R. v. Wittwer, 2008 SCC 33, [2008] 2 SCR 235

                                                 SUPREME COURT OF CANADA

Between:

Dieter Helmut Wittwer

Appellant

and

Her Majesty The Queen

Respondent

‑ and ‑

Attorney General of Ontario

Intervener

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

______________________________

R. v. Wittwer, [2008] 2 S.C.R. 235, 2008 SCC 33

Dieter Helmut Wittwer                                                                                                      Appellant

v.

Her Majesty The Queen                                                                                                 Respondent

and

Attorney General of Ontario                                                                                            Intervener

Indexed as:  R. v. Wittwer

Neutral citation:  2008 SCC 33.

File No.:  32130.

2008:  April 15; 2008:  June 5.

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

on appeal from the court of appeal for british columbia

Constitutional law — Charter of Rights  — Exclusion of evidence — Police officer obtaining incriminating statement from accused after confronting him with prior statement made by accused in violation of his constitutional right to counsel — Trial judge admitting last statement and convicting accused — Whether last statement tainted by prior statement obtained by police in violation of accused’s constitutional right — If so, whether last statement should have been excluded — Canadian Charter of Rights and Freedoms, s. 24(2) .

The accused made an incriminating statement, after four hours of resistance, immediately after being confronted by the interrogating officer with a prior statement obtained from him in violation of his constitutional right to counsel.  The trial judge admitted the latter statement and convicted the accused on three counts of sexual interference.  The Court of Appeal upheld the convictions.

Held:  The appeal should be allowed and a new trial ordered.  The impugned statement should have been excluded pursuant to s. 24(2)  of the Canadian Charter of Rights and Freedoms .

A statement is tainted by an earlier breach of an accused’s constitutional rights if the breach and the impugned statement can be said to be part of the same transaction or course of conduct.  Here, the required connection between the two statements was direct and obvious.  It was temporal, causal and, to some extent, contextual.  The interrogating officer concluded that he would not obtain the incriminating admissions sought unless he confronted the accused with the latter’s earlier inadmissible statement.  He therefore proceeded to do so.  In this way the interrogating officer made use, knowingly and deliberately, of an earlier statement that the police themselves had obtained from the accused in a manner that infringed his Charter  rights.  This alone was sufficient to taint the subsequent statement and to cry out for its exclusion pursuant to s. 24(2)  of the Charter .  To hold otherwise would be to invite the perception that the police are legally entitled to reap the benefit of their own infringements of a suspect’s constitutional rights.  And this would bring the administration of justice into disrepute.  [21-22] [25‑26]

Cases Cited

Applied:  R. v. Strachan, [1988] 2 S.C.R. 980; referred to:  R. v. Plaha (2004), 189 O.A.C. 376; R. v. Goldhart, [1996] 2 S.C.R. 463; R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504.

Statutes and Regulations Cited

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

Criminal Code, R.S.C. 1985, c. C‑46, s. 151 .

APPEAL from a judgment of the British Columbia Court of Appeal (Saunders, Levine and Kirkpatrick JJ.A.) (2007), 242 B.C.A.C. 230, 400 W.A.C. 230, 219 C.C.C. (3d) 449, 156 C.R.R. (2d) 43, [2007] B.C.J. No. 948 (QL), 2007 CarswellBC 986, 2007 BCCA 275, upholding a conviction on three counts of sexual interference.  Appeal allowed.

Gil D. McKinnon, Q.C., for the appellant.

Susan J. Brown, for the respondent.

Gillian Roberts and David Friesen, for the intervener.

The judgment of the Court was delivered by

Fish J. —

I

[1]     This appeal turns on the admissibility of an incriminating statement made by the appellant to the police upon being confronted with an earlier statement obtained from him in violation of his constitutional rights.

[2]     Initially, the interrogating officer attempted to insulate the confession he hoped to secure on this occasion from two earlier statements impermissibly obtained by his colleagues.  But what the officer properly intended as a “fresh start” soon foundered.  After more than four hours of fruitless interrogation, he and the appellant — in the officer’s words — were “at loggerheads”. 

[3]     As a last resort, the officer thus returned to where his colleagues had left off:  He confronted the appellant with the appellant’s prior inadmissible statements or, at least, one of them.  Only then did the interrogating officer induce the appellant to make the incriminating admissions he had otherwise been unable to secure.  What began as a  permissible fresh start thus ended as an impermissible interrogation inseparably linked to its tainted past.

[4]     The interrogating officer knew that the earlier statements had both been obtained in a manner that infringed the appellant’s right to counsel under the Canadian Charter of Rights and Freedoms .  He evidently understood as well that his use of the prior statements in this third interrogation would jeopardize the admissibility of any admissions obtained as a consequence.  That is why he refrained for more than four hours from invoking the prior statements though he believed, as we shall see, that this alone would get Mr. Wittwer to incriminate himself.

