loose [sic] everything I worked so hard for.  I’m sure this makes you happy.  You better hope for your sake you never make a mistake bringing up [B].

You can pick the letter up out of my mailbox, I have a commitment I have to be at tonight.  Make sure [B] calls me at least once a week, I showed him how to dial collect.

[10] S.G.T.’s trial began on May 8, 2006.  Credibility was the main issue in the trial.  In addition to the complainant’s testimony, two items of evidence emanating from the accused figured prominently in the Crown’s case:  his confession to the police, which included the written apology to A; and the e-mail he sent to A’s mother.

[11] At the commencement of the trial, a voir dire was held regarding the statement to the police.  The accused did not testify on the voir dire.  Based on the evidence adduced on the voir dire, the trial judge held that “the officer, on several occasions, left the impression to the accused that this was not a significant matter, that it was extremely minor, that the accused would not lose his job, that all that was necessary was an apology” (Appellant’s Record, at p. 68).  He concluded that the officer “appears to imply that [the accused] may not be charged if he apologizes”, and “[i]n so doing the officer held out hope of advantage to the accused” (ibid.).  The trial judge ruled the statement involuntary and, consequently, inadmissible.  The evidence on the voir dire was not admitted on the trial proper.

[12] The Crown then called two witnesses: A and her mother.  During the course of her testimony, the mother gave evidence about her e-mail correspondence with the accused, including his response on July 5, 2004.  When asked by the trial judge whether the defence objected to the filing of the e-mails as an exhibit in the trial, counsel for S.G.T. responded “No”.  Nor was any objection raised concerning the mother’s testimony about the July 5th e-mail.

[13] S.G.T. testified in his defence.  He denied sexually assaulting his stepdaughter.  With respect to the apology in the e-mail, he explained that it had nothing to do with the allegations of sexual assault.  His words of regret for any emotional pain he may have caused A were in reference, rather, to an incident when he had allowed the young complainant and some of her friends to share two alcoholic “coolers”, an incident that had caused grief with some of the young girls’ parents.

[14] The contents of the e-mail ultimately played a crucial role in the trial judge’s verdict against the accused.  The trial judge disbelieved S.G.T.’s explanation.  Since S.G.T. also spoke in the e-mail of the possibility of going to jail and never being able to coach his son or travel outside Canada, the “only possible interpretation” was that the e‑mail was “a confession of guilt and one of remorse” in respect of the sexual assaults, which, in turn, confirmed the testimony given by the complainant (2006 SKQB 234 (CanLII), at paras. 34-35).  The trial judge convicted S.G.T. of sexual assault as charged.

[15] On appeal from conviction and sentence before the Saskatchewan Court of Appeal, S.G.T. raised several grounds, including that “the learned trial judge erred in placing excessive weight on the evidence of [the e-mail] in finding [that he] had a ‘guilty mind”’.  He also brought an application to introduce fresh evidence.  Among other things, he stated in his affidavit filed in support of the application that he had lied about the e-mail at trial, and that he had given his evidence at the suggestion of his counsel.  He explained that he included an apology in the e-mail because he had been told by the police in his interview “that all that was needed to resolve the matter was a form of apology” (Appellant’s Record, at p. 103).  He therefore hoped “that the charge would not proceed as promised by the police” (ibid.).  In response to S.G.T.’s fresh evidence application, trial counsel filed an affidavit denying ever having “suggested in any way, shape or form that [his] client tell anything but the absolute truth” (ibid., at p. 112) and confirming that S.G.T.’s explanation for the e-mail had always been that offered in his testimony.

[16]  The Court of Appeal did not find it necessary to dispose of S.G.T.’s application to admit fresh evidence (2008 SKCA 119, 237 C.C.C. (3d) 55, at para. 109).  It allowed the appeal against conviction on the sole ground that the trial judge had erred by failing to conduct a voir dire, on his own motion, to determine the admissibility of the e‑mail.  The court was of the view that there were three “exclusionary rules or limiting principles that might have been invoked to exclude the e-mail from evidence, or weaken, or neutralize its impact”:  the confessions rule, provided that the mother could be brought within the characterization of a person in authority; the trial judge’s inherent jurisdiction to exclude prejudicial evidence outweighing its probative value; and the derived confessions rule (para. 97).  While not faulting trial counsel or the trial judge for not anticipating “every conceivable argument that hindsight and leisurely reflection can serve to devise or construct”, given these concerns about the e-mail and the “decisive influence on the result”, the court saw no viable alternative other than setting aside the conviction and ordering a new trial (para. 108).

