The durability of inducements

R v SGT [2010] SCC 20 (27 May 2010) gives us a reminder of some fundamentals about life and law.

• A person who would, if charged with a particular offence, plead not guilty, should not confess guilt to the police.
  
• Nor should he rely on any suggestion from the police that if he confesses he will not be charged.
  
• Nor should he confess guilt to any person who could be called as a witness against him.
  
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These self-evidently sensible stratagems seem often to be overlooked, and when they are it is difficult for defence counsel to get such blithe confessions excluded. The second sort of confession listed above should, if there is evidence that it occurred as a result of an improper inducement by a person in authority, be excluded, but confessions to people who do not exercise a relevant authority are almost impossible to exclude. There would need to be shown to be some unfairness in using the evidence, if there was no operative improper inducement.

There are some distinctions in terminology that can make discussion more precise. As Charron J, delivering the majority judgment in SGT, held at 20, the term "admission" is apposite for a confession made to someone who is not in authority, and "confession" is a confession made to a person in authority. The different usage is just a reminder that the confession rules apply to the latter but not to the former. Any statement, whether an admission or a confession, must always be voluntary. Charron J set out (21-23) the relevant aspects of the "person in authority" requirement which had been addressed in R v Hodgson, 1998 CanLII 798 (S.C.C.), [1998] 2 S.C.R. 449. After explaining why that didn't apply in SGT, she then considered the "derived confessions rule", the leading case on which is R v I (LR) and T (E), 1993 CanLII 51 (S.C.C.), [1993] 4 S.C.R. 504.

This rule can be thought of as embracing at least some of the fairness considerations that could be relevant. Essentially it recognises that there can be situations where an earlier inducement by a person in authority continues to operate on the accused's mind and to influence his decision to make a subsequent confession to someone else. The latter confession is not then the free and voluntary product of the accused's will. Was the factor that tainted the original confession a substantial cause of the second? Relevant considerations can be the time between the statements, whether the second was made by reference to the first, whether there were other similarities in the circumstances in which the two statements were made, whether the second could have been prompted by new evidence (Charron J at 29).

This derived confessions rule has applied, as the terminology indicates, to confessions, and the question now was whether it also applied to admissions (30).

Here the Court split:

"[32] I respectfully disagree with Fish J. that "as 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. 44). 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.)
[1999 CanLII 690 (S.C.C.), [1999] 2 S.C.R. 475] 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."

It was not necessary for the majority to decide the point, it being sufficient for the purposes of this case to assume that it was arguable that the second statement could be excluded if there were to be a sufficient evidentiary basis connecting the earlier inducement to the second statement. This could be, if not on a common law derived confessions basis, "perhaps on a Charter basis" (33):

"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)."

It was significant here that the defence had consented to the admission of the second statement, and that the trial judge was entitled to rely on counsel making responsible tactical decisions (36-37). The record of the evidence did not suggest that such an objection would have succeeded: there was not the required evidentiary link between the inducement and the second statement.

This ground of appeal having failed, the case was remitted to the Saskatchewan Court of Appeal for determination of other appeal grounds.