minicounsel

R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 SCR 475

Her Majesty The Queen Appellant

B.G. Respondent

Indexed as: R. v. G. (B.)

File No.: 26226.

1999: January 29; 1999: June 10.

Present: Lamer C.J. and L’Heureux‑Dubé, Gonthier, Cory, McLachlin, Iacobucci, Major, Bastarache and Binnie JJ.

on appeal from the court of appeal for quebec

Criminal law ‑‑ Evidence ‑‑ Mental disorder ‑‑ Protected statements ‑‑ Admissibility ‑‑ Accused charged with various sexual offences ‑‑ Accused’s mental condition assessed by psychiatrist ‑‑ Accused’s testimony at trial inconsistent with protected statement made to psychiatrist ‑‑ Criminal Code providing that protected statement admissible in such a case for purpose of challenging accused’s credibility ‑‑ Protected statement tied to out‑of‑court statement made to police and ruled inadmissible at outset of trial ‑‑ Whether protected statement also inadmissible ‑‑ If so, whether it may be used to challenge accused’s credibility ‑‑ Interpretation of s. 672.21(3)(f) of Criminal Code, R.S.C., 1985, c. C‑46.

The accused went to a police station and, after he was cautioned and his constitutional rights were read, made a statement to the police in which he admitted to engaging in various acts of a sexual nature with his young cousin. The accused was subsequently charged, and a court ordered an assessment of his mental condition under s. 672.11(a) and (b) of the Criminal Code. During this assessment, the accused made an incriminating admission (the “protected statement”) to the psychiatrist when the latter asked him to explain the out‑of‑court statement he had made to the police. The defence requested a second assessment. Both psychiatrists’ reports noted the accused’s limited mental capacity, but nevertheless concluded that he was fit to stand trial. The reports also indicated that the accused was very accommodating toward those in authority and that his answers were unreliable in an anxiety‑producing situation. At trial, following the victim’s testimony, the Crown sought to introduce the accused’s out‑of‑court statement. Based on the psychiatric assessments, the trial judge ruled it inadmissible. The accused later testified and denied any sexual activity with the victim. The Crown then cross‑examined him on his “protected statement” under s. 672.21(3)(f) of the Code. Section 672.21(3) lists a few exceptions to the general principle that protected statements are inadmissible in evidence, in particular para. (f), which provides that such a statement is admissible for the purpose of challenging the credibility of the accused where his or her testimony is inconsistent with the protected statement. In the opinion of the trial judge, the debate turned entirely on the credibility of the witnesses. Citing the accused’s lack of credibility, and preferring the victim’s version of the facts, he found the accused guilty. The Court of Appeal allowed the accused’s appeal and ordered a new trial. The court stated that the trial judge had erred in using the protected statement against the accused to challenge his credibility.

Held (L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting): The appeal should be dismissed.

Per Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ.: The accused’s admission to the psychiatrist is a protected statement within the meaning of s. 672.21 of the Code. Assuming the first confession to the police is inadmissible, the second statement will also be inadmissible if the degree of connection between the two statements is sufficient for the second to have been contaminated by the first. This interpretation meets the requirements of s. 7 of the Canadian Charter of Rights and Freedoms, which entrenched certain aspects of the confessions rule. A confession found to be inadmissible could not be introduced indirectly without affecting the right to silence and the principle against self-incrimination. Moreover, as the second statement is inadmissible because the first confession contaminated it, it is unnecessary to decide whether the second statement is a confession to a person in authority. In this case, the second statement is inadmissible because of its degree of connection with the prior inadmissible confession. The admission to the psychiatrist resulted directly from the confrontation of the accused with his previous statement. No additional information was obtained. Since the second statement exists only because of the first, it is unnecessary to consider here whether the tainting factors continued to exist, although in this case they were still present to some extent.

Although it is possible, in certain circumstances, to distinguish between the use of evidence to challenge the credibility of an accused and its use on the merits, that is not the case with the confessions rule. That rule provides that an involuntary confession may not be used for any purpose. The confessions rule excludes the protected statement because it is derived from the prior inadmissible confession.

Section 672.21 of the Code is not inconsistent with the application of the confessions rule. In enacting the section, Parliament sought a balance between the need to learn the truth and the protection of accused persons ordered to undergo an assessment of their mental capacity. This balance would be difficult to achieve if the rules of evidence which provide for the exclusion of otherwise inadmissible evidence were set aside. If the exception in s. 672.21(3)(f) does allow previously excluded evidence to be reintroduced indirectly, accused persons will refuse to answer some of their psychiatrist’s questions for fear this evidence may be reintroduced at trial. Even more importantly, we must prefer an interpretation of s. 672.21(3)(f) that does not make the provision of no force or effect, if that interpretation is at all plausible. Now that the confessions rule, which does not allow for any use of an involuntary statement, has been given constitutional expression, using evidence contrary to this rule would infringe s. 7 of the Charter. Finally, nothing in the wording of s. 672.21(3)(f) indicates that Parliament wanted to abolish the confessions rule; the interpretation that is contrary to the Charter must therefore be rejected.

In the circumstances of this case, the fact that the defence accepted the introduction in evidence of the psychiatrist’s report containing the protected statement and did not object to the use of this evidence by the Crown during cross‑examination of the accused was not a valid waiver or consent to the use of the protected statement.

Per L’Heureux‑Dubé, Gonthier and McLachlin JJ. (dissenting): The statement the accused made to the psychiatrist is a “protected statement”. Section 672.21(3)(f) of the Criminal Code permits the use of protected statements to challenge the credibility of the accused where he takes the stand and gives a different statement in evidence. Here, the accused gave a different version of events at trial from that which he had provided to the psychiatrist. In keeping with the limited exception carved out by s. 672.21(3)(f), the trial judge used the accused’s statement to the psychiatrist only on the issue of credibility.

The accused’s contention that his statement to the psychiatrist was inadmissible and outside the reach of s. 672.21(3)(f) must be rejected. First, that statement was not an involuntary confession. Even if the psychiatrist could be considered a person in authority, there is no suggestion that the statement to the psychiatrist was not voluntary. The accused was not deprived of his right to choose whether to confess or not. In addition, the statement was not inadmissible because of its links to the earlier police confession which the trial judge ruled inadmissible. The connection between the accused’s statement to the psychiatrist and the earlier statement to the police does not meet either branch of the test for inadmissibility by derivation set out in I. (L.R.) and T. (E.). The tainting features which disqualified the first confession were no longer present, and the first statement did not effectively deprive the accused of the choice of whether to make the subsequent statement. The substantial connection between the two statements required by the law to establish involuntariness is therefore not present in this case. To assert that every statement similar to or derived from an inadmissible confession thereby becomes inadmissible is to undermine the rationale of choice that lies at the heart of the confessions rule and the doctrine of derivative exclusion. Connectedness or similarity between a prior inconsistent statement and a subsequent statement renders the subsequent statement inadmissible only if it rises to the level of showing that the connection may have rendered the second statement involuntary.

Second, even if the accused had established that the statement to the psychiatrist was inadmissible, the statement could be used to challenge the accused’s credibility pursuant to s. 672.21(3)(f) of the Criminal Code. The limited use exception set out in that section is properly interpreted as applying to all “protected statements”, including inadmissible confessions. The wording of s. 672.21(3)(f) is clear and conforms to Parliament’s intentions. In enacting s. 672.21, Parliament wished not only to facilitate court‑ordered assessments of accused persons by providing them with a guarantee of confidentiality, but also to uphold and protect the search for truth. Section 672.21(3)(f) effects a compromise between these two purposes. While the common law confessions rule does not permit inadmissible confessions or statements derived therefrom to be used to impeach an accused’s credibility, Parliament has the power to alter the common law. Given the lack of ambiguity in s. 672.21(3)(f) and the absence of a constitutional challenge, this section cannot be read down on constitutional grounds.

