Nothing New in R. v. Wittwer (except for Mr. Wittwer).
The Supreme Court in R. v. Wittwer 2008 SCC 33, dealt with the issue of evidence admissibility and interrogation limits. This area in criminal procedure is very complicated and all the parties involved, including, the accused, the police and the judge need much clarification of the law. Last week, the Supreme Court decided whether to exclude an incriminating statement made by the appellant to the police upon being confronted with a prior statement that was obtained from him in violation of his constitutional rights. The decision was to exclude the evidence pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms and to set up a new trial.
The appellant, Mr. Dieter Helmut Wittwer, stands convicted of three counts of sexual interference, contrary to section 151 of the Criminal Code, R.S.C. 1985, c. C-46. Mr. Wittwer gave three statements to the police and he was appealing the admissibility of his third statement to the Supreme Court. The two prior statements were both obtained in a manner that infringed the Charter and were not in dispute. The first impugned statement was in violation of Mr. Wittwer’s right to be informed of his right to counsel. The second was unconstitutional as a result of the interrogating officer hindering the exercise of the right to counsel by not making an effort to enable Mr. Wittwer to contact his lawyer.
The third statement was made after four hours of questioning, which only led to fruition after the interrogating officer, Sergeant Cary Skrine, told Mr. Wittwer that he knew the content of the previous interviews. Sergeant Skrine knew that the prior statements were obtained in an unconstitutional manner and knew that using them would jeopardize the admission he was pursuing. He nevertheless “felt that the only way to get the appellant to incriminate himself was to acknowledge that he knew about the sexual encounter described by the appellant in the first two interviews” .
The trial judge determined that the causal connection between the statements was weak and that the third statement was not tainted by the Charter breaches of the prior two (R. v. Wittwer (2005) B.C.J. No. 1799). As such, the evidence was admitted and Mr. Wittwer was convicted on all three counts of sexual interference. The British Columbia Court of Appeal agreed with the trial judge and upheld the conviction (R. v. Wittwer (2007), 219 C.C.C. (3d) 449) .
The question that came before the Supreme Court was “whether the appellant’s third statement was tainted by the Charter breaches that marred the appellant’s earlier statements relating to the same charges” . The Supreme Court found that it was tainted by the previous Charter breaches and admitting it as evidence would bring the administration of justice into disrepute. Justice Fish who delivered the judgment summarized the rules relating to the question as follows:
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,  2 S.C.R. 463, at para. 40; Plaha, at para. 45 .
Through applying those principles, the Supreme Court concluded that the required connection between the statements was “direct and obvious” . In fact, the Supreme Court found a temporal, causal and contextual connection. The connection was temporal in the sense that Mr. Wittwer gave his statement to Sergeant Skrine immediately after Sergeant Skrine informed him that he knew of the content of the prior interviews. The causal connection is evident in that the statement to Sergeant Skrine was elicited because of the reference to the first statement. Finally, the connection was contextual because Sergeant Skrine “intentionally and explicitly” bridged the gap between the statements. In this light, the Supreme Court concluded that the facts of this case fulfill the connection required under Goldhart and Plaha .
In this ruling, the Supreme Court applied the principles from R. v. Strachan,  2 S.C.R. 980, Goldhart, Plaha and R. v. I. (L.R.) and T. (E.),  4 S.C.R. 504, to the facts of the case. The judges had no new instruction or law for the limits of interrogation powers. The decision serves to only flag a warning that the police will not be “legally entitled to reap the benefit of their own infringements of a suspect’s constitutional rights” . There is nothing new in that. What remains unclear is how the courts can apply this decision. How the police can make use of R. v. Wittwer is even less obvious. The dilemma they face is how, in a new interview, can they nail down an accused person, who previously admitted to a criminal act in an interview that breached his/her constitutional rights? Sergeant Skrine waited four hours before making use of the prior unconstitutional statements. One may venture to say that he tried his luck by risking using the prior interviews in the one he was conducting. However, through the persistence and ability of Mr. Wittwer, he made it all the way to the Supreme Court to see this matter through (and get what can be described as merely a different reading). Yet, should others have to keep litigating and appealing to get a reading of their facts that is favorable to them? Should we not expect of the courts to provide sufficient and consistent interpretations of the law?