Confirmation of the fallacy ‘two wrongs do not make a right’ was recently given by the Supreme Court of Canada in R. v. Wittwer, 2008 SCC 33 (S.C.C.). Here the Court considered the admissibility of an incriminatory statement made by the accused to the police.
Briefly the facts are that five months prior to the accused making incriminatory statement in question, the accused made two incriminatory statements to the police, that all parties agreed were inadmissible due to a violation of his Charter Rights. In a later interview the police then asked the accused about the two previous incriminatory statements. As a direct result of this line of questioning the accused made the incriminating statement in question. The accused sought to challenge the admissibility of his third statement.
The Court held:
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.
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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.
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).
R. v. Wittwer makes it clear that should a statement made by the accused have a temporal, contextual, or causal connection to an inadmissible statement previously made by the accused the later is also inadmissible. Consequently the Supreme Court has confirmed two wrongs do not make a right.