Even if the constitutionality of s. 672.21(3)(f) were considered, there is every indication that it would pass constitutional muster. A statement obtained in breach of a constitutional right, specifically the right not to incriminate oneself, does not automatically render any subsequent use of the statement unconstitutional. The consequences of a breach of that right fall to be decided under s. 24 of the Charter by assessing whether the use of the statement will bring the administration of justice into disrepute. If situations arise where such use requires exclusion under s. 24(2) they may be addressed on the facts of the case at issue. This does not support the conclusion that Parliament is generally prohibited from permitting the use of protected statements, including inadmissible confessions, to challenge the accused’s credibility.

Cases Cited

By Bastarache J.

Applied: R. v. I. (L.R.) and T. (E.), 1993 51 (SCC), [1993] 4 S.C.R. 504; referred to: Erven v. The Queen, 1978 19 (SCC), [1979] 1 S.C.R. 926; Hebert v. The Queen, 1954 48 (SCC), [1955] S.C.R. 120; R. v. Mannion, 1986 31 (SCC), [1986] 2 S.C.R. 272; R. v. Kuldip, 1990 64 (SCC), [1990] 3 S.C.R. 618; M‘Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718; R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933; R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914; Monette v. The Queen, 1956 68 (SCC), [1956] S.C.R. 400; R. v. Calder, 1996 232 (SCC), [1996] 1 S.C.R. 660; R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740; R. v. Pelletier (1986), 1986 1179 (BC CA), 29 C.C.C. (3d) 533; Thompson v. Goold & Co., [1910] A.C. 409; R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295; Motel Pierre Inc. v. Cité de Saint-Laurent, [1967] Que. Q.B. 239; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; R. v. Cook, 1998 802 (SCC), [1998] 2 S.C.R. 597; R. v. Dietrich (1970), 1970 377 (ON CA), 1 C.C.C. (2d) 49; Park v. The Queen, 1981 56 (SCC), [1981] 2 S.C.R. 64.

By McLachlin J. (dissenting)

R. v. I. (L.R.) and T. (E.), 1993 51 (SCC), [1993] 4 S.C.R. 504; R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151; Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27; Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038; R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731; R. v. Kuldip, 1990 64 (SCC), [1990] 3 S.C.R. 618; R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914; R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417.

Statutes and Regulations Cited

Canadian Charter of Rights and Freedoms, ss. 1, 7, 11(c), 13, 24(2).

Criminal Code, R.S.C., 1985, c. C‑46 [am. 1991, c. 43, s. 4], ss. 672.11(a), (b), 672.21, 672.21(3)(f), 686(1)(b)(iii) [idem, s. 9 (Sch., item 8)].

Authors Cited

Canada. Canadian Committee on Corrections. Report. Toward Unity: Criminal Justice and Corrections. Ottawa: Queen’s Printer, 1969.

Canada. Department of Justice. Report of a Committee Appointed to Inquire Into the Principles and Procedures Followed in the Remission Service of the Department of Justice of Canada. Ottawa: Queen’s Printer, 1956.

Canada. House of Commons Debates, vol. III, 3rd Sess., 34th Parl., October 4, 1991, p. 3296.

Canada. Law Reform Commission. Mental Disorder in the Criminal Process. Ottawa: The Commission, 1976.

Canada. Royal Commission to investigate the Penal System of Canada. Report of the Royal Commission to investigate the Penal System of Canada. Ottawa: King’s Printer, 1938.

Côté, Pierre‑André. The Interpretation of Legislation in Canada, 2nd ed. Cowansville: Yvon Blais, 1991.

Driedger on the Construction of Statutes, 3rd ed. by Ruth Sullivan. Toronto: Butterworths, 1994.

APPEAL from a judgment of the Quebec Court of Appeal (1997), 1997 10742 (QC CA), 10 C.R. (5th) 235, 119 C.C.C. (3d) 276, [1997] Q.J. No. 2267 (QL), allowing the accused’s appeal from his conviction and ordering a new trial. Appeal dismissed, L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.

Maurice Galarneau and Caroline Vallières, for the appellant.

Robert Malo, for the respondent.

English version of the judgment of Lamer C.J. and Cory, Iacobucci, Major, Bastarache and Binnie JJ. delivered by

//Bastarache J.//

Bastarache J. ‑‑

I. Introduction

1The interpretation of a statutory provision is often problematic when the extent to which it must be consistent with traditional common law rules and the constitutional values of the Canadian Charter of Rights and Freedoms is to be determined. That is what must be done in the case at bar with respect to s. 672.21(3)(f) of the Criminal Code, R.S.C., 1985, c. C‑46, which deals with the circumstances in which a “protected statement” made by an accused to a psychiatrist who is assessing his or her fitness to stand trial is admissible.

II. Facts

2The respondent B.G. is charged with engaging in various acts of a sexual nature with his young cousin D.C. over a seven‑year period. The alleged incidents began in 1983 when the respondent was nineteen and the victim five years old.

3On March 18, 1993, at the request of the police, the respondent went to a Sûreté du Québec police station, accompanied by his older brother. After he was cautioned and his constitutional rights were read, the respondent made an inculpatory statement which was taken down in writing by the police, in which he admitted and explained in detail the alleged sexual assaults. The respondent was subsequently charged with a summary conviction offence.

4In February 1994, during the pro forma hearing, the court, with the consent of the parties, directed psychiatrist John Wolwertz to assess the respondent’s fitness to stand trial and his capacity for criminal responsibility under s. 672.11(a) and (b) of the Criminal Code. During this assessment, the respondent made an incriminating admission (hereafter the “protected statement”) to Dr. Wolwertz when the latter asked him to explain the out‑of‑court statement he had made to the police the year before.

5The defence requested a second assessment, to be made by psychiatrist Paul‑André Lafleur. After noting the respondent’s limited mental capacity, lack of education and state of dependence, Dr. Lafleur and Dr. Wolwertz nevertheless concluded in their respective reports that he was fit to stand trial and should be considered to be of sound mind at the time of commission of the alleged acts. The reports also emphasized that the respondent was very accommodating toward those in authority and that his answers were unreliable in an anxiety‑producing situation.

6At trial, following the victim’s testimony, the Crown sought to introduce the respondent’s out‑of‑court statement. After a voir dire, Judge Lamoureux, sitting without a jury, ruled the statement inadmissible based on the psychiatric assessments which called into question the accused’s ability to understand the consequences of his statement and its possible use in court, and on the unreliability of the accused’s answers in an anxiety‑producing situation.

7The respondent later testified for the defence and denied any sexual activity with the victim. The Crown then cross‑examined him on his “protected statement” under s. 672.21(3)(f) of the Criminal Code, in view of its inconsistency with his testimony. The defence did not object to these questions. Finally, before closing the case, counsel for both parties agreed to file the testimony given by the two psychiatrists during the voir dire, as well as their respective reports.

III. Relevant Statutory Provisions

8 Section 672.21 of the Criminal Code provides as follows:

672.21 (1) In this section, “protected statement” means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person’s direction.

(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence.

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

(a) determining whether the accused is unfit to stand trial;

(b) making a disposition or placement decision respecting the accused;

(d) determining whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly‑born child;

(e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;

(f) challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously; or

(g) establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding.

IV. Judicial History

A. Court of Québec (February 14, 1996)

9 Faced with contradictory versions of the facts, Judge Lamoureux stated that the debate turned entirely on the credibility of the witnesses. It was because of the accused’s lack of credibility, due inter alia to his admission of guilt to Dr. Wolwertz and subsequent denial before the court, that Judge Lamoureux found the accused guilty, preferring the victim’s version of the facts, which was the Crown’s only evidence. He stated the following in this regard:

[translation] The accused gave, invented two (2) scenarios for the crime with which he was charged. What credibility must I give to the testimony of the accused, who admitted to Dr. Wolwertz that he sexually assaulted the victim and who, under oath, before the Court, denied this statement? That the accused says to the Court that he was intimidated, I cannot accept this defence which was the only one put forward by the accused, his state of mind. I understand that the accused may have certain problems, but not to the point of not . . . in any event, he proved during his meeting with Dr. Wolwertz that he could understand the questions put to him reasonably well. I therefore accept what he said to Dr. Wolwertz.

