L'admissibilité d'un élément de preuve ne s'apprécie pas selon le fardeau de preuve "hors de tout doute raisonnable"

R. v. Murphy, 2011 NSCA 54 (CanLII)

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[41]         The trial judge’s treatment of the standard of proof for admissibility essentially required the photographs to be proven as if they were an essential element of the offence.  In R. v. Jeffrey, [1993] A.J. 639 (Q.L.), the Alberta Court of Appeal held:

18     The appellant argues that the Crown must prove irreconcilable separation beyond a reasonable doubt. Because s. 7 of the Charterguarantees every accused a trial according to the principles of fundamental justice, no lesser standard of proof can obtain.

19     A very basic principle of fundamental justice is that the standard of proof in a criminal proceeding is proof beyond a reasonable doubt. However, proof beyond a reasonable doubt is only applicable to the elements of the offence and the ultimate issue. It is not applicable to each and every piece of evidence R. v. Morin (1988) 1988 CanLII 8 (SCC), 44 C.C.C. (3d) 193 (S.C.C.). If each and every piece of evidence does not have to answer to the criminal burden of proof, it is illogical to assert that the admissibility of such evidence must be proven by that standard.

20     One instance in which admissibility does require proof of an issue beyond a reasonable doubt said by the appellant to support his position is the threshold test of the voluntary nature of a confession: Park v. The Queen (1981) 1981 CanLII 56 (SCC), 59 C.C.C. (2d) 385 (S.C.C.) R. v. Pickett (1975), 28 C.C.C. (2d) 297 (Ont. C.A.). However, a confession is substantively different from other kinds of evidence, since it goes directly to the ultimate issue of guilt or innocence, and, historically, by its very nature is suspect because of the form in which it comes to the court.

[42]         The trial judge was in error in treating the photographs as if they were an element of the offence.  To borrow from the words of the court in R. v. Jeffrey, supra, it is illogical to assert that the admissibility of such evidence would have to be proven beyond a reasonable doubt. 

[43]         Indeed, this error is also acknowledged by the respondent, however, again, the respondent submits that even though the trial judge was in error, there was some merit to the trial judge having excluded the evidence and argues:

The court’s findings reveal that even if the cd had been admitted into evidence the weight attached to it would have been diminished.