The Supreme Court of Canada released R. v. S.G.T. today, a criminal law case where the accused in a sexual assault of a minor had sent an e-mail to the mother of the alleged victim. Although the mother had contacted the police at one time, she had failed to follow through. It was only when the accused independently reported the complaints to a high-school counselor that the charges were laid.
The case centered on credibility, and whereas the Crown claimed the e-mail was in response to the charges, the accused claimed that it was in connection with an unrelated event. Inducement by police officers was also offered in defence, but there was no objection by counsel for the admission of the evidence.
No voir dire was held at trial to determine the admissibility of the e-mail, which was the basis for the Saskatchewan Court of Appeal reversing the conviction. A voir dire was held regarding a prior statement to the police, who allegedly suggested that an apology was all that may be needed to make the situation go away, and was excluded at trial.
Charron, J. for the majority held that a voir dire is not needed when an accused makes statements to an ordinary person. They pointed out the apparent contradiction between the defence’s position,
 …the theory that the accused would have sent the e-mail as a result of the inducement offered by the police officer some five weeks earlier when, as the trial judge found, the officer appeared to imply that the accused would not be charged if he apologized for the sexual improprieties… Indeed the theory that there is some connection between the inadmissible confession and the e‑mail runs counter to S.G.T.’s own evidence and defence at trial that the contents of the e-mail had nothing to do with the allegations of sexual assault.
The majority minimized any distinction between an admission and a confession in this context, stating that it fell into an exception to the hearsay rule. Citing R. v. Hodgson, the onus of the Crown to prove the voluntariness of the statement where the statement is made to a “person of authority.” As the mother had no connection or interaction with the police she could not be considered such an authority, despite her status as the parent of a minor involved in the case. In R. v. Wells a voire dire was required where a parent became a person of authority by telling the police that they intended to trick the accused into confessing [paras. 20-24].
The confession in Wells did not involve an e-mail, but rather a statement forced by a parent using violence to extract the confession. The court in that case emphasize the duty of a trial judge to ensure fair conduct in a criminal trial, which may result in directing a voir dire through their own directive in exceptional circumstances.
The court referred to the rule in Hodson that elaborated on these circumstances:
47 It should be emphasized that only rarely will a trial judge have heard sufficient evidence to trigger the need for a voir dire on the person in authority issue where the receiver of the statement is not a conventional person in authority. This follows because the evidence must establish more than the mere status of the receiver of the statement. Status or personal authority alone will not as a general rule provide evidence from which it can be inferred that the receiver of a confession is, in the eyes of the accused, a person in authority. Rather, in order to demonstrate the need for a voir dire, the evidence must show that the receiver of the statement was closely associated with the authorities prior to obtaining the statement, and that there was as well a close connection in time between the contact with the authorities and its receipt. The evidence must suggest that the receiver was acting in concert with the police or prosecutorial authorities, or as their agent, or as part of their team. Only in these circumstances will the trial judge be obliged to hold a voir dire of his or her own motion on the person in authority issue, subject to waiver of the voir dire by counsel for the accused.
The dissent by Fish, J. relied heavily on the “derived confessions rule,” described in R. v. I. (L.R.) and T. (E.),
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. …No general rule excluded subsequent statements on the ground that they were tainted irrespective of the degree of connection to the initial admissible statement. In this regard I adopt the language of Laskin C.J. in Hobbins, supra, at p. 558, when he states:
There can be no hard and fast rule that merely because a prior statement is ruled inadmissible a second statement taken by the same interrogating officers must be equally vulnerable. Factual considerations must govern, including similarity of circumstances and of police conduct and the lapse of time between the obtaining of the two statements.
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.
Although a statement may not by itself be inadmissible, its temporal or causal connection to an inadmissible statement taints the confession and makes it inadmissible [paras. 63-66].
Fish, J. emphasized the role of the first confession to the police excluded by voir dire in affirming the Court of Appeal’s reversal of the conviction,
 I agree with the Court of Appeal that the trial judge was legally bound to himself determine the admissibility of the respondent’s second “apology”. It was tendered by the Crown as an incriminating statement by the accused. And the trial judge then had in the record before him a clear indication that this second “apology” might be a “derived confession”, inadmissible on account of its close connection to the statement he had earlier excluded.
 The holding of a voir dire for this purpose was not subject to, or conditional upon, an objection by defence counsel: Its necessity was made apparent by the material already on the record when the Crown tendered the statement.
 I hasten to add that we are not concerned in this case with a mere matter of form. An informal voir dire will often suffice to determine whether a statement attributed to the accused ought to be admitted in evidence. Here, however, the trial judge made no inquiry at all.