3.  Analysis

[17] It is plain from the summary that precedes that the Court of Appeal’s concerns about the apology contained in the e-mail can only find root in the theory that the accused would have sent the e-mail as a result of the inducement offered by the police officer some five weeks earlier when, as the trial judge found, the officer appeared to imply that the accused would not be charged if he apologized for the sexual improprieties.  The notion that the evidence could potentially be excluded on this theory gives rise to a number of legal questions which I will discuss in a moment.  However, the more fundamental difficulty S.G.T. faces in this Court is that, without his fresh evidence  poured in the record, there is no evidentiary basis to support the defence theory.  Indeed the theory that there is some connection between the inadmissible confession and the e‑mail runs counter to S.G.T.’s own evidence and defence at trial that the contents of the e-mail had nothing to do with the allegations of sexual assault.

[18] Having regard to the criteria for the admission of fresh evidence established in Palmer v. The Queen, [1980] 1 S.C.R. 759, S.G.T. faced a rather significant hurdle on his fresh evidence application before the Court of Appeal.  However, the Court of Appeal disposed of the appeal on the basis of this potential connection between the inadmissible confession and the e-mail without finding it necessary to rule on the fresh evidence application, and S.G.T. did not renew the application in this Court.  This appeal therefore turns, not on whether S.G.T.’s different version of events should be admitted in evidence, but rather on whether the Court of Appeal was correct to fault the trial judge for not embarking on a voir dire in respect of the e-mail, based on the evidence in the actual trial record.

[19] As stated earlier, the Court of Appeal expressed the view that there were three exclusionary rules or limiting principles that might have been invoked in respect of the e-mail, one of which being the trial judge’s inherent jurisdiction to exclude prejudicial evidence outweighing its probative value.  However, the court did not elaborate on how the court’s inherent jurisdiction might have come into play and, in responding to the Crown’s appeal before this Court, S.G.T., rightly so in my view, did not rely on this principle.  Therefore, I will deal solely with the common law rules relating to the admissibility of  confessions and the obligations of the trial judge.

[20] The distinction between an admission and a confession is apposite here. Under the rules of evidence, statements made by an accused are admissions by an opposing party and, as such, fall into an exception to the hearsay rule.  They are admissible for the truth of their contents.  When statements are made by an accused to ordinary persons, such as friends or family members, they are presumptively admissible without the necessity of a voir dire.  It is only where the accused makes a statement to a “person in authority”, that the Crown bears the onus of proving the voluntariness of the statement as a prerequisite to its admission.  This, of course, is the confessions rule.

[21] The Court affirmed in R. v. Hodgson, [1998] 2 S.C.R. 449, that the “person in authority” requirement is an integral component of the confessions rule and reviewed in considerable detail the law on persons in authority, including the trial judge’s obligation to hold a voir dire.  I will briefly reiterate those principles to the extent that  they apply here.

[22] A person in authority is typically a person who is “formally engaged in the arrest, detention, examination or prosecution of the accused”:  Hodgson, at para. 32.  Importantly, there is no category of persons who are automatically considered persons in authority solely by virtue of their status.  The  question as to who should be considered as a person in authority is determined according to the viewpoint of the accused.  To be considered a person in authority, the accused must believe that the recipient of the statement can control or influence the proceedings against him or her, and that belief must be reasonable.  Because the evidence necessary to establish whether or not an individual is a person in authority lies primarily with the accused, the person in authority requirement places an evidential burden on the accused.  While the Crown bears the burden of proving the voluntariness of a confession beyond a reasonable doubt,  the accused must provide an evidential basis for claiming that the receiver of a statement is a person in authority.

[23] As noted in Hodgson, “[i]n the vast majority of cases, the accused will meet this evidential burden by showing [his or her] knowledge of the relationship between the receiver of the statement and the police or prosecuting authorities” (para. 38).  Thus, where the receiver of the statement is an obvious state actor, such as a police officer, the fact that the person’s status was known to the accused at the time the statement was made will suffice to meet the evidentiary burden.  Whenever the evidence makes clear that a voir dire into admissibility is required, the trial judge must conduct one even if none is requested unless, of course, the defence waives the requirement and consents to the statement’s admission.  When the receiver of the statement is not a typical or obvious person in authority, it usually falls on the accused, in keeping with the evidential burden, to raise the issue and request a voir dire.

[24] In this case, the recipient of the e-mail, A’s mother, was not a conventional person in authority. Further, S.G.T. did not raise the issue at trial.  While A’s mother may, as a parent of a minor complainant in a criminal trial, be a person in authority, her status alone is not sufficient to render her a person in authority:  see R. v. A.B. (1986), 50 C.R. (3d) 247 (Ont. C.A.), at pp. 257-59; Hodgson, at para. 36.  In those cases where parents have been held to be persons in authority, there has generally been some type of interaction between the parents and the police.  For example, in R. v. Trenholme (1920), 30 B.R. 232, the victim’s father was held to be person in authority on the basis that he actually “laid the charge” and “had authority and control over the prosecution against the accused” (pp. 249 and 243).  More recently, in R. v. Wells, [1998] 2 S.C.R. 517, this Court held that a voir dire was required into whether a parent was a person in authority where the parent had previously spoken to the police about his intention to trick the accused into making a statement.  It was on that basis that Wells was one of those “rare cases” where a voir dire was required for an individual who was not a clear person in authority (para. 16).  By contrast, in Hodgson, the mere fact that the parents of a young girl confronted the accused about sexually assaulting their daughter did not serve to turn them into persons in authority.  The Court emphasized in Hodgson that only rarely will the need for a voir dire be triggered in such circumstances.  Moreover, what needs to be shown before the trial judge will be required to hold a voir dire on his or her own motion bears repeating here:

Status or personal authority alone will not as a general rule provide evidence from which it can be inferred that the receiver of a confession is, in the eyes of the accused, a person in authority.  Rather, in order to demonstrate the need for a voir dire, the evidence must show that the receiver of the statement was closely associated with the authorities prior to obtaining the statement, and that there was as well a close connection in time between the contact with the authorities and its receipt.  The evidence must suggest that the receiver was acting in concert with the police or prosecutorial authorities, or as their agent, or as part of their team.  Only in these circumstances will the trial judge be obliged to hold a voir dire of his or her own motion on the person in authority issue, subject to waiver of the voir dire by counsel for the accused.  [para. 47]

[25] The question then becomes whether clear evidence existed in the record which should have alerted the trial judge to the need for a voir dire. The relevant circumstances are the following.

[26] S.G.T. did not testify that he believed that A’s mother could influence or control the proceedings.  Even if he had testified to that effect, any subjective belief has to be reasonably based in fact.  There is no evidence that A’s mother had any control over the prosecution of S.G.T., or that she was operating on behalf of the investigating authorities.  Rather, the record suggests quite the contrary.  While A’s mother called the police after A disclosed the incidents to her in 2003, she was told to call back later, as the relevant department was not open at that time.  She never called back, as she was concerned about the effect that any complaint might have on her son, B.  The police only began investigating S.G.T. in 2004 after A disclosed the matter to authorities at her school (Appellant’s Record, at p. 80).  In these circumstances, there was nothing on the record to indicate to the trial judge that A’s mother may have been anything other than an ordinary witness in the proceedings.  I therefore conclude that the trial judge did not err by failing to hold a voir dire on the question whether A’s mother was a person in authority.

[27] As stated earlier, the Court of Appeal also identified the “derived confessions rule” as another potential field of inquiry into the admissibility of the e-mail.  As I read his reasons, it is on this ground that Fish J. would uphold the order for a new trial.  Again here, S.G.T. did not raise this argument at trial.  Before considering the record on this point to determine whether the trial judge ought to have raised the issue on his own motion, I will briefly recall the rule.

[28] The leading case on the derived confessions rule is R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504.  In brief, the derived confessions rule serves to exclude statements which, despite not appearing to be involuntary when considered alone, are sufficiently connected to an earlier involuntary confession as to be rendered involuntary and hence inadmissible.  For example, in that case, a young offender was charged with second degree murder and gave an inculpatory statement to the police.  The next day, after meeting with his lawyer, the accused came to the police, wishing to modify the statement that he had given the previous day.  The trial judge excluded the first statement but admitted the second, and the accused was convicted by a jury.  The accused appealed the conviction on the basis that the second statement should not have been admitted.  His appeal was ultimately successful in this Court.

[29] In outlining the principles applicable to derived confessions, the Court articulated a contextual and fact-based approach to determining whether a subsequent statement is sufficiently connected to a prior, inadmissible confession to also be excluded.  In assessing the degree of connection, the Court outlined a number of factors to be considered, including “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” (p. 526).  The Court then held:

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. [p. 526]

The Court was clear in adding that “[n]o general rule excluded subsequent statements on the ground that they were tainted irrespective of the degree of connection to the initial admissible statement” (p. 526).

[30] It is plain from the above principles that the “derived confessions rule” emanates from the common law confessions rule.  As such, like its parent, it is clear that it applies to secondary confessions, that is, statements made to a person in authority that are sufficiently connected to a previous involuntary confession to be deemed also involuntary.  Whether the derived confessions rule also applies in respect of subsequent admissions made to persons not in authority, however, is not so clear.

[31]  S.G.T. claims that this Court’s decision in R. v. G. (B.), [1999] 2 S.C.R. 475,  stands for the proposition that a second statement need not be made to a person in authority in order to be excluded, but rather that a second statement will be excluded in any case where there is a sufficient connection between the two statements.  The Court of Appeal below also placed much reliance on G. (B.).  However, the interpretation that S.G.T. urges this Court to accept remains an open question.  The majority in G. (B.) expressly declined to address this point, instead excluding the second statement (made to a psychiatrist) on the basis that it would be impossible to admit the second statement without also indirectly admitting the first statement, as the second statement at issue in that case actually contained the first, inadmissible statement (paras. 22 and 24). Moreover, the dissent in G. (B.),  written by McLachlin J. (as she then was), with L’Heureux-Dubé and Gonthier JJ. concurring, explicitly rejected the contention that a second statement need not be made to a person in authority in order to be rendered inadmissible under this rule (para. 61).