The second part, the grounds which led me to a decision, is that I was not particularly impressed by the accused’s testimony. I understand that the accused has certain problems, they are discussed in the reports by Dr. Wolwertz and Dr. Paul‑André Lafleur, but neither of them can satisfy me that the accused did not know or could not understand the admissions he made. It is a question of credibility, and if, for the purposes of the authorities, I refer, as I must, to the Supreme Court’s directions in W.B.C. on credibility with regard to the accused’s behaviour during the trial, I cannot accept his testimony or his denial of the actions, the sexual assaults he committed.

B. Quebec Court of Appeal (1997), 1997 10742 (QC CA), 10 C.R. (5th) 235

10 Proulx J.A., for the court, first examined the legislative provisions concerning the use of a protected statement, namely s. 672.21 of the Criminal Code. He noted that the admissibility of an out‑of‑court statement of this type depends on the purpose for which it was introduced. He added that subs. (3)(f), which applies in the case at bar, was a codification of the principles set out by the Supreme Court in R. v. Mannion, 1986 31 (SCC), [1986] 2 S.C.R. 272, and R. v. Kuldip, 1990 64 (SCC), [1990] 3 S.C.R. 618.

11 After noting that the respondent’s admission to Dr. Wolwertz was indeed a “protected statement” within the meaning of s. 672.21 of the Criminal Code, Proulx J.A. stated that this admission could normally be put to the respondent in cross‑examination to challenge his credibility, but that the source of the problem in the instant case was that the statement itself was obtained illegally. At p. 242 he states:

[translation] To read s. 672.21(3)(f) so as to authorize the use of any “protected statement” of an accused, without regard to the means used to obtain it, would contravene the most basic principles of fundamental justice which are entrenched in the Canadian Charter of Rights and Freedoms and which also govern the exercise of the Court’s discretionary power to exclude evidence where the prejudice which would result from its admission would outweigh its probative value.

In the case before us, the evidence of the admission was obtained by Dr. Wolwertz by confronting the appellant [the respondent in this appeal] with his statement to the police which was later held inadmissible by the trial judge because it was not given freely and voluntarily. It seems difficult to imagine a clearer case for the application of the rule that “involuntary statements may not be used”, as the Supreme Court recently reiterated in R. v. Calder, 1996 232 (SCC), [1996] 1 S.C.R. 660, p. 674. Furthermore, in that case, the Court adopted what had been stated in . . . Monette [v. The Queen, 1956 68 (SCC), [1956] S.C.R. 400], that is, that “nothing more ought to be heard of it” once a statement by the accused has been held inadmissible. Consequently, the admission obtained by Dr. Wolwertz was also inadmissible and the trial judge erred in using it against the [respondent].

12 The Court of Appeal was of the view that in his evaluation of the protected statement, Judge Lamoureux should have considered the same grounds which justified the exclusion of the first statement to the police, namely the lack of reliability of the respondent’s answers in an unusual and anxiety‑producing situation.

13 The issue of consent by the defence to the use of the admission, which was raised by the Crown, was also examined by the Court of Appeal, which dealt with it as follows at p. 243:

[translation] . . . I find it difficult to believe that after successfully challenging the admissibility of the admissions made by [the respondent] to the police, counsel for the [respondent] nevertheless wanted these admissions used against his client, through Dr. Wolwertz’s report: the consent to the production of the report therefore cannot have this result.

V. Issues

14 On February 12, 1998, this Court granted the appellant leave to appeal the judgment of the Quebec Court of Appeal on the following issue:

[translation] Did the Court of Appeal err in law in unanimously deciding that the trial judge had erred in law in interpreting s. 672.21(3)(f) of the Criminal Code as allowing him to use the respondent’s “protected statement” against him?

The appellant has also formulated the following issue:

[translation] May a “protected statement” be used for the purposes prescribed by the Act if it was obtained through the use of evidence, in this case an out‑of‑court statement, which was subsequently found to be inadmissible?

VI. Analysis

15 Part XX.1 of the Criminal Code is the result of a consolidation of all of the criminal law principles concerning persons with mental disorders. This consolidation occurred in February 1992, following much consultation and lengthy reflection on this issue which took into account the principles established by the House of Lords, in the nineteenth century, in M‘Naghten’s Case (1843), 10 Cl. & Fin. 200, 8 E.R. 718, and the recommendations of the Archambault Commission in 1938, the Fauteux Committee in 1956, the Ouimet Committee in 1969, and the Law Reform Commission of Canada in 1976. The key to these amendments, however, was this Court’s decision in R. v. Swain, 1991 104 (SCC), [1991] 1 S.C.R. 933.

16 Section 672.21 of the Code deals specifically with protected statements made by an accused during the assessment of his or her mental capacity and sets out the general principle that they are inadmissible in evidence at trial. Subsection (3) recognizes several exceptions to this principle, however, in particular in para. (f), which provides for admissibility to challenge the credibility of the accused where his or her testimony is inconsistent with the protected statement.

A. The Nature of the “Protected Statement”

17 In order to determine whether s. 672.21(3)(f) permitted the use at trial of the admission made by the accused to Dr. Wolwertz in the case at bar, we must first examine the contents of the statement. In view of its importance, I shall reproduce in full the passage from the psychiatrist’s report that gave rise to the controversy:

[translation] When he was confronted with the statement made to the police, he said to us: “Since I didn’t know what to say, I told a story and since it was the first time I had dealings with the police, I was a bit uncomfortable since it is because of my aunt . . .”. When he was asked why [D.C.] or his aunt . . . would have spoken to the police, he gave me the following answer: “I don’t know why they are doing that, it may be that my aunt is angry with me because I let them down even though I was always with them, I helped them, I always looked after [D.]!” and added: “I don’t know why they are doing that when we were always good friends . . . I said what I did because I was uncomfortable, I was afraid!”. He later added: “Someone who hadn’t done that would find it hard to talk about it in detail and I said it like it was!”. He is also aware that what he is alleged to have done is wrong because he said: “I know that assaulting a child, that it’s not done and that it can have serious consequences. If I am found guilty, I can be sent to prison . . . but I regret having said that!”. When I went over the details of his statement with him and pointed out that it explains fairly well what happened between him and [D.C.], he replied: “Yes, I know”, and hastened to add “maybe the police misunderstood!”.

However, it was especially when I compared his statement with that of [D.C.] and showed him that there were remarks or phrases which were similar that he expressed astonishment, immediately searching for a way out, and said: “I made up a story.... It’s as if [C.] had copied my story.” But finally, when faced with the evidence that [D.C.]’s statement was made before his, he was confounded and caught off guard, he said to me: “Now that doesn’t make sense. I’ve just learned something. The story I made up, it’s the same.” He then became very tense, worried: “I was nervous when I spoke to the police and I didn’t know what to say.” Then I asked him the following question: “Were you so nervous with the police that you told the truth?”. That was when he agreed, answering in the affirmative.

18 There is no doubt, and no one disputes, that the admission made to the psychiatrist is indeed a protected statement within the meaning of s. 672.21 of the Code. The respondent submits, however, that it is a statement derived from a prior inadmissible statement, which would make it inadmissible.

19 With respect to that first statement, it is not clear, from reading Judge Lamoureux’s reasons, whether he found that the accused was unable to understand the police officers’ caution, in which case the statement was indeed inadmissible, or whether he was of the view that the accused was able to understand the meaning of the statement, but unable to grasp the full seriousness of its consequences. If the trial judge arrived at the latter conclusion, then there is every reason to believe that the first confession should have been admitted, and its weight left to be assessed by him as trier of the facts. That can be seen from R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, at pp. 941 and 947, concerning the “operating mind” test for confessions:

The operating mind test, which is an aspect of the confessions rule, includes a limited mental component which requires that the accused have sufficient cognitive capacity to understand what he or she is saying and what is said. This includes the ability to understand a caution that the evidence can be used against the accused.

In exercising the right . . . the accused must possess the limited cognitive capacity that is required for fitness to stand trial. . . .

