Il n'est pas nécessaire qu'une déclaration extrajudiciaire soit complète pour être admissible; il suffit qu'elle permettre une juste compréhension des verbalisations de la personne

R. v. Mallory, 2007 ONCA 46

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[203]      In our view, the trial judge erred in approaching the utterances as a series of separate statements rather than as one statement.  It is well accepted that if the Crown tenders the statement of an accused, it cannot pick and choose those parts of the statement that it would like the jury to hear; it must take “the good with the bad”, and both the “good” and the “bad” are admitted for their truth, for and against the accused.  Moreover, a party wishing to adduce a statement must put in as much of the statement as is necessary to permit a fair understanding of the individual utterances. 

[204]      The principle and its purpose were reviewed by the Appellate Division of the Supreme Court of Alberta in R. v. Girvin (1916), 1916 CanLII 669 (AB CA), 27 C.C.C. 265 at 271-72 (Alta. S.C.):

When the Crown, or a party wishes to use as evidence a confession or admission, the Crown or the party must ordinarily prove the confession or admission in its entirety, that is, with what is favourable as well as with what is unfavourable to the accused or the opposite party and when there is not this strict obligation or when it is not fulfilled the accused or the opposite party has a right to put in the favourable portion which has been omitted; and the favourable portion is evidence for the accused or the opposite party, equally with the unfavourable portion, at least in this sense, that it must be taken as interpreting the unfavourable part, which cannot be given a meaning as it stood by itself but only as modified by the favourable part.

…

So that not only is a prisoner entitled as of right to have a statement made by him considered in its entirety and in the absence of evidence of the falsity of any exculpatory portion, to have that exculpatory portion accepted as true; but, as another aspect of the same thing, he is entitled as of right to have such a statement considered in its entirety so that the true meaning of his statement may be made manifest for it is but in accordance with the plain dictates of justice and common sense that his statement, if used against him, shall be used only in the true sense in which he made it.

And not only is he so entitled, but, in order that the true sense of his statement may be ascertained, he is entitled to shew the facts and circumstances surrounding the making of it to the like extent that in the case of a contract he is entitled to shew them in order to assist in its interpretation.

[205]      This court spoke about the entire statement rule in R. v. Belanger (1975), 1975 CanLII 1267 (ON CA), 24 C.C.C. (2d) 10 at 15 (C.A.):

We are all of the view that the prosecution having elicited evidence that the appellants refused to go into the line-up, defence counsel was entitled to introduce before the jury, the whole of the utterance that took place in relation to the refusal of the appellant to go in the line-up.  In our view the prosecution, having introduced evidence that the accused refused to go in the line-up, it was not entitled to isolate that refusal from the rest of the utterance, in which the accused expressed their reason for refusing to go into the line-up.  In MacRae on Evidence, 7 C.E.D. (Ont. 2nd), at p. 275, the author says:

Where A puts in an admission by B and the admission as put in contains no portion favourable to B, B is nevertheless entitled to put in so much of the remainder of the utterance on the same subject as explains the part put in by A, in order to aid in the construction of the utterance as a whole.

 

See also R. v. Humphrey (2003), 2003 CanLII 6855 (ON CA), 172 C.C.C. (3d) 332 (Ont. C.A.); R. v. Lynch (1988), 30 O.A.C. 49 (Ont. C.A.); R. v. Black and Mackie, 1965 CanLII 241 (ON CA), [1966] 3 C.C.C. 187 (Ont. C.A.); R. v. Smith (1986), 1986 CanLII 7204 (NS CA), 71 N.S.R. (2d) 229 (N.S. C.A.); R. v. Bihun, 1965 CanLII 788 (MB CA), [1965] 4 C.C.C. 45 (Man. C.A.).

[206]      In determining whether statements qualify for separate treatment, factors to consider include the time gap between the utterances, the nature and form of the respective utterances, and the circumstances under which they were made: see R. v. Cybulski (1974), 1974 CanLII 1642 (MB CA), 19 C.C.C. (2d) 560 (Man. C.A.).