[32] I respectfully disagree with Fish J. that “[a]s a matter of principle and logic” it is clear that “derived confessions need not be made to a person in authority in order to be found inadmissible” (para. 85).  As a matter of principle, this broad assertion ignores the distinction between confessions and admissions discussed earlier.  As for logic, much will depend on the facts of the particular case.  Logic may have compelled the conclusion reached in G. (B.) where the later statement, which actually contained the earlier tainted confession given to the police, was made to a psychiatrist during the course of a court‑ordered examination into his mental condition.  It may not be so compelling in a case where, for example, the accused repeats the contents of the tainted confession to a personal friend who has no connection to the prosecution.

[33] It is not necessary, nor would it be appropriate on this record, to decide whether the derived confessions rule extends to admissions made to ordinary persons. It suffices for our purposes to assume that, given an appropriate evidentiary basis connecting the police inducement and the later e-mail, it would at least be arguable that the subsequent statement could be excluded, if not on the basis of the common law derived confessions rule, perhaps on a Charter  basis.  The distinction between the two possible bases for exclusion remains important as the application of the common law “derived confessions rule” would result in the automatic exclusion of the tainted statement, whereas under the Canadian Charter of Rights and Freedoms  the question of exclusion would fall to be determined under s. 24(2).  However, the defence did not raise the argument concerning the derived confessions rule at trial, nor did S.G.T. bring a Charter  application seeking the exclusion of the e-mail.  For example, it would have been an opportune time to raise the argument during the course of the voir dire into the admissibility of the police confession if the defence contended that there was some connection between the police confession and the e-mail.  Again, no issue was raised when the trial judge specifically asked whether the defence contested the admissibility of the e-mail at the time the evidence was presented.  Quite to the contrary, in answer to the trial judge’s inquiry, the defence expressly consented to its admission.

[34] I am not unmindful of the fact that S.G.T. raised the question of competency of counsel before the Court of Appeal and that the court did not dispose of this ground of appeal.  It is noteworthy for our purposes, however, that in specifying the grounds in support of his allegation of inadequate representation in his Notice of Appeal, S.G.T. made a number of specific allegations about the alleged inadequacies of his counsel but made no mention of counsel’s consent to the admission of the e-mail.  The only ground of appeal relating to the e-mail was an allegation that the “trial judge erred in placing excessive weight” on this item of evidence.

[35] More importantly,  in deciding whether there was clear evidence that ought to have triggered the need for the trial judge to raise the issue on his own motion, an appellate court must consider the question from the perspective of the trial judge at the time the decision was made.

[36] Here, the most significant circumstance is that the defence consented to the admission of the evidence.  In an adversarial system of criminal trials, trial judges must, barring exceptional circumstances, defer to the tactical decisions of counsel:  see generally R. v. Lomage (1991), 2 O.R. (3d) 621 (C.A.), at pp. 629-30.  There is a “strong presumption” that defence counsel are competent in advancing the interests of their clients:  see R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27; Hodgson, at para. 99.  Moreover, counsel will generally be in a better position to assess the wisdom, in light of their overall trial strategy, of a particular tactical decision than is the trial judge.  By contrast, trial judges are expected to be impartial arbiters of the dispute before them; the more a trial judge second-guesses or overrides the decisions of counsel, the greater is the risk that the trial judge will, in either appearance or reality, cease being a neutral arbiter and instead become an advocate for one party.  For these reasons, this Court has previously held that the burden to raise evidentiary issues properly rests on the shoulders of counsel:  Hodgson, at para. 98.

[37] The corollary of the preceding is that trial judges should seldom take it upon themselves, let alone be required, to second-guess the tactical decisions of counsel.  Of course, trial judges are still required to “make sure that [the trial] remains fair and is conducted in accordance with the relevant laws and the principles of fundamental justice”:  Lavallee, Rackel & Heintz v. Canada (Attorney General), 2002 SCC 61, [2002] 3 S.C.R. 209, at para. 68.  However, reviewing the record from the perspective of the trial judge and taking into account the factors from I. (L.R.) which were discussed above, I find no basis to conclude that the trial judge ought to have interfered with the decision of counsel to consent to the admission of the evidence.  The relevant features of the record are the following.