The decision by the trial judge to exclude the statements was on an erroneous view that the evidence which he accepted did not satisfy a separate awareness of the consequences test. [Emphasis added.]

20 As that issue is not before the Court, and the Court is not in a position to decide it, I must proceed with my analysis on the basis that the first confession was in fact inadmissible. The question is important, however, and the trial judge will have to re‑examine it should there be a new trial.

21 The leading case on the question of the common law “derived confessions rule” is R. v. I. (L.R.) and T. (E.), 1993 51 (SCC), [1993] 4 S.C.R. 504, in which this Court, inter alia, set out the test for evaluating the degree of connection between the statements, in order to determine when the second statement must be excluded. According to that decision, the second statement must be excluded when it arose out of the first or when they are one and the same. Speaking for the Court, Sopinka J. summarized the state of the authorities on the issue, at p. 526:

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. See Boudreau v. The King, 1949 26 (SCC), [1949] S.C.R. 262; Horvath v. The Queen, 1979 16 (SCC), [1979] 2 S.C.R. 376; and Hobbins v. The Queen, 1982 46 (SCC), [1982] 1 S.C.R. 553. 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. [Emphasis added.]

Sopinka J. then concluded his discussion of the derived confessions rule by stating:

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.

22 In my view, it is not necessary here to analyse I. (L.R.) and T. (E.), where Sopinka J. was dealing with a situation in which two confessions are made to persons in authority. It is sufficient to retain from it 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, 1956 68 (SCC), [1956] 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.

23 Sopinka J. states clearly that the continued presence of the tainting features or the substantial contribution of the first statement to the making of the second may establish that the second statement was derived from the first. While that is true in the clearest cases, it will generally be easier to establish this when both conditions are present to some extent. Ultimately, what matters is that the court is satisfied that the degree of connection between the two statements is sufficient for the second to have been contaminated by the first.

24 In the case at bar, the admission made to Dr. Wolwertz resulted directly from the confrontation of the accused with his previous statement. No additional information which was not already included in the inadmissible prior statement was obtained during the meeting; the second admission is merely an assertion of the truth of the first statement. It is interesting to note in this regard that at common law, an admission by an accused during a voir dire confirming the truth of a prior confession is inadmissible at trial: Erven v. The Queen, 1978 19 (SCC), [1979] 1 S.C.R. 926. As the respondent states, Dr. Wolwertz in fact cross‑examined the accused on his first statement.

25 Given that the second statement in the case at bar exists only because of the first, it is unnecessary to consider here whether the factors for exclusion continued to exist, although it might be helpful to make a brief comment in this regard. Subject to the doubts expressed in paras. 19 and 20, the confession made to the police was declared inadmissible by Judge Lamoureux apparently for two reasons: the first was the doubt as to the accused’s ability to understand the legal consequences of his statement; the second was the unreliability of the accused’s answers when he was in an anxiety‑producing situation. It seems that these two factors were still present to some extent when the admission was made to Dr. Wolwertz. An interview conducted by a psychiatrist pursuant to an order under s. 672.11 of the Criminal Code certainly gives rise to an anxiety-producing situation. Confirmation of the truth of the previous admission was therefore no more reliable than the admission itself. There is also no reason to conclude that the respondent was better able to understand the legal consequences of his statement to Dr. Wolwertz than those of his confession to the police. On the contrary, an accused is generally somewhat mistrustful of the police, whereas he might be less mistrustful as to the possible use of any statements he may make to a psychiatrist who is assessing his mental capacity.

26 It matters little that the declaration of inadmissibility was made after Dr. Wolwertz had used the original confession. This confession did not become inadmissible at that moment; it was inadmissible as soon as it was made. Knowledge of this inadmissibility by the person who obtains the second confession is not relevant. The second confession is inadmissible because it was derived from the first, not because it was used in bad faith by the person conducting the examination.

27 Since s. 672.21(3)(f) of the Code makes the protected statement admissible for the purpose of challenging the credibility of the accused, there is an apparent conflict here between two rules. To resolve the matter properly, we must first examine the scope of the exclusion of evidence under the confessions rule.

B. The Scope of the Confessions Rule

28 The principles which govern the admissibility of a statement made by an accused to a person in authority are essential to the integrity of the judicial process. As Sopinka J. stated in Whittle, supra, at p. 931:

While the confession rule and the right to silence originate in the common law, as principles of fundamental justice they have acquired constitutional status under s. 7 of the Charter.

29 As the exception in s. 672.21(3)(f) allows a statement to be used solely to challenge an accused’s credibility, and not as proof of its contents, it is important to know whether, notwithstanding the confessions rule, it is possible to use a statement whose voluntariness has not been established for this purpose. That is the first step, before arriving at the question of using a statement found to be inadmissible in order to challenge the credibility of an accused.

30 This question has been examined by Canadian courts on a number of occasions, and in particular by this Court in Hebert v. The Queen, 1954 48 (SCC), [1955] S.C.R. 120, as early as 1954. In that case, the Crown had sought to cross‑examine the accused on a statement he had made to the police, without a voir dire being held, to establish its voluntariness. With regard to this practice, Estey J. stated at p. 134:

A cross‑examination upon such a statement, by the great weight of authority in our provincial courts, as well as in the court of criminal appeal in England, has been condemned.

His colleague, Fauteux J., dealt specifically with the issue of credibility as follows at p. 147:

[translation] Moreover, did the Crown not seek to justify the introduction of this evidence in the record both at trial and in this Court merely through the provisions of sections 10 and 11 of the Evidence Act, which permit the credibility of witnesses to be challenged by cross‑examining them on their prior statements which are inconsistent with their testimony. The issue of whether, during the cross‑examination of an accused heard as a witness, the Crown may refer to statements made by him or her to the police, before it is determined whether the statements were made freely and voluntarily, has been considered in several cases. My colleague Cartwright J. referred to these decisions in his reasons and, like him, I am of the view that in the instant case, the Crown cannot further justify the position it has taken at trial and before this Court on this basis. The tendering of this evidence was therefore completely unlawful such that in my view it would have warranted, if not required, the declaration of a mistrial.

31 More recently, this Court again dealt with the issue, although incidentally, in R. v. Calder, 1996 232 (SCC), [1996] 1 S.C.R. 660. In that case Sopinka J. considered the admissibility of evidence under s. 24(2) of the Charter, drawing an analogy with the confessions rule. He put the question with regard to an involuntary confession, at para. 26:

Is the distinction between use of a statement for all purposes rather than for the limited purpose of impeaching credibility a valid one in the application of s. 24(2)? The respondent draws an analogy with the practice relating to confessions. An involuntary confession could not be used for any purpose. [Emphasis added.]

Citing Monette, supra, he added, at para. 26:

The authority of this case has not been questioned. Moreover, it is acknowledged by the appellant that involuntary statements may not be used by the Crown for any purpose. [Emphasis added.]

32 I do not believe that there can now be any doubt about the state of the law on this issue in Canada. Although it is possible, in certain circumstances, to distinguish between the use of evidence to challenge the credibility of an accused and its use on the merits, that is not the case with the confessions rule. The voluntariness of a statement, unlike the effect of evidence on the administration of justice, which may theoretically depend on the use made of it, is established only on the basis of the circumstances at the time the statement was made. A confession cannot suddenly become voluntary at the time of cross‑examination.

33 To reintroduce an involuntary statement in this way would run counter to the most fundamental aspect of trial fairness. In many cases, as here, the guilt of the accused will depend solely on his or her credibility and on that of the other witnesses. To allow the statement to be used, even for the limited purpose of undermining the credibility of the accused, could lead to abuse and serious injustice. That is why the traditional rule, which is still in force in Canadian law, must be interpreted in such a way that no use may be made of an inadmissible statement at any stage whatsoever of the trial.

34 This principle must not be confused with the rule applicable to witnesses, which allows a prior inconsistent statement to be introduced in cross‑examination only to impeach the credibility of a witness (see in this regard R. v. B. (K.G.), 1993 116 (SCC), [1993] 1 S.C.R. 740), or with the rule concerning s. 13 of the Charter, which also permits the cross‑examination of accused persons on their prior testimony, but only to challenge their credibility (see Kuldip, supra). There may also be an exception in the case of the cross‑examination of a co‑accused (see R. v. Pelletier (1986), 1986 1179 (BC CA), 29 C.C.C. (3d) 533 (B.C.C.A.)).

