R v Mucpa, 2024 NUCA 15
[25] In assessing this aspect of the Voir Dire Decision we must ensure the trial judge applied the correct legal principles, did not admit irrelevant evidence, and did not otherwise err in law. No deference is owed in this respect: R v TWW, 2024 SCC 19 at paras 21-22.
[26] We agree that the trial judge erred by admitting the appellant’s criminal record. It was not relevant or admissible with respect to the issues before him. Ultimately, however, the trial judge did not use the appellant’s criminal record or past experiences in the criminal justice system in his analysis. As such, we are satisfied that those errors are harmless.
[27] In objectively assessing the voluntariness of an accused’s statements to the police, the “individual characteristics of the accused” are relevant: R v Tessier, 2022 SCC 35 at para 56 [Tessier]; R v Singh, 2007 SCC 48 at para 36. Depending on the specific issue before the court, this may include whether the accused has prior experience with the criminal justice system: R v Engel, 2016 ABCA 48 at paras 17, 19; R v Favel, 2022 ABQB 570 at para 494; R v Spencer, 2007 SCC 11 at para 21. Moreover, although the Crown need not prove an accused understood his right to remain silent, proof of subjective understanding can weigh in favour of finding voluntariness: Tessier at paras 57, 88.
[28] The evidence through which experience with the criminal justice is demonstrated will vary from case to case; in many cases an accused will not dispute their prior involvement with the criminal justice system.
[29] In this case the trial judge could have considered the appellant’s prior experience with the criminal justice system in a manner consistent with this case law. However, the trial judge needed to assess how reviewing the appellant’s criminal record assisted in resolving the questions at issue; he needed to identify the relevance of the record to the issues. In addition, the trial judge needed to assess whether the probative value of admitting