Confessions of a Dubious Mind: R. v. S.G.T.

Aptly described by Fish J. as the “third chapter in a tale of two statements,” the SCC’s recent decision in R. v. S.G.T., 2010 SCC 20, provides clarity on the confessions and derived confessions rules. The plot of the “tale” involved  a stepfather, S.G.T., accused of allegedly sexually assaulting his teenage stepdaughter A. S.G.T. was brought in for questioning by the police after they were alerted of the abuse by A’s school counsellor. The police improperly induced S.G.T. to confess to sexually assaulting his stepdaughter by urging him to apologize, deemphasizing the possibility for criminal liability, and suggesting that no charges would be laid. In an attempt to get S.G.T. to apologize, one officer went so far as to make up a story about how he once avoided charges for slapping his son by apologizing to the police. The officer also told S.G.T.  that he would support him throughout the matter.

At the Court of Queen’s Bench for Saskatchewan, Scheibel J. conducted a voir dire regarding the apology that S.G.T. had given during his interrogation. A voir dire is a hearing on the admissibility of evidence to a trial. Since Scheibel J. found that the apology had been improperly induced by the officer, it was excluded from evidence. As a result, the Crown was forced to rely upon a second confession made by S.G.T. to support its case. The second confession was given approximately five weeks after S.G.T.’s initial confession to the police, shortly after he was charged with sexual assault. He sent an email to his former wife agreeing to let her take their children, including A, to the United States to visit her parents. In that same email, S.G.T. apologized for his behaviour, but did not specifically state what particular behaviour the apology was directed towards. The admission of this second confession was the focal point of the issues that the SCC had to determine.

Subsequent to A’s mother providing evidence on the email, Scheibel J. asked defence counsel whether he objected to the admission of the email into evidence. Since defence counsel responded that he did not object, Scheibel J. did not conduct a voir dire. Due to the great weight placed by Scheibel J. on the email, S.G.T. was found guilty of sexual assault. He earned the moniker “dubious mind” due to the several inconsistencies that came to light in his appeal. First, he claimed that he  lied when he testified that the email was about giving A and her friends alcoholic coolers. Second, he explained that his lawyer suggested he present his testimony in that manner. His former counsel responded by filing an affidavit denying the truth of that claim.

Ultimately, the  Court of Appeal allowed S.G.T.’s appeal on the sole ground that Scheibel J. had erred by failing to conduct a voir dire concerning the admissibility of the email, regardless of the fact that defence counsel had consented to the admission of the email. In addition to considering that issue, the SCC had to determine whether the email was inadmissible under the confessions or derived confessions rules. As well, it had to determine whether S.G.T.’s former wife was a “person in authority” under the confessions rule.

According to confessions rule, in order for statements to be admissible confessions, the Crown has the burden to prove beyond a reasonable doubt the voluntariness of statements made by an accused to a person in authority. It is the defendant’s burden to raise evidence that the recipient of the statement is a person in authority. Proving this burden is key, as statements made by an accused to ordinary persons are presumptively admissible without the need for a voir dire to be conducted.

Strike One: A Person in Authority is not Your Spouse, Even if he or she is Bossy

S.G.T. was unsuccessful in arguing that his former wife was a person in authority. Although it is possible for a spouse to be considered a person in authority, the circumstances require that the accused believe (i) that his or her spouse can control or influence the proceedings against him or her, and (ii) that belief must be reasonable. There was no evidence that S.G.T. believed that his former wife could influence or control the proceedings. Charron J., writing for the majority, held that S.G.T.’s former wife was not a person in authority.  In turn, the email was presumptively admissible.

Strike Two: A Voir Dire was Not Required

Charron J. held that the trial judge must conduct a voir dire where the evidence makes it clear that one is required, even when one is not requested. However, if the defence waives the requirement and consents to the admission of the statement, as S.G.T.’s defence did, then a voir dire is not required. For further clarity, she stated that it is the defendant’s burden to request a voir dire when the recipient of the statement is not a typical person in authority. S.G.T. did not raise that concern at any point during the trial. Correspondingly, Scheibel J. was correct when he did not hold a voir dire on the question of whether A’s mother was a person in authority. The majority’s approach seems reasonable because judges play a passive role in the adversarial system of litigation. Lawyers are expected to be in control of their legal strategy. A judge cannot ignore the parties’ wishes, otherwise he or she would be open to the criticism that they are partial to one particular party.

Strike Three: The Derived Confessions Rule Backfires for S.G.T.

S.G.T. argued that his second confession was inadmissible due to the operation of the derived confessions  rule. In R. v. I (L.R.) and T. (E.), [1993] 4 SCR 504, the SCC held that the rule excludes “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.” He argued that the false inducement that influenced him to make the first confession was still operational in his mind when he made the second confession. In other words, the second confession should be excluded because he still thought that he would not be charged if he made the apology in the email. A number of factors are to be considered in assessing the degree of the connection, 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 in both circumstances. Based on these factors, the SCC held that it was clear that the initial inducement to apologize was no longer operative in S.G.T.’s mind. Five weeks passed between the first and second confessions. As well, S.G.T. had been charged with sexual assault, even though the police had led him to initially believe he would not be charged.

The hotly contested issue between the majority and minority was whether the element of a person in authority is required to make a derived confession inadmissible. In his dissenting decision, Fish J. argued that derived confessions need not be made to a person in authority for it to be inadmissible. He relied upon the SCC’s decision in R. v. G. (B.), [1999] 2 S.C.R. 475, (G. (B.)), where a second confession to a psychiatrist was inadmissible regardless of whether the psychiatrist was a person in authority. The majority distinguished that decision on the basis that the second confession was excluded because its inclusion would have the effect of  indirectly including the excluded first statement. Based on this line of reasoning, Fish J. argued that a derived confession need not be made to a person in authority in order for it to be inadmissible.

The majority persuasively reconciles this contention by pointing to the difference between confessions and admissions. As mentioned above, a confession must satisfy the threshold that the accused voluntarily make a statement to a person in authority in order for it to be admitted. In contrast, admissions to ordinary people are presumptively admitted. Although it seems logical to exclude a second confession that was tainted by the first confession, even when the second confession was made to an ordinary person, this argument is nonetheless flawed. Fish J.’s interpretation of the rule  would exclude admissions. Although the majority’s distinction of G. (B.) is a little tough to swallow, it is consistent with the necessary difference between admissions and confessions. Without the threshold requirement of a person in authority as a recipient of the statement, the distinguishing feature of the admissibility of confessions would fall away.