35 In the instant case, the confessions rule excludes the protected statement because it is derived from the prior inadmissible confession. We must, however, examine s. 672.21 of the Code to determine whether there is a real conflict between this provision and the confessions rule, or whether it is possible to reconcile them.

C. Interpretation of Section 672.21(3)(f) of the Criminal Code

36 A statutory provision such as s. 672.21 of the Criminal Code cannot be interpreted in a contextual vacuum. As I mentioned earlier, this section is the result of a lengthy consultation process and of the slow evolution of the law respecting criminal liability where the accused suffers from a mental disorder.

37 The object of this provision is to provide a guarantee of confidentiality to accused persons in order to facilitate the assessment of their mental capacity. Parliament was also concerned with respect for the essential principle of every criminal trial -- the search for truth. The parliamentary history is instructive in this regard. In fact, it is settled that when courts are called upon to consider the constitutionality of an enactment, they may take into account the parliamentary history, which is generally not the case for the ordinary interpretation of an enactment. As Professor P.‑A. Côté states in The Interpretation of Legislation in Canada (2nd ed. 1991), at p. 363:

The parliamentary history of the enactments whose constitutionality is being challenged may also be consulted, not with a view to interpreting the enactments, but in order to appreciate their validity, either from the standpoint of the division of powers, or of the Charter of Rights and Freedoms.

The same is true when the issue is whether the interpretation of a given enactment is consistent with the values of the Charter.

38 In a speech in the House of Commons on October 4, 1991 (during second reading of the bill), the then Minister of Justice, the Honourable Kim Campbell, identified the interests the legislation was seeking to reconcile. She said:

At present there is a risk that incriminating statements made to a doctor during a court‑ordered psychiatric assessment may be used as evidence against the accused. As a result, many defence counsels advise their clients to refuse to answer questions during such assessment. This deprives the doctor of a very important source of information about the accused and undermines the effectiveness of the court order.

At the same time, concern has been expressed by prosecutors that completely prohibiting the use of this evidence would deprive the court of important information needed to learn the truth about the accused and the offence.

(House of Commons Debates, vol. III, 3rd sess., 34th Parl., at p. 3296.)

Parliament thus sought a balance between the need to learn the truth and the protection of accused persons ordered to undergo an assessment of their mental capacity.

39 The appellant maintains that there is no reason to take the interpretation any further. The wording of s. 672.21(3)(f) clearly allows a protected statement to be used to challenge the credibility of an accused, and that is what the Crown has done in this case. According to the appellant, if Parliament had wished the admissibility of this statement to be subject to the rules of evidence applicable to criminal matters, it would certainly have said so. This argument cannot succeed. While the presumption against adding or deleting terms in interpreting legislation is certainly a long‑established principle at common law (see Thompson v. Goold & Co., [1910] A.C. 409 (H.L.), at p. 420), it is not the only principle to be considered.

40 First, the principle that legislation that overrides the common law must be strictly interpreted prevailed for a long time in Canada. Under this principle, it would have to be concluded that s. 672.21 does not in any way proscribe the use of the common law rules of evidence since it does not expressly provide for this. The application of this rule is not, however, conclusive.

41 Second, the rule cessante ratione legis, cessat ipsa lex, derived from the purposive method, which was adopted by this Court to interpret the Charter in R. v. Big M Drug Mart Ltd., 1985 69 (SCC), [1985] 1 S.C.R. 295, also supports a strict construction of the exception in s. 672.21(3)(f). According to this rule:

General words, however broad, in the absence of compelling reasons to the contrary, must be limited to the objects of the Act.

(See Motel Pierre Inc. v. Cité de Saint‑Laurent, [1967] Que. Q.B. 239, at p. 240.)

The object of the legislation in this case is to strike a balance between ascertaining the truth and facilitating an effective psychiatric assessment. This balance would be difficult to achieve if the rules of evidence which provide for the exclusion of otherwise inadmissible evidence were set aside. If the exception does in fact allow previously excluded evidence to be reintroduced indirectly, accused persons will refuse to answer some of their psychiatrist’s questions for fear this evidence may be reintroduced at trial. The cessante ratione legis rule thus stands in opposition to the appellant’s interpretation since that interpretation is contrary to one of the objects of the Act.

42 The conclusive argument, however, is the presumption of validity. That principle was recognized by this Court in Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038, and has been applied on numerous occasions since. Lamer J. (as he then was) described it as follows, at p. 1078:

Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect.

43 As I stated earlier, the confessions rule does not allow for any use of an involuntary statement. Now that Whittle, supra, has given constitutional expression to this rule, it must be concluded based on the historical definition of the confessions rule that both obtaining and using evidence contrary to this rule infringe s. 7 of the Charter. This is made apparent by the very existence of the “operating mind” test, which implies no police conduct that infringes the accused’s rights. In that respect, the rule is similar to s. 13 of the Charter, which may be violated by using testimony rather than by obtaining it. I do not agree with McLachlin J. that this entails a consideration of the constitutionality of an Act. In my view, that question has already been settled in Whittle; the issue here is simply to determine the scope of that decision. Also, contrary to the appellant’s contention, the actual wording of s. 672.21 is not inconsistent with the application of the confessions rule. In fact, nothing in the wording indicates that Parliament was trying to abolish it, especially if the section is read with the above‑mentioned principles of interpretation in mind. Moreover, the opposite conclusion would require this Court to declare s. 672.21(3)(f) unconstitutional, which would be inconsistent not only with the legislative intent, but also with the appellant’s position, as no provision would permit the introduction of the protected statement.

44 Since the protected statement in the instant case was inadmissible because of its degree of connection with the prior inadmissible confession, Parliament could not make it admissible for any purpose whatsoever without violating s. 7 of the Charter. It was argued that s. 24(2) of the Charter could allow this evidence to be used; however, I very much doubt this to be the case, in light of Calder, supra, where this Court ruled that a statement obtained in violation of the right to counsel was admissible for the purpose of challenging the accused’s credibility, but only in some “very limited” and “very special” circumstances. This is confirmed in R. v. Cook, 1998 802 (SCC), [1998] 2 S.C.R. 597, where Cory and Iacobucci JJ. stated for the majority, at para. 76:

It is not necessary to speculate what “special circumstances” would be required to allow the admission of evidence for a limited purpose that was not otherwise admissible. In our view those circumstances would be very rare indeed. In this case, there are no special circumstances which would justify such a finding. Rather, we find that there should be no difference, for the purposes of deciding whether to exclude the evidence under s. 24(2), between the admission of evidence generally and admission for the limited purpose of challenging the credibility of the accused.

45 It is also clear that s. 24(2) itself cannot guarantee the constitutional validity of s. 672.21(3)(f) of the Criminal Code. That is the role of s. 1. Therefore, notwithstanding s. 24(2), the appellant’s interpretation would be contrary to the Charter. In my view, applying the presumption of validity, we must prefer the interpretation that does not make the provision of no force or effect -- if that interpretation is at all plausible -- even if justification under s. 1 would be possible. This is sufficient to dispose of the appeal.

46 It is unnecessary to rule on the application of the various rules of evidence to the admissibility of a protected statement. The issue of whether the confessions rule applies directly to a psychiatric assessment ordered under s. 672.11, and whether the psychiatrist is a person in authority in this regard, will have to be decided when a suitable case presents itself.

47 Whatever the eventual number of rules of evidence that will have to be consistent with s. 672.21(3)(f), it should be noted that their application will affect only the admissibility of protected statements for trial purposes. The rules of evidence do not affect the psychiatrist’s work in assessing the mental capacity of the accused in any way. In the instant case, Dr. Wolwertz could use the confession to the police to make the psychiatric assessment of the accused. Only the admissibility for trial purposes of the statement thus obtained was compromised. The determination of mental capacity does not raise the same considerations of procedural fairness as the trial itself. The psychiatrist merely makes a recommendation to the court and the defence may always introduce its own psychiatric assessment if it believes that the first assessment was not made in accordance with the rules provided for in the section. Trial fairness is simply not in issue. What is important is to obtain the most accurate assessment possible of the accused’s mental capacity.