[38] On the facts, it is difficult to find evidence of a connection between the two statements which should have alerted the trial judge to the need to conduct a voir dire and to question the wisdom of counsel.  In terms of the time span between the statements, the initial apology was made on May 27, 2004, while the e-mail was sent over five weeks later on July 5, 2004.  The inducement held out by the police, as found by the trial judge on the voir dire, was the suggestion that S.G.T. may not be charged if he apologized. However, by the time S.G.T. sent the e-mail, he had been charged notwithstanding his apology in the police statement.  It is therefore far from obvious on what basis the inducement could still be operative in the accused’s mind.  Additionally, there was no advertence to the previous inadmissible statement in the e-mail to A’s mother.  Finally, the two statements were made to different persons in entirely different circumstances.  The first statement was made to a police officer in the context of a custodial interrogation, while the second was made to A’s mother in an e-mail exchange relating to A’s mother’s attempt to secure S.G.T.’s permission to allow A and B to travel to California with her.  But, more importantly, as the accused’s later testimony in the trial revealed, it was his contention that the apology in the e-mail concerned a completely unrelated incident.  This exemplifies why trial judges should generally defer to the tactical decisions of counsel who generally know more about the case.  Given that the accused’s own version was contrary to any theory of a potential connection between the e-mail and the earlier confession, it is difficult to see on what basis counsel’s consent to the admissibility of the e-mail could be faulted.

[39] Based on this record, with respect, it is my view that the Court of Appeal erred in overturning the conviction on the basis that it did.

4.  Conclusion

[40] For these reasons, I would allow the appeal and set aside the order for a new trial.  As requested by both parties, I would remit this case to the Court of Appeal to consider S.G.T.’s remaining grounds of appeal.

The reasons of Binnie and Fish JJ. were delivered by

Fish J. (dissenting) —

I

[41] This appeal is the third chapter in a tale of two statements — closely related in subject matter, purpose and time.  Both statements bear a striking resemblance as well to a fable conceived and disingenuously recounted to the respondent by a police interrogator as a “personal experience” of his own.  The interrogator’s contrived “confidence” amounted, unmistakably, to an implied promise of leniency in exchange for a contrite admission of guilt.  There is no dispute that the purpose and effect of this stratagem was to induce the respondent to make an incriminating statement in the form of an apology to the complainant.

[42] Pursuant to a voir dire, the trial judge excluded the first of the two statements on the ground that it had been rendered involuntary by the police officer’s improper inducement.  The trial judge’s conclusion in this regard is not challenged on this appeal by the Crown.  Nor was it challenged in the Court of Appeal.

[43] The second statement was admitted without a voir dire and the respondent was ultimately convicted (2006 SKQB 234 (CanLII)).

[44] The Saskatchewan Court of Appeal set aside the respondent’s conviction and ordered a new trial (2008 SKCA 119, 237 C.C.C. (3d) 55).  Hence this third chapter of the saga — an appeal by the Crown urging us to reinstate the respondent’s conviction at trial.

[45] Unlike Justice Charron, and with the greatest of respect, I would affirm the unanimous judgment of the Court of Appeal.

[46] I agree with the Court of Appeal that the trial judge was legally bound to himself determine the admissibility of the respondent’s second “apology”.  It was tendered by the Crown as an incriminating statement by the accused.  And the trial judge then had in the record before him a clear indication that this second “apology” might be  a “derived confession”, inadmissible on account of its close connection to the statement he had earlier excluded. 

[47] The holding of a voir dire for this purpose was not subject to, or conditional upon, an objection by defence counsel: Its necessity was made apparent by the material already on the record when the Crown tendered the statement. 

[48] I hasten to add that we are not concerned in this case with a mere matter of form.  An informal voir dire will often suffice to determine whether a statement attributed to the accused ought to be admitted in evidence.  Here, however, the trial judge made no inquiry at all. 

[49] And the total failure of the trial judge to make any independent determination as to the admissibility of the impugned statement is necessarily fatal to the respondent’s conviction: According to the trial judge himself, the impugned statement was critical to the trial judge’s conclusion that the respondent was guilty as charged.

II

[50] The respondent, S.G.T., was married to A.T. from 1996 until 2000.  Their son B was born in 1997.  A.T. also had a daughter from a prior relationship, A, whom S.G.T. adopted in 2000.

[51] Shortly thereafter, the couple separated.  The split was acrimonious.  For the next three years, the children spent two nights each week, every other weekend, and one month in the summer at S.G.T.’s house.  A was 11 to 14 years old during that period. 

[52] In 2003, A told her mother she was uncomfortable spending the night at S.G.T.’s house.  When asked by A.T., she stated that S.G.T. had sexually assaulted her.  A.T. phoned the police, but did not call back when she was asked to do so.  No further action was taken until the following year when A told a school counsellor about the claimed assault.  The counsellor contacted the police, who launched an investigation.

[53] On May 27, 2004, S.G.T. was interviewed by a police officer.  During the interview, he was repeatedly told that the matter was “not a big deal” and “extremely minor”.  The police officer said that if he apologized it might not proceed any further, and that the biggest factor the Crown looked at was remorse. 

[54] One officer told S.G.T. a fabricated story according to which the officer had himself been arrested for slapping his son while on vacation in the United States.  In this entirely fictional story, the matter was resolved once the officer apologized.