The dissent also relied heavily on R. v. G. (B.), where the court stated,
50 The law on the question is clear. Despite s. 672.21(2) and (3), it had to be determined whether the protected statement was admissible in light of its degree of connection with the prior confession which was found to be inadmissible. This degree of connection can only be assessed during a voir dire, which was accordingly mandatory (see Erven, supra). By this I do not mean that there must be a voir dire on the voluntariness of the protected statement in every case; once again, this is a question that will have to be determined in another case. I am merely confirming that there must be a voir dire where, as here, the issue of whether the admission was derived from a prior inadmissible confession arises.
51 Whether the possibility of waiving the voir dire or consenting to the use of the protected statement is based on s. 672.21(2) or whether it has a more general foundation (see in this regard R. v. Dietrich (1970), 1 C.C.C. (2d) 49 (Ont. C.A.)), it is well established that “[s]ilence or mere lack of objection does not constitute a lawful waiver” (see Park v. The Queen,  2 S.C.R. 64, at p. 74). In the circumstances, the Crown cannot argue that the situation was otherwise. I therefore adopt the position of the Court of Appeal and find that there was no valid waiver or consent to the use of the protected statement in the case at bar.
Unlike R. v. G. (B.), the Crown in this case did not claim that the accused had waived the right to a voir dire [para. 76]. Furthermore, Fish, J. referred to of R. v. G. (B.) where the court indicated that the person of authority requirement was not needed where a prior statement had contaminated a confession, and such a statement should be inadmissible on its own by that basis [paras. 83-85],
22 …It is sufficient to retain from [R. v. I. (L.R.) and T. (E.)] that the derived confessions rule applies where there is a sufficient connection between the two statements. This follows from the rationale for the rule. The Quebec Court of Appeal cited Monette v. The Queen,  S.C.R. 400, in this regard, where the Court said of an inadmissible statement: “nothing more ought to be heard of it”. The second statement is inadmissible because the first confession contaminated it. Therefore, it is not necessary to decide whether the second statement is a confession made to a person in authority in the present case. This interpretation also meets the requirements of the Charter, which entrenched certain aspects of the confessions rule in s. 7. A confession found to be inadmissible could not be introduced indirectly without affecting the right to silence and the principle against self-incrimination, which is what we would be doing by admitting a statement that was “contaminated” by an inadmissible confession.
The majority responded by pointing out that R. v. G. (B.) did not resolve the issue of the position of authority, because the statement was excluded on other grounds. Charon, J. also points to the dissent in R. v. G. (B.) by McLachlin J. (as she then was), with L’Heureux-Dubé and Gonthier JJ. [para. 31],
60 …In my view, the connection between the statement to the psychiatrist and the earlier statement to the police does not meet the test established by this Court for inadmissibility by derivation.
61 A preliminary issue arises of whether statements derived from an involuntary confession may be excluded whether or not such statements are made to a person in authority. I can find no case where the common law doctrine of derivative exclusion has been applied to exclude a secondary statement not made to a person in authority. The common law doctrine of derivative exclusion is concerned with voluntariness, a concern which arises only in the case of confessions made to persons in authority.
McLachlin C.J. was notably one of the concurring justices with the majority position.
The court refused to determine whether derived confessions extend to admissions made to ordinary persons, but conceded the argument could be made to that effect with the appropriate facts connecting the police to the second e-mail statement. In addition to the common law exclusions, the possibility of a s. 24(2) exclusion could be raised, but defence counsel did not provide a Charter application. Trial judges should rarely second guess the tactical decisions of defence counsel, and there is a strong presumption that counsel are competent in advancing the interests of their clients. The fact that defence counsel did not object to the admission of the e-mail was fatal to the position of the accused, especially since the trial judge could not have reasonably foreseen the issue when the accused himself was advancing the proposition that the e-mail was unrelated to the charges and did not elaborate on any basis for inducement within his own mind [paras. 33-38].
The lesson for lawyers working with these types of statements provided over e-mails is to remember once again the perceived informal nature of such communications, which could lead to ambiguity about their meaning or unintended disclosures. A strategic decision must be made about the characterization of these communications, and if an alternative argument involving the common law “derived confessions rule” or s. 24(2) Charter exclusion should be expressly made. Most importantly, where a case could hinge on the credibility of the accused and can potentially be undermined by an e-mail statement, defence counsel should consider challenging the admission of the e-mail in a voir dire, even if the trial judge fails to take the initiative to do so.