D. Waiver

48 The appellant argues that even though the statement was inadmissible, the defence waived the exercise of its right and accepted the introduction in evidence of the psychiatrist’s report and the statement it contained. The appellant also points out that neither did the respondent object to the use of this evidence by the Crown during cross‑examination of the accused.

49 First, this waiver must be placed in context. It was after the defence had filed the report of its expert, Dr. Lafleur, whose opinion had been used by Judge Lamoureux during the voir dire on the admissibility of the confession to the police, that the Crown sought to file the report of Dr. Wolwertz, to which the defence did not object. When Crown counsel later questioned the accused about his admission to Dr. Wolwertz, she was careful not to identify the document she was brandishing as the inadmissible confession. On neither occasion was the inadmissible confession the central issue and it could in a sense go unnoticed. As Proulx J.A. stated (at p. 243):

[translation] . . . I find it difficult to believe that after successfully challenging the admissibility of the admissions made by the appellant to the police, counsel for the appellant nevertheless wanted these admissions used against his client, through Dr. Wolwertz’s report. . . .

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), 1970 377 (ON CA), 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, 1981 56 (SCC), [1981] 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.

E. Appropriate Remedy

52 Although I have found that Judge Lamoureux erred in admitting the accused’s admission, that is not sufficient to dispose of the appeal. It is also important to consider how it was used in his reasons. There is no doubt in the instant case that the protected statement played a significant role in the trial judge’s conviction of B.G. He defended his verdict by saying:

[translation] With regard to credibility, certain seemingly insignificant facts which become exceedingly important in the decision I have to make must be considered. The accused denies he ever sexually assaulted the victim. However, he met with Dr. John Wolwertz and (inaudible) with the latter. And in his report, Dr. Wolwertz recounts the made‑up story, that the accused made admissions to Dr. Wolwertz concerning his sexual behaviour. . . .

The accused gave, invented two (2) scenarios for the crime with which he was charged. What credibility must I give to the testimony of the accused, who admitted to Dr. Wolwertz that he sexually assaulted the victim and who, under oath, before the Court, denied this statement? . . . I therefore accept what he said to Dr. Wolwertz.

Since there is other evidence which might stand against the accused, the Court of Appeal properly ordered a new trial rather than a stay of proceedings. The Crown did not seek the application of the remedial provision in s. 686(1)(b)(iii) to uphold the verdict of guilty despite the error in law on the ground that no substantial wrong or miscarriage of justice occurred. In fact, the Crown specifically refused to invoke the provision despite the Quebec Court of Appeal’s express inquiry.

VII. Conclusion and Disposition

53 For these reasons, I would dismiss the appeal and affirm the judgment of the Quebec Court of Appeal ordering a new trial.

The reasons of L’Heureux-Dubé, Gonthier and McLachlin JJ. were delivered by

//McLachlin J.//

54 McLachlin J. (dissenting) -- The accused was charged with several counts of sexual assault. He made a statement to the police admitting guilt. Later, he confirmed the validity of that statement to a psychiatrist in the course of a court-ordered assessment of his mental condition pursuant to s. 672.11(a) and (b) of the Criminal Code, R.S.C., 1985, c. C-46. At his trial, he took the stand in his defence and denied that he committed the offences in question, giving a different version of events from the one he had provided to the police and confirmed to the psychiatrist.

55 Section 672.21 of the Criminal Code provides that statements made by the accused in the course of a court-ordered assessment of his or her mental condition are “protected statements” inadmissible in evidence without the consent of the accused, subject to certain exceptions. One exception allows protected statements to be used to challenge the credibility of the accused if his or her testimony at a later proceeding is inconsistent with the previously made protected statements. The issue before us on this appeal is whether the trial judge erred in considering the statement the accused made to the psychiatrist when assessing his credibility at trial, pursuant to s. 672.21(3)(f) of the Criminal Code.

56 The statement the accused made to the psychiatrist is a “protected statement” defined by Parliament, under s. 672.21(1), as follows:

A protected statement cannot be used at trial, subject to certain exceptions, one of which is to challenge the credibility of the accused where he or she gives a different statement in evidence:

(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of

57 The accused contends that the trial judge erred in considering the statement the accused made to the psychiatrist when assessing his credibility at trial, notwithstanding s. 672.21(3)(f) of the Criminal Code, which on its face authorizes this. He argues: (1) that the statement to the psychiatrist is inadmissible as an involuntary confession made to a person in authority; (2) in the alternative, that the statement is inadmissible because it is the product of an earlier inadmissible confession; and (3) that in either case, s. 672.21(3)(f) does not permit its use, even to assess credibility. I cannot accept these arguments. I shall discuss each in turn.

58 I proceed on the basis that the trial judge used the accused’s statement only to assess his credibility. The trial judge began and ended his reasons with clear affirmations that the central issue before him was that of the accused’s credibility. Indeed, the case fell to be decided on the basis of the evidence of the complainant versus the evidence of the accused.

(1) The Argument that the Accused’s Statement to the Psychiatrist is an Involuntary Confession

59 The first argument is that the accused’s statement to the psychiatrist is an inadmissible confession, quite apart from the earlier inadmissible confession to the police. The argument depends upon the defence establishing that the psychiatrist was a person in authority and that he improperly obtained the confession from the accused by using threats or promises, or otherwise effectively depriving the accused of his right to choose whether to confess or not. At the very least, the defence argues, the trial judge should have held a voir dire to determine these matters. It seems clear that even if the psychiatrist could be considered a person in authority, there is no suggestion that he used threats, promises, or other techniques to deprive the accused of his choice. There is also no suggestion that the accused did not know his rights or that he did not possess an operating mind. The trial judge, having considered the reports of both the court-appointed and defence psychiatrists, concluded that the accused understood and appreciated the admissions he gave. The appeal was therefore quite properly advanced mainly on the basis that the statement to the psychiatrist is involuntary because of its connection to the accused’s earlier confession to the police which the trial judge had ruled inadmissible.

(2) The Argument that the Statement to the Psychiatrist is Inadmissible Because of its Links to the Earlier Inadmissible Confession to the Police

60 The second argument is that the accused’s statement to the psychiatrist is an inadmissible confession because of its links to the earlier police confession which the trial judge ruled inadmissible. 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.

62 Assuming, without deciding, that the person in authority requirement is met, the issue becomes whether the statement to the psychiatrist is rendered involuntary by the preceding statement to the police. The test was set by Sopinka J. in R. v. I. (L.R.) and T. (E.), 1993 51 (SCC), [1993] 4 S.C.R. 504, at p. 526:

. . . 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. [Emphasis added.]

As this statement makes clear, the issue is whether the second confession has been rendered involuntary. It if is not involuntary, it stands as an admissible confession.

63 On the first branch of the test, Sopinka J. held that “a subsequent confession would be involuntary if ... the tainting features which disqualified the first confession continued to be present”. Sopinka J. identified the following as potentially “tainting features”: 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 (I. (L.R.) and T. (E.), supra, at p. 526). On the second branch of the test, more apposite here, Sopinka J. stated that “a subsequent confession would be involuntary . . . if the fact that the first statement was made was a substantial factor contributing to the making of the second statement”. This might occur where the fact of the first statement produces a “strong urge to explain away incriminating matters in a prior statement” (p. 527); or the second statement was a “continuation of the first” (p. 531); or where, in light of the first statement, “the rationale for further restraint in self-incrimination was gone” (p. 532). In short, the inquiry is whether the first inadmissible confession effectively deprived the accused of the choice of whether to make the subsequent confession, rendering it involuntary and hence inadmissible.