[55] We do not have the audio or video tapes of S.G.T.’s interrogation.  With the benefit of those tapes, the Court of Appeal summarized the relevant facts this way:

On May 27, 2004, the appellant agreed to be interviewed by a police officer regarding the allegations.  During a two-hour interview, the officer repeatedly and emphatically urged the appellant to apologize to [A] all the while saying that [A]’s complaints were “not a big deal”, not a “heinous act” and amounted to a “very insignificant contact”, or something “extremely minor”.  The officer said it was not unlike smacking a child in public, and illustrated the point by recounting how he had been arrested for slapping his own child while on a holiday in the United States.  The officer told the appellant the child welfare authorities had even become involved, but he had taken responsibility for his behaviour, apologized, and all had been forgiven.  The story was entirely fabricated.

The officer explained to the appellant that the Crown would look at all the facts and ask whether it was in the public interest to proceed with the charges, or simply look at some kind of counselling instead.  The most important thing they looked at was an apology, and if the appellant just apologized the matter might not proceed.  He said he wasn’t trying to hang the appellant, he just wanted closure for the victim.  When the appellant expressed concern for the consequences, the officer assured him he would not lose his son, and he would not lose his job, and that the biggest factor the Crown looked at was remorse.  When the appellant thought he should consult with someone, the officer said only dishonest people needed lawyers.  The officer gave his word he would stick with the appellant throughout the matter.  The appellant then wrote out a form of apology to [A]. [Emphasis added; paras. 15-16.]

[56] The officer’s ruse achieved its intended purpose.  Believing the officer’s invented account of his own arrest to be true, S.G.T. wrote out the suggested apology.  Approximately four weeks later, he was charged with sexual assault.

[57] Five days after the charges were laid, and about three weeks before S.G.T.’s first court appearance, he sent the following e-mail to A.T. in response to her requests for his permission to take the children to California to visit A.T.’s parents:

Relax.  When have I ever not done something you’ve requested for the kids.  I’m busy too.  I have the letter and it’s notorized [sic].  I thought long and hard about keeping [B] back so I could spend this month with him in case I end up going to fucking jail on the 28th, but I wouldn’t do that to him.  I hope you realize that I will never be able to coach [B] or travel outside Canada for a holiday with him or work.  I may loose [sic] my job because of this.  I don’t care about you, but I very much hope that this will make [A] get and feel better.  I am so, so sorry if I caused her emotional pain.  I have to live with the fact that I lost someone I cared for deeply over my stupididty [sic].  And now I have to deal with [the] fact that I stand to loose [sic] everything I worked so hard for.  I’m sure this makes you happy.  You better hope for your sake you never make a mistake bringing up [B].

You can pick the letter up out of my mailbox, I have a commitment I have to be at tonight.  Make sure [B] calls me at least once a week, I showed him how to dial collect.

S.G.T. was not represented by counsel when he wrote the e-mail.

[58] S.G.T. was tried in the Court of Queen’s Bench for Saskatchewan before a judge sitting alone.  At trial, Scheibel J. conducted a voir dire regarding the apology  S.G.T. had written out under the officer’s direction during his interrogation.  Understandably, Justice Scheibel found that the apology had been improperly induced by the interrogating officer.  He concluded that the Crown had failed to prove its voluntariness, as required by law.  Justice Scheibel therefore excluded the apology.  As mentioned earlier, the Crown did not attack this finding in the Court of Appeal.

[59] A.T., A, and S.G.T. all testified at trial.  During the direct examination of A.T., the Crown asked her to identify and describe the e-mail from S.G.T.  The Crown then sought to have the e-mail admitted in evidence.  Defence counsel, asked by the trial judge whether there was “any objection”, replied “No, My Lord.”  The e-mail, in effect a second “apology”, was held admissible on this basis, without any inquiry or consideration regarding its connection to the previously excluded “apology”.

[60] In his reasons convicting S.G.T., Justice Scheibel found that the case turned on credibility and that the e-mail had been crucial to his conclusion that S.G.T. was not credible.

[61] As I have already mentioned, the Saskatchewan Court of Appeal allowed S.G.T.’s appeal.  Wilkinson J.A., writing for a unanimous court, held that the trial judge had erred in law by failing to hold a voir dire to determine the admissibility of the e‑mail.  She found that there was sufficient reason to believe that the e-mail was a tainted statement, or “derived confession”, causally connected to the earlier inadmissible statement, and that a voir dire was therefore mandatory.

[62] Wilkinson J.A. rejected the Crown’s submission that there was an insufficient connection between the two statements, since the only proper way to test that submission on its merits was by conducting a voir dire — which the trial judge had failed to do.

