Supreme Court of Canada Excludes Evidence In Child Molesting Case

Today's Supreme Court of Canada decision in R v Wittwer 2008 SCC 33 deals with the curious situation where an otherwise properly obtained and admissible statement by an accused is prompted by confronting the accused with an earlier statement obtained in violation of the accused's right to counsel. In such a case does the earlier statement taint the later?



Yes.



Writing for the Court, Justice Fish said that the police "knowingly and deliberately" used information that had been illegally obtained in order to obtain an incriminating admission.



"This alone is sufficient to taint the subsequent statement and to cry out for its exclusion ...," Justice Fish said. "To hold otherwise is to invite the perception that the police are legally entitled to reap the benefit of their own infringements of a suspect's constitutional rights. And this, in my view, would bring the administration of justice into disrepute."



The key question was whether the two statements were sufficiently independent of one another that the accused's final admission could be admissible against him.



"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," Justice Fish explained. Here, as the second statement was a result of the use of the first statement, the second statement was tainted.