64 To assert that every statement similar to or derived from an inadmissible statement thereby becomes inadmissible is to undermine the rationale of choice that lies at the heart of the confessions rule: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151, at p. 173. It would make virtually all second confessions inadmissible, regardless of the circumstances, since second statements almost always will have reference in some derivative way to prior statements. It would prevent an accused who has made an inadmissible first statement from making an admissible second statement, even where this is to his or her advantage. And it would disadvantage the search for the truth and the proper administration of justice, all in the absence of the self-incrimination and abuse rationales that underlie the rule that involuntary confessions should be excluded.

65 For these reasons, I respectfully dissent from my colleague Bastarache J.’s view that a subsequent statement is inadmissible if the second statement “arose out of the first” or where the first and the second statements “are one and the same”. The fact that the second statement contained no additional information, and that the second admission was merely an assertion of the truth of the first statement does not suffice, without more, to render a second confession inadmissible. Nor is a second confession rendered inadmissible because it is “contaminated” by or “exists only because of”, the prior inadmissible confession. Connectedness or similarity between a prior inadmissible confession and a subsequent statement renders the subsequent statement inadmissible only if it rises to the level of showing that the connection may have rendered the second statement involuntary.

66 Applying the doctrine of derivative exclusion set out in I. (L.R.) and T. (E.) to the facts here, and bearing in mind the protection against involuntary self-incrimination that lies at the heart of it, I conclude that the statement to the psychiatrist, assuming it to be a confession falling under the reach of this doctrine, is not inadmissible on either branch of the test. The time span between the first and second statements was long – about one year, during which time the accused consulted with a lawyer. There was no mass of subsequently discovered evidence acting as a practical compulsion to confess. The circumstances and personnel involved in the two situations were entirely different. The accused’s mother had explained to the accused the purpose and nature of the meeting with the psychiatrist. While the psychiatrist adverted to the first statement in questioning the accused, he did not do so in a deceptive or coercive way. The accused was never deprived of his right to choose whether to make the statement or not. These circumstances do not bring the case within the situations described by Sopinka J. where a second statement might be inadmissible on the basis of a prior inadmissible confession. The substantial connection between the two statements required by the law to establish involuntariness is not established, and the doctrine of derivative exclusion does not apply to exclude the statement at issue.

(3) The Argument that Section 672.21(3)(f) of the Criminal Code Does not Permit the Use of Inadmissible Confessions

67 In the event the accused was able to establish that the statement to the psychiatrist was an inadmissible confession, which I reject, he would face the further hurdle of showing that the inadmissibility of the statement took it out of the reach of s. 672.21(3)(f). To this end, the accused submits that the common law confessions rule and s. 11(c) of the Canadian Charter of Rights and Freedoms prohibit any subsequent use of an involuntary confession. He argues that, in order to conform with the requirements of the Charter, s. 672.21(3)(f) must be read down or interpreted as incorporating the common law confessions rule and excluding inadmissible confessions. On this view, the “protected statements” referred to in s. 672.21(3)(f), would have to be read as “protected statements, except inadmissible confessions”. Bastarache J. applies similar reasoning and concludes that the exception created under s. 672.21(3)(f) does not allow statements derived from inadmissible confessions to be used to challenge an accused’s credibility, because to do so would render the section unconstitutional in light of the “constitutionalized” confessions rule.

68 In my opinion, the statement to the psychiatrist, even if an inadmissible confession, could be used to challenge the accused’s credibility pursuant to s. 672.21(3)(f). The wording of s. 672.21(3)(f) is clear and conforms to the documented intention of Parliament. Given the lack of ambiguity in s. 672.21(3)(f) and the absence of a constitutional challenge of this section, I take the view that it cannot be read down on constitutional grounds. I also note that even if the constitutionality of the section were considered, there is every indication that it would pass constitutional muster.

69 The cardinal principle of interpretation is that a statute must be interpreted in a way that gives effect to the intention of Parliament. While various considerations and rules aid in ascertaining this intention, the words chosen by Parliament are the prime indicators of its purpose. Absent ambiguity, one can reasonably assume that Parliament said what it intended to say. The courts are not, however, the slave of the text. The words must be read with the object of the statute and the intention of Parliament in mind. A related rule is that the statute should be read in a way that avoids absurdity and assigns a meaning to all of the words Parliament has used. See generally: Rizzo & Rizzo Shoes Ltd. (Re), 1998 837 (SCC), [1998] 1 S.C.R. 27, per Iacobucci J. Yet another rule is that where two interpretations of a provision are possible, and one raises constitutional difficulty, the court should prefer the interpretation that more closely accords with the Constitution: Slaight Communications Inc. v. Davidson, 1989 92 (SCC), [1989] 1 S.C.R. 1038, at p. 1078, per Lamer J. (as he then was); R. v. Zundel, 1992 75 (SCC), [1992] 2 S.C.R. 731, at p. 771, per McLachlin J. This follows from the common-sense presumption that Parliament intends to respect the constitutional limits on its jurisdiction, Driedger on the Construction of Statutes (3rd ed. 1994), by R. Sullivan, at pp. 322-23.

70 In my view, the application of these principles to s. 672.21(3)(f) does not lead to the conclusion that it should be read as inapplicable to inadmissible confessions. I agree with Bastarache J. that Parliament had two purposes in passing s. 672.21. Parliament wished to facilitate court-ordered assessments of accused persons by providing them with a guarantee of confidentiality. Parliament, however, also wanted to uphold and protect the search for truth. The Minister of Justice indicated in introducing the provisions that she had received representations from the defence bar that lawyers were advising their clients to refuse to answer questions during such assessments to avoid the risk of incriminating statements. She noted that this practice threatened to undermine the effectiveness of court-ordered assessments. At the same time, the Minister indicated that she was alive to representations from those concerned with law enforcement that a complete interdiction on the use of such statements would deprive the courts of important information that might cast light on the accused’s situation and the crime. Section 672.21(3)(f) effects a compromise between these two Parliamentary purposes. To protect the confidentiality of the accused, s. 672.21 affirms that communications in court-ordered assessments or treatments are inadmissible in evidence absent consent, subject to certain exceptions. To uphold and protect the search for truth, s. 672.21(3)(f) creates a limited exception providing for the use of such statements to challenge the accused’s credibility where he or she takes the stand and testifies in a manner inconsistent with these statements.

71 An interpretation of s. 672.21(3)(f) that extends its limited use exception to otherwise inadmissible confessions is consistent with Parliament’s intentions. The common law distinguishes between tendering evidence for the purpose of incrimination and referring to evidence for the purpose of challenging credibility. It has long recognized that when an accused puts his or her credibility in issue by taking the stand, a range of otherwise inadmissible evidence is admissible to impeach that credibility. This is neither unfair nor unjust. The accused has chosen, under oath, to put a certain version of events before the court and ask the court to believe it. In so doing, the accused has opened the door to having the trustworthiness of the evidence he or she offers challenged on the basis of contrary statements. Getting at the truth is an important value in criminal trials. Permitting the Crown to cross-examine a witness by reference to other versions of the events he or she has presented furthers that goal. As stated by Lamer C.J. in R. v. Kuldip, 1990 64 (SCC), [1990] 3 S.C.R. 618, at pp. 635-36:

An accused has the right to remain silent during his or her trial. However, if an accused chooses to take the stand, that accused is implicitly vouching for his or her credibility. Such an accused, like any other witness, has therefore opened the door to having the trustworthiness of his/her evidence challenged. An interpretation of s.13 which insulates such an accused from having previous inconsistent statements put to him/her on cross-examination where the only purpose of doing so is to challenge that accused’s credibility, would, in my view, “stack the deck” too highly in favour of the accused.

This logic applies to all previously-made inconsistent statements of an accused, including inadmissible confessions. While the common law confessions rule has developed in a way that does not permit inadmissible confessions to be used to impeach credibility, Parliament has the power to alter the common law. It was therefore open to Parliament, absent constitutional impermissibility, to enact that all “protected statements” under s. 672.21, including inadmissible confessions, can be used to challenge the accused’s credibility if he or she takes the stand to tell a different story.

