R. v. R.A.H., 2017 PECA 5
[52] The admission that the requirements of s.715.1 were met is not an admission of fact. It is only counsel's opinion. The authors of Phipson on Evidence (London, Sweet & Maxwell, 17th Ed.), at para.4-15, state as follows:
Law and fact. Admissions are receivable to prove matters of law, or mixed law and fact, though (unless amounting to estoppels) these are generally of little weight, being necessarily founded on mere opinion. ...
[53] An admission of law, or mixed fact and law, cannot bind the trial judge (Serra v. Serra, 2009 ONCA 105), and can be withdrawn at any time even at the Court of Appeal level (R. v. Baty, [1958] CanLII 93 (Ont.C.A.), Highly v. C.P.R., 1929 CanLII 410 (ON CA), [1930] 1 D.L.R. 630 (Ont.C.A.)), as happened in this case. While the trial judge was entitled to consider an experienced defence counsel's admission of law or mixed fact and law, defence counsel's opinion cannot usurp the trial judge's duty to ensure the requirements of s.715.1 are met before admitting the video statements. It is the trial judge who must be satisfied that these conditions are met, not defence counsel. The trial judge has a duty to direct his or her mind to the requirements of s.715.1 before deciding the admissibility of the video-recorded statements. Failure to do so is a reversible error.
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