III

[63] The confessions rule serves to exclude involuntary statements made to persons in authority.  The derived confessions rule is a corollary of the confessions rule.  It excludes statements that are so closely connected to inadmissible confessions as to be “tainted” by association and, for that reason, inadmissible as well. 

[64] The derived confessions rule thus excludes statements that, while not inadmissible when considered in isolation, are excluded because of their temporal or causal connection to another statement found by the court to be inadmissible.  This  occurs whenever “either the tainting features which disqualified the first confession continued to be present or . . . the fact that the first statement was made was a substantial factor contributing to the making of the second statement”:  R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504, at p. 526. 

[65] The question is a contextual one, aimed at determining the degree of connection between the two statements.  In I. (L.R.), the Court identified as relevant factors “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” (p. 526).

[66] In short, derived confessions are inadmissible not because they are themselves involuntary statements made or given to a person in authority, within the meaning of Ibrahim v. The King, [1914] A.C. 599 (P.C.), and its progeny, but because they are “tainted”, or contaminated, by another inadmissible statement.  The governing principle was well and succinctly put this way by Bastarache J., speaking for the majority in R. v. G. (B.), [1999] 2 S.C.R. 475, at para. 23:

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.

And the sufficiency of the required connection must be determined by the trial judge on a voir dire. 

[67] Our concern here is with the admissibility of an e-mail found by the trial judge to be incriminating.  Defence counsel did not request a voir dire.  Quite properly, the trial judge recognized that no such request was essential. 

[68] The trial judge appears to have recognized as well that the admissibility of the e-mail was open to question in view of the circumstances in which it was sent: He would not otherwise have thought it necessary to inquire whether defence counsel objected to its admission.  Unfortunately, instead of proceeding with the required voir dire, the trial judge admitted the e-mail upon asking defence counsel whether there was “any objection”, and receiving a negative reply.

[69] Counsel can, of course, make admissions of fact that provide a sufficient evidentiary basis for the judicial determination that is the object of a voir dire.  As a matter of principle, however, judicial determinations cannot be delegated to counsel.  Thus, while admissions of fact may render unnecessary the calling of evidence, the legal effect of that evidence is for the judge alone to determine.

[70] I nonetheless accept, for present purposes only, that counsel can admit the voluntariness of a statement and even concede its admissibility in appropriate circumstances — for example, where that would be the judge’s inevitable finding on a voir dire. 

[71] But that is not our case. Counsel made no admissions of fact concerning the admissibility of the tendered statement.  Nor did he expressly concede its admissibility as a matter of law.

[72] And no such determination was made by the trial judge either.

IV

[73] Justice Charron would reverse the decision of the Court of Appeal and reinstate the respondent’s conviction on two grounds: First, because defence counsel did not object to admission of the e-mail; second, because my colleague sees no obvious connection between the e-mail and the earlier inadmissible statement to police.  I respectfully disagree with my colleague on both grounds.

[74] With regard to the first ground, I repeat here what I stated earlier: As a matter of law, no objection was required.  Where there is reason for concern about a statement tendered by the Crown, on account of its close connection with an earlier statement found on a voir dire to be inadmissible, the admissibility of the second statement also falls to be decided on a voir dire.

[75] This was made clear in G. (B.), which likewise concerned a derived confession, in that case made to a psychiatrist.  Speaking for six members of the Court, Bastarache J. noted that defence counsel had “accepted” the psychiatrist’s report containing the incriminating statement in issue and did not object to the Crown’s use of the report on its cross-examination of the accused (para. 48).  Justice Bastarache then stated:

The law on the question is clear. Despite s. 672.21(2) and (3) [of the Criminal Code , which deal with “protected statements”], it had to be determined whether the protected statement was admissible in light of its degree of connection with the prior confession which was found to be inadmissible. This degree of connection can only be assessed during a voir dire, which was accordingly mandatory (see [Erven v. The Queen, [1979] 1 S.C.R. 926]). By this I do not mean that there must be a voir dire on the voluntariness of the protected statement in every case; once again, this is a question that will have to be determined in another case. I am merely confirming that there must be a voir dire where, as here, the issue of whether the admission was derived from a prior inadmissible confession arises.

Whether the possibility of waiving the voir dire or consenting to the use of the protected statement is based on s. 672.21(2) or whether it has a more general foundation (see in this regard R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.)), it is well established that “[s]ilence or mere lack of objection does not constitute a lawful waiver” (see Park v. The Queen, [1981] 2 S.C.R. 64, at p. 74).  In the circumstances, the Crown cannot argue that the situation was otherwise. [Emphasis added; paras. 50-51.]

[76] In G. (B.), moreover, the Crown had alleged waiver by the accused of his right to a voir dire; in this case, the Crown, understandably, did not allege waiver either in the Court of Appeal or in this Court.

[77] I turn now to the second ground relied on by Justice Charron in concluding as she does.  In my colleague’s view, there was no obvious connection between S.G.T.’s e-mail to his former spouse and his earlier inadmissible statement to police. 

