La règle des confessions dérivées vue par la Cour d'appel de l'Ontario

R. v. M.D., 2012 ONCA 841

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[53]      The derived confessions rule is a common law rule that governs the admissibility of a confession that has been preceded by an involuntary, thus inadmissible confession. The derived confessions rule is not a per se or bright line rule that excludes all subsequent confessions on the ground that they are tainted, irrespective of the degree of their connection to the prior inadmissible statement: R. v. I (L.R.) and T. (E.), 1993 CanLII 51 (SCC), [1993] 4 S.C.R. 504, at p. 526; and R. v. Hobbins, 1982 CanLII 46 (SCC), [1982] 1 S.C.R. 553, at p. 558.

[54]      To determine whether a subsequent statement will be excluded under the derived confessions rule because of the taint left by its involuntary and thus inadmissible predecessor, a trial judge must examine all the relevant circumstances to determine the degree of the connection between the two statements: T. (E.), at p. 526.  The Supreme Court of Canada has set out some of the relevant circumstances or factors to consider in determining the degree of connection between the two statements, and thus the influence of the antecedent taint: see T. (E.), at p. 526; Hobbins, at p. 558; and R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 S.C.R. 475, at para. 21. These include but are not limited to:

•                    the time span between the statements;

•                    advertence to the earlier statement during questioning in the subsequent interview;

•                    discovery of additional information after completion of the first statement;

•                    the presence of the same police officers during both interviews; and

•                    other similarities between the two sets of circumstances.

 

[55]      The application of these factors will render a subsequent statement involuntary if either the tainting features that disqualified the first continue to be present, or if the fact that the first statement was made was a substantial factor that contributed to the making of the second statement: T. (E.), at p. 526; G. (B.), at paras. 21 and 23. It will generally be easier to establish that tainting affected the first when both these conditions are present. In the end, however, what matters most and mandates exclusion is that the connection is sufficient for the second to have been contaminated by the first: G. (B.), at para. 23.

[56]      The inquiry required when the derived confessions rule is invoked to exclude a subsequent statement is essentially a causation inquiry that involves a consideration of the temporal, contextual, and causal connections between the proffered and earlier statements: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 188 C.C.C. (3d) 289 (Ont. C.A.), at para. 46. The inquiry is a case-specific factual inquiry: R. v. Simon, 2008 ONCA 578, 269 O.A.C. 578, at para. 69.

[57]      Despite its origins as a common law rule where lack of voluntariness is the contaminating factor, the derived confessions rule is of more general application.  The contaminating factor may be constitutional infringement, say a breach of s. 10(b) of the Charter. There, the subsequent statement is tainted if the breach and impugned statement can be said to be part of the same transaction or course of conduct. The admissibility analysis in these cases is performed under s. 24(2) of the Charter: R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 21; Simon, at para. 69; and Plaha, at paras. 42-45.

[58]      The derived confessions rule may also be engaged where the contaminant in the prior statement is a failure to comply with s. 146(2) of the YCJA, or its predecessor, s. 56 of the Young Offenders Act, R.S.C. 1985, c. Y-1, as repealed by Youth Criminal Justice Act, S.C. 2002, c. 1: T. (E.), at p. 527; R. v. S.G.T., 2010 SCC 20, [2010] 1 S.C.R. 688, at para. 28.

[59]      To determine whether the derived confessions rule will warrant exclusion of a subsequent statement, a trial judge must follow a contextual and fact-based approach: S.G.T, at para. 29. The nature of the inquiry and the findings required in the derived confessions analysis have implications for the scope of appellate review. The admissibility of a confession that has been preceded by an involuntary (or otherwise) inadmissible confession, in other words, the application of the derived confessions rule, involves a factual determination based on factors designed to ascertain the degree of connection between the two statements: T. (E.), at p. 526. This determination, like a determination of whether a statement is voluntary or compliant with s. 146(2) YCJA, is largely a question of fact. Appellate review of the judge’s decision is limited to deciding whether the judge erred in her assessment of the evidence, failed to consider relevant circumstances, or failed to apply the correct principles: T. (E.), at p. 526; R. v. McIntosh (1999), 1999 CanLII 1403 (ON CA), 141 C.C.C. (3d) 97 (Ont. C.A.), at paras. 21-22.