[5]     For these reasons, and the reasons that follow, I would allow the appeal, set aside the appellant’s convictions, and order a new trial. 

II

[6]     Dieter Helmut Wittwer, who was 71 years old at the time of trial, stands convicted of three counts of sexual interference, contrary to s. 151  of the Criminal Code, R.S.C. 1985, c. C-46 .  The offences are alleged to have been committed between January 1, 1998 and July 14, 2003.  Each count alleges a different victim: SLR, who was between two and six at the time; CMF, who was between six and seven; and SMF, who was between five and six.

[7]     As mentioned earlier, the appellant gave three statements to the police. There is no dispute that the appellant’s first and second statements were both obtained in a manner that infringed his constitutional rights.  The respondent makes this plain in its factum (at para. 7):

The Crown did not seek to tender in evidence either of the two previous statements, conceding that each was obtained in violation of s. 10(b) [of the Canadian Charter of Rights and Freedoms ].

[8]     Mr. Wittwer appeals on the ground that his third statement, given while he was in custody on another charge, was likewise obtained in violation of his right to counsel and should have been excluded under s. 24(2)  of the Charter .

[9]     Mr. Wittwer was first questioned, by Constable Samuel Ghadban, on July 29, 2003, at the Kamloops Regional Correctional Centre where he was then detained on an unrelated charge.  The interview lasted 1 h 40 min.  In the course of that interview, the appellant recounted an incident that was said to have occurred three or four months earlier — an incident described in the courts below as a “bizarre” sexual encounter involving two of the three complainants.

[10] Shortly thereafter, the Crown realized that Constable Ghadban had failed to properly inform the appellant of his right to counsel and that the statement might for that reason be inadmissible at trial.  After some discussion, the police decided to again question the appellant.

[11] The second interview was conducted by Constable David Helgason, who informed Mr. Wittwer properly of his right to counsel but hindered its exercise by making no effort to enable the appellant to contact his lawyer.  The interview was not videotaped and the audio recording was of poor quality.  Recognizing that the appellant’s second statement was therefore of doubtful admissibility, the police decided to question him once again — for the third time. 

[12] The third interview, which is our concern here, was conducted by Sergeant Cary Skrine.  That interview lasted almost five hours.  Sergeant Skrine began by informing Mr. Wittwer of his right to counsel.  Sergeant Skrine also told Mr. Wittwer that his decision whether to answer his questions should not be influenced by anything he had previously said to other police officers.  Sergeant Skrine did not inform Mr.  Wittwer that his prior statements might be inadmissible against him at his trial.  And he claimed, as a matter of strategic misinformation, that he had no knowledge of the content of those statements.

[13] Sergeant Skrine questioned the appellant about the sexual encounter he had described in the first two interviews.  The appellant, however, repeatedly told Sergeant Skrine to “talk to ‘Sam’ [Constable Ghadban]”, and persisted for more than four hours in his refusal to discuss the matter with Sergeant Skrine. 

[14] Sergeant Skrine testified that he and the appellant remained “at loggerheads”.  He felt that the only way to get the appellant to incriminate himself was to acknowledge that he knew about the sexual encounter described by the appellant in the first two interviews.  Sergeant Skrine concluded that there was only one way he could get the appellant “to talk”.  In the officer’s words:

. . . I felt that if he were going to make admissions with regard to those assaults, that he would only do it if he knew that I knew about his conversation with Constable Ghadban [who had taken the appellant’s first statement]. [A.R., at p. 157]

[15] Sergeant Skrine’s conclusion proved correct.  On his return to the interview room  after leaving briefly to consult with Constable Ghadban, Sergeant Skrine informed the appellant that he now knew what the appellant had told Constable Ghadban.  Only then did the “gates ope[n]”: The appellant proceeded immediately to give the statement that he had until then resolutely refused to provide (A.R., p. 12, judgment on the voir dire, at para. 27).

[16] The trial judge found that Sergeant Skrine’s purpose was to obtain “an independent statement, independent, that is, of the two earlier statements given to Constable Helgason and Constable Ghadban” (A.R., p. 6, judgment on the voir dire, at para. 10). The appellant persisted, however, in declining to say what the officer wanted to hear — until Sergeant Skrine told him, for the first time, that he knew what the appellant had already told Constable Ghadban.

[17] The trial judge nonetheless concluded that there was a “significant temporal separation” between the impugned statement and the statement given to Constable Ghadban some five months earlier.  The judge found, moreover, that the causal connection between the two statements was relatively weak; that the statement taken by Sergeant Skrine was not tainted by any defect in the initial statement; and that it was therefore admissible against Mr. Wittwer.  And he convicted Mr. Wittwer on all three counts of sexual interference, contrary to s. 151  of the Criminal Code .

[18] The British Columbia Court of Appeal agreed substantially with the trial judge and upheld the appellant’s convictions: (2007), 219 C.C.C. (3d) 449, 2007 BCCA 275. 

III

[19] In determining whether a statement should be excluded under s. 24(2)  of the Charter , the court must be satisfied (i) that the evidence was obtained in a manner that infringed or denied any of the rights or freedoms guaranteed by the Charter ; and (ii) that the admission of the evidence in the proceedings would bring the administration of justice into disrepute: R. v. Strachan, [1988] 2 S.C.R. 980.

[20] The decisive question on this appeal is whether the appellant’s third statement was tainted by the Charter  breaches that marred the appellant’s earlier statements relating to the same charges.

[21] In considering whether a statement is tainted by an earlier Charter  breach, the courts have adopted a purposive and generous approach.  It is unnecessary to establish a strict causal relationship between the breach and the subsequent statement.  The statement will be tainted if the breach and the impugned statement can be said to be part of the same transaction or course of conduct:  Strachan, at p. 1005.  The required connection between the breach and the subsequent statement may be “temporal, contextual, causal or a combination of the three”: R. v. Plaha (2004), 189 O.A.C. 376, at para. 45.  A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45. 

[22] In this case, I am satisfied that the connection is temporal, in the sense that mention of the first inadmissible statement (the “Ghadban statement”) was followed immediately by the appellant’s statement to Sergeant Skrine.  The connection is causal as well, in the sense that the impugned statement was elicited after more than four hours of resistance by the appellant and — as the interrogator expected — as a result of the interrogator’s reference to the Ghadban statement.  In this regard, I again reproduce Sergeant Skrine’s prescient observation: “I felt”, he testified, “that if he were going to make admissions with regard to those assaults, that he would only do it if he knew that I knew about his conversation with Constable Ghadban”.  Finally, I am satisfied that the connection between the impugned statement and its inadmissible predecessors is to some extent contextual, in that any prior gap between the two was intentionally and explicitly bridged by Sergeant Skrine’s association of one with the other in the course of his interrogation of the appellant with Constable Ghadban’s watchful assistance.  On any view of the matter, the connection required under Goldhart and Plaha has plainly been established.

[23] In this regard, I consider particularly apt the observations of Sopinka J., speaking for a unanimous Court in R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504, at pp. 526-27:

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. . . .

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. . . .

In these cases the fact that a caution or warning had been given or that the advice of counsel had been obtained between the two statements was a factor to be considered but it was by no means determinative.  While such an occurrence went a long way to dissipate elements of compulsion or inducement resulting from the conduct of the interrogators, it might have little or no effect in circumstances in which the second statement is induced by the fact of the first.  [Emphasis added.]

[24] Justice Sopinka found in that case that the existence of the first statement was a substantial factor in the making of the second statement and, accordingly, that the latter statement was inadmissible on the common law test.  Justice Sopinka took care to add that, had it been necessary, he would also have excluded the second statement under s. 24(2)  (p. 532).

[25] I would do so here.  In my view, the required connection between the first statement and the third statement is direct and obvious.  If Sergeant Skrine had not acknowledged that he was already aware of what the appellant had told Constable Ghadban, the appellant would not have reiterated the same incriminating admissions. What we have here, then, is not a suspect’s change of heart but an interrogator’s fatal change in strategy.

[26] With a view to obtaining these incriminating admissions from the accused, the police knowingly and deliberately made use of an earlier statement that they themselves had obtained from the appellant in a manner that infringed his constitutional rights under the Charter .  This alone is sufficient to taint the subsequent statement and to cry out for its exclusion under the principles set out in Strachan.  To hold otherwise is to invite the perception that the police are legally entitled to reap the benefit of their own infringements of a suspect’s constitutional rights.  And this, in my view, would bring the administration of justice into disrepute.

IV

[27] For all of these reasons, I would allow the appeal, set aside the appellant’s convictions, and order a new trial.  With respect to the other grounds raised, I find it necessary to add only that none would have sufficed to allow the appeal.  More particularly, I do not believe Sergeant Skrine was required to disclose to the appellant the legal advice given to the police by Crown counsel regarding the admissibility of the appellant’s earlier statements. 

Appeal allowed.

Solicitor for the appellant:  Gil D. McKinnon, Vancouver.

Solicitor for the respondent:  Attorney General of British Columbia, Vancouver.

Solicitor for the intervener:  Attorney General of Ontario, Toronto.