[78] On the contrary, and with respect, I believe there was ample evidence on the record to alert the trial judge to the need for a voir dire.  The judge had already excluded the initial confession written by S.G.T. during the police interrogation, and was thus familiar with the inducements that had provoked it.

[79] The e-mail was strikingly similar to the excluded statement.  In both instances, S.G.T. apologizes and expresses regret “if I caused [A] emotional pain”, and hopes his apology and expression of regret “will make [A] get and feel better” (I quote here from his e-mail). 

[80] The timing of the e-mail should have raised red flags as well.  The e-mail was written and sent by S.G.T. shortly before his first appearance in court.  In the officer’s fabricated story about his own arrest, he “explained to the appellant that the Crown would look at all the facts and ask whether it was in the public interest to proceed with the charges” (Court of Appeal, at para. 16 (emphasis added)).  Here, the apology was made after the charges were laid but before the first court appearance, when it remained a live issue whether the Crown would proceed with “some kind of counselling instead” (ibid.)  And it must be remembered in this regard that the police officer had “[given] his word he would stick with the appellant throughout the matter”  (ibid.).

[81] Moreover, the improper inducements present when the inadmissible statement was given to the police — notably, the promise of leniency in exchange for a showing of remorse — were still operative.  It was long ago recognized that promises of this type have a more enduring effect than threats: F. Kaufman, The Admissibility of Confessions (3rd ed. 1979), at p. 146.  Nothing had intervened to neutralize its effect on the respondent.  And no new evidence had subsequently been discovered, nor had S.G.T. retained counsel in the interval between the statements. 

[82] In these circumstances, cumulatively considered, the connection between the two statements was apparent from the record and should have alerted the trial judge to the need for a voir dire to determine whether “the degree of connection between the two statements [was] sufficient for the second to have been contaminated by the first” (G. (B.), at para. 23).

[83] The Crown submits in response that clear evidence of a connection does not suffice to trigger the trial judge’s obligation to hold a voir dire, and this for two reasons.  The first centres on the “person in authority” requirement for exclusion under the confessions rule.  The Crown contends that this requirement applies to derived confessions as well.

[84] G. (B.) hardly supports this view.  In that case, the derived confession was made to a psychiatrist and the Court, in holding that a voir dire was required, found it unnecessary to determine whether the psychiatrist was a person in authority:

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. [Emphasis added; para. 22.]

If a statement can be excluded as a derived confession without determining whether it was made to a person in authority, it surely cannot be said that a derived confession will only be excluded if it is made to a person in authority.  On the contrary, the Court in G. (B.) found the second statement inadmissible whether or not the psychiatrist to whom it was made was a person in authority.  The statement was excluded on the sole ground that it was “contaminated” by the earlier confession.  In this sense, “contamination” will be established “where there is a sufficient connection between the two statements” (G. (B.), at para. 22).  See, to the same effect, I. (L.R.), at pp. 521-22.  Nothing in G. (B.) limits this principle to derived confessions that explicitly repeat an earlier confession found to be inadmissible. 

[85] As a matter of principle and logic, it seems clear to me that derived confessions need not be made to a person in authority in order to be found inadmissible.  The purpose of the rule — to exclude statements with a sufficient connection to a prior inadmissible statement — would be frustrated if such a requirement were strictly enforced.  Whether or not the subsequent statement was made to an authority figure, if it is prompted by the same police conduct that resulted in the earlier confession, or if it discloses the contents of the earlier statement made to authorities, it is a product of the inadmissible confession and is itself inadmissible on that ground alone.  Of course, whether the statement is made to police will be a relevant factor in determining whether the required connection between the two statements has been made out.

[86] Second, the Crown relies on the fact that the defence offered a different explanation for the e-mail at trial.  At trial, it was contended that the apology referred to an unrelated incident in which S.G.T. had allowed A and her friends to drink wine coolers at a sleepover.  In this Court, the Crown relied on the wine cooler explanation to argue that there was no need for a voir dire on the admissibility of the e-mail.

[87] I find the Crown’s submission regarding these varying explanations unconvincing on its face, and would in any event reject it as a backward-looking justification for the trial judge’s failure to determine the admissibility of the apology at the relevant time — when it was tendered as part of the prosecution’s case against the respondent. 

[88] The Crown cannot now  rely on what the trial judge could not then have known — evidence later adduced by the defence — to retroactively validate the judge’s failure to hold a voir dire when the record before him required him to do so.

V

[89] For all of these reasons, as stated at the outset, I would dismiss the appeal and affirm the judgment of the Saskatchewan Court of Appeal quashing the respondent’s conviction and ordering a new trial.

Appeal allowed, Binnie and Fish JJ. dissenting.

Solicitor for the appellant:  Ministry of Justice and Attorney General, Regina.

Solicitors for the respondent:  McDougall Gauley, Regina.