[28] The leading case on the derived confessions rule is R. v. I. (L.R.) and T. (E.), [1993] 4 S.C.R. 504. In brief, the derived confessions rule serves to exclude statements which, despite not appearing to be involuntary when considered alone, are sufficiently connected to an earlier involuntary confession as to be rendered involuntary and hence inadmissible. For example, in that case, a young offender was charged with second degree murder and gave an inculpatory statement to the police. The next day, after meeting with his lawyer, the accused came to the police, wishing to modify the statement that he had given the previous day. The trial judge excluded the first statement but admitted the second, and the accused was convicted by a jury. The accused appealed the conviction on the basis that the second statement should not have been admitted. His appeal was ultimately successful in this Court.
[29] In outlining the principles applicable to derived confessions, the Court articulated a contextual and fact-based approach to determining whether a subsequent statement is sufficiently connected to a prior, inadmissible confession to also be excluded. In assessing the degree of connection, the Court outlined a number of factors to be considered, including "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" (p. 526). The Court then held that:
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. [p. 526]
The Court was clear in adding that "[n]o general rule excluded subsequent statements on the ground that they were tainted irrespective of the degree of connection to the initial admissible statement" (p. 526).
[30] It is plain from the above principles that the "derived confessions rule" emanates from the common law confessions rule. As such, like its parent, it is clear that it applies to secondary confessions, that is, statements made to a person in authority that are sufficiently connected to a previous involuntary confession to be deemed also involuntary.
James Morton
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