APPEAL ALLOWED ON THE DERIVED CONFESSION RULE AND YOUNG PERSONS

Here is an excerpt from a recent decision from the Court of Appeal allowing the appeal on the derived confession rule and young persons, and s. 146(2) of the YJCA.  It is good for the defence.  It has good language about what the police have do to dispel the taint of first statement effect on the second.  The issue was the police asked un-cautioned questions to ‘build up rapport’ and then put the accused on video after he already confessed.

 
"[73]        The advice provided by Det. Peacock at the outset of the videotaped interview represented at once an attempt to comply with s. 146(2)(b) of the YCJA, to establish the voluntary nature of the interview, and to cleanse the interview of any contaminating effects of the first interview. Nowhere, however, did Det. Peacock advise M.D. in the second interview that he should not be influenced in his decision whether to speak or to say nothing by the fact that he had earlier talked to the officers or by what he had said there: Plaha, at para. 53. Nor was M.D. told that the prior statement would not be admissible against him at his trial: R. v. J. L., [2000] O.J. No. 299 (C.A.), at para. 5.
 
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[76]        The trial judge does not appear to have considered the effect of Det. Peacock’s failure to tell M.D. about the inadmissibility of the prior statement at the outset, indeed at any time during the second interview. This admission left M.D., a 14-year-old grade 9 student, with an incomplete understanding of his jeopardy when deciding whether to speak or remain silent. In the circumstances of this case, such advice was necessary to dispel the taint associated with the first interview.  Its absence cemented the connection between the two statements.  In a similar way, the failure to advise M.D. that, in deciding whether to speak a second time, he should not be influenced by the fact that he had talked to the police earlier, or by what he had said then, was an essential factor that required, but did not receive consideration in the admissibility decision."