72 I conclude that reading s. 672.21(3)(f) as including inadmissible confessions, far from conflicting with Parliament’s goals, furthers them. The Crown is prohibited from using any statement in a court-ordered assessment as incriminating evidence against the accused. It cannot tender it as a confession. It cannot put it in as part of its case against the accused. At the same time, if the accused chooses to take the stand in his or her defence and tell a different story than that he or she told during his or her assessment, the Crown can use the statement to challenge his or her credibility. The statement, unless affirmed by the accused, does not become evidence against the accused. The judge cannot use it as part of the material upon which he or she bases a conviction. But the judge can use it to assist in assessing the accused’s credibility if the accused testifies in an inconsistent manner at trial.

73 The rules of statutory interpretation that each part of an enactment must be given full credit and that absurdity be avoided, also support this interpretation. In s. 672.21 Parliament has set up a general rule and carefully enunciated exceptions to it. In order to accept the position of the defence and Bastarache J., it is necessary to conclude that Parliament intended to enact yet another exception -- the inadmissible confessions exception -- but neglected to do so. The argument seems to be that Parliament saw no need to explicitly expound this exception, as it already existed at common law. It does not seem reasonable to me that Parliament, having carefully considered the need for a general rule and what exceptions there should be to that rule, should be assumed to have overlooked the confessions rule that bulks so large in criminal law in crafting its clearly articulated exception in s. 672.21(3)(f).

74 The argument is also advanced that to interpret s. 672.21(3)(f) as permitting the statement to be used to challenge the accused’s credibility violates the accused’s constitutional rights. Applying the principle of interpretation that where an ambiguous statute permits two meanings, one constitutional and the other not, the court should choose the constitutional meaning, it is argued that s. 672.21(3)(f) should be read as not applying to inadmissible confessions.

75 I find this principle of little assistance in the case at bar. It applies only where the statutory provision is ambiguous, in the sense of being capable of being read in two ways. It cannot apply in the case at bar since s. 672.21(3)(f), considered on its words and in light of Parliament’s stated intention, is not ambiguous. The section is quite clear -- protected statements cannot be used in evidence against the accused but can, exceptionally, be used to challenge the accused’s credibility where the accused takes the stand and tells a different story. It seems to me the Slaight rule of interpretation does not go so far as to entitle the Court to rewrite an unchallenged and unambiguous statutory provision under the guise of statutory interpretation.

76 In my view, this is sufficient to resolve this point. Absent ambiguity or a constitutional challenge, s. 672.21(3)(f) should be read as its words, confirmed by Parliament’s purpose, suggest. However, as Bastarache J. suggests that this result would be unconstitutional, it may be appropriate to point out some of the problems I see with my colleague’s assertion.

77 Bastarache J.’s reasoning appears to follow these lines: (1) the common law confessions rule does not permit inadmissible confessions or statements derived therefrom to be used to impeach an accused’s credibility; (2) certain aspects of the common law confessions rule have been “constitutionalized”; (3) to permit inadmissible confessions or statements derived therefrom to be used to challenge credibility runs counter to these aspects and is therefore unconstitutional.

78 The first premise in this syllogism is correct; the common law confessions rule does not permit inadmissible confessions to be used to impeach credibility. If the accused’s statement was found to be an inadmissible confession, a finding I reject, outside of the impugned statutory regime, it could not be used to challenge the accused’s credibility.

79 I cannot, however, concur in the second premise of this argument. While aspects of the common law confessions rule have been “constitutionalized” (if that is an appropriate term), we must be clear on what this means. There is a distinction between a right which is “constitutionalized”, and the consequences that flow from a breach of that right. The fact that a statement was obtained in breach of a constitutional right, specifically the right not to incriminate oneself, does not automatically render any subsequent use of the statement unconstitutional. Such a proposition would run counter to the Charter, which excludes evidence obtained in violation of Charter rights only “if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”: s. 24(2). For this reason, the Court in Hebert, supra, considering a confession obtained in violation of s. 7, went on to consider whether the constitutional breach rendered the statement inadmissible under s. 24(2). In that case, the statement was sought to be tendered as Crown evidence against the accused. The Court concluded that the statement at issue had been taken in violation of the accused’s right not to incriminate himself because the accused had been denied his right to choose whether to make the statement or not. Going on to s. 24(2), it held that the statement could not be used as evidence against the accused for the truth of its contents. But this does not mean that all uses of the statement would necessarily have been unconstitutional. While Hebert, supra, and R. v. Whittle, 1994 55 (SCC), [1994] 2 S.C.R. 914, constitutionalized aspects of the common law confessions rule, they did not endorse a constitutional right to be completely sheltered from all possible uses of inadmissible confessions as an inexorable remedy. Put in terms of this case, we cannot infer from the fact the accused holds a constitutional right to choose not to incriminate himself, that it is necessarily unconstitutional for Parliament to enact legislation that permits the use of such statements for the limited purpose of challenging credibility where the accused chooses to take the stand and ask the trier of fact to believe a different version of the events.

80 The aspect of the confessions rule that is constitutionally protected is the right under s. 7 of the Charter not to incriminate oneself. This right has been interpreted as being the right to choose whether to make a statement to authorities or not. The consequences of a breach of that right fall to be decided under s. 24 of the Charter by assessing whether the use of the statement will bring the administration of justice into disrepute. If situations arise where such use requires exclusion under s. 24(2) they may be addressed on the facts of the case at issue. This does not support the conclusion that Parliament is generally prohibited from permitting the use of protected statements, including inadmissible confessions, to challenge the accused’s credibility.

81 The comments of Iacobucci J. in R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, at para. 45, underscore this point:

That the principle against self-incrimination does have the status as an overarching principle does not imply that the principle provides absolute protection for an accused against all uses of information that has been compelled by statute or otherwise. The residual protections provided by the principle against self-incrimination as contained in s. 7 are specific, and contextually-sensitive. This point was made in Jones, supra, at p. 257, per Lamer C.J., and in S. (R.J.), supra, at paras. 96-100, per Iacobucci J., where it was explained that the parameters of the right to liberty can be affected by the context in which the right is asserted. The principle against self-incrimination demands different things at different times, with the task in every case being to determine exactly what the principle demands, if anything, within the particular context at issue. See also R. v. Lyons, 1987 25 (SCC), [1987] 2 S.C.R. 309, at p. 361, per La Forest J.

82 We cannot therefore infer from the fact that a confession is obtained in breach of the accused’s right not to incriminate himself, that it is unconstitutional to use the confession to impeach the accused’s credibility. On the contrary, the use of statements otherwise inadmissible for purpose of challenging credibility was upheld as constitutional in Kuldip, supra. There is no reason to assume that the use of statements derived from confessions for the same purpose under s. 672.21(3)(f) would be unconstitutional. It follows that there is no basis for suggesting that s. 672.21(3)(f), read exhaustively, is constitutionally suspect. Accordingly, even if the provision were ambiguous, I would find the presumption of validity embodied in Slaight, supra, of no application.

83 I readily acknowledge that this argument requires us to accept that the common law may not be perfectly congruent with Charter protection. I see nothing anomalous in this. Common law principles, even those that reflect Charter values, may in their details offer more protection than the Charter guarantees. The Charter sets out minimum standards to which the common law and statute law must conform. It does not preclude the common law and statute law from offering additional protection. There is therefore nothing exceptional in the fact that the common law confessions rule offers protection against uses of involuntary confessions that is not incorporated in s. 7 of the Charter.

84 I conclude that the limited use exception set out in s. 672.21(3)(f) is properly interpreted as applying to all “protected statements”, including inadmissible confessions. It follows that the trial judge did not err in using the statement for purposes of credibility.

85 I would allow the appeal and reinstate the conviction.

Appeal dismissed, L’Heureux‑Dubé, Gonthier and McLachlin JJ. dissenting.

Solicitors for the appellant: Maurice Galarneau, Montréal; Caroline Vallières, Sainte‑Foy.

Solicitors for the respondent: Malo & Associés, Joliette.

R. v. G. (B.), 1999 CanLII 690 (SCC), [1999] 2 SCR 475

I. Introduction

II. Facts

III. Relevant Statutory Provisions