R. v. Montgomery, 2016 BCCA 379
[295] There is no dispute that whether to permit an accused to withdraw an admission is a matter within a trial judge’s discretion. The principles that apply are compendiously set out in McWilliams’ Canadian Criminal Evidence, 5th ed., by C. Hill, D.M. Tanovich and L.P. Strezos, Toronto: Canada Law Book, 2013 (loose-leaf updated 2016, release no. 1), at 25:60, which includes the following (footnotes omitted):
As to withdrawal of a factual admission: “The discretion of the Court ought to be warily exercised, normally, to defeat fiction, to help establish truth, and to relieve clients of fatal mistakes by lawyers”. “If it is sought to resile from them [admissions], first, the permission of the judge is required; and secondly, the judge is unlikely to give such permission unless he [or she] receives cogent evidence from the accused and those advising him [or her] that the admission had been made by a matter of mistake or misunderstanding.” The discretion to allow withdrawal of an admission once made “should be exercised sparingly and cautiously”.
Although a trial judge has a wide discretion to relieve a party of the strictures of an express factual admission and to require the party benefiting from the admitted fact to call evidence on the matter, regrets about a tactical decision to make an admission, a strategic decision otherwise falling within the range of reasonably competent counsel decision-making, will rarely result in an admission being backed out of the record of the proceeding. In other words, a factual admission, even if ill-advised or improvident, cannot be simply retracted at the will of a party.
The trial court, however, retains a discretion to avoid the consequence of an admission. The court is empowered to control its own process and to prevent manifest injustice. “From time to time counsel may err in making admissions” and if no prejudice is occasioned to the other side by granting relief from the admission, a court may be inclined to permit withdrawal of the factual admission where satisfied the admission was “made inadvertently and was one which ought not to have been made” or was “made clearly without authority or by mistake”. Where an accused would not have made an admission had he received timely disclosure, the court may allow withdrawal of an admission made prior to the late disclosure.
[Emphasis added.]
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