When does official impropriety cease to taint the subsequent obtaining of evidence? In particular, when does an improperly obtained statement taint the subsequent obtaining of another statement about the same matter? This was the topic under consideration in R v Wittwer [2008] SCC 33 (5 June 2008).
The Supreme Court of Canada did not here need to make any new law: this case simply required an application of the principles that have been recognised: it is not necessary that there be a causal link between the improperly obtained evidence and the challenged evidence, but any one or more of the following sorts of connection is sufficient to taint the challenged evidence: a causal connection, a temporal connection, or a contextual connection.
“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: R. v. Strachan 1988 CanLII 25 (S.C.C.), [1988] 2 S.C.R. 980 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 CanLII 21043 (ON C.A.), (2004), 189 O.A.C. 376, at para. 45. A connection that is merely “remote” or “tenuous” will not suffice: R. v. Goldhart, 1996 CanLII 214 (S.C.C.), [1996] 2 S.C.R. 463, at para. 40; Plaha, at para. 45.”
Here, the accused had been interviewed three times. The first interview was improperly conducted in that the accused was not informed of his right to legal advice. The second interview, conducted immediately afterwards once the police realised their error, was improperly conducted in that although the accused was advised of his right to counsel, no opportunity to exercise it was given (also, the interview was not videotaped and the audio tape was of poor quality). The police realised that these two interviews were of doubtful admissibility – and indeed at trial the prosecution did not seek to adduce them against the accused – so a third interview was conducted. The accused was given an opportunity to obtain legal advice but he did not wish to do so, and he refused to answer questions, simply referring the officer to the constable to whom he had spoken first. After more than four hours of this refusal to answer questions, the officer decided he could only break the impasse by speaking to the first interviewing officer. After this was done, the accused gave the statement the admissibility of which was now challenged.
I can imagine that some courts would look at this broadly, saying that the failure to advise the accused of his right to legal advice in the first interview (and the failure to facilitate the obtaining of such advice in the second) did not matter, because, as it turned out, the accused did not want to speak to a lawyer. That would be to improperly impose waiver on the accused, because to be effective waiver must be informed and freely given and here it was not informed at the time of the breach. Would the waiver argument be stronger if the accused had said, when told of his right to legal advice in the second and third interviews, “Yes, I know all about my rights to get legal advice before I talk to you, but I don’t want to speak to a lawyer”?
In this case there were three connections between the impropriety and the obtaining of the challenged evidence: there was a temporal connection (the accused had immediately started to answer questions after the officer had returned from – apparently - speaking to the first interviewer), a causal connection (the more than four hours of resistance to answering questions was overcome), and a contextual connection (the gap between the improperly obtained evidence and the challenged evidence was bridged by the interviewing officer’s association of the two statements in the third interview).
Therefore, the challenged evidence was tainted by breach of the Charter right, and the Court, in a unanimous judgment delivered by Fish J, was satisfied that admission of the evidence would bring the administration of justice into disrepute. A new trial was ordered.
The determination of when impropriety extends to the obtaining of subsequent evidence is sometimes addressed as a question of whether the impropriety has sufficiently attenuated so as to not taint the subsequent evidence. Causal analysis may be used here, but, as this case illustrates, causation is not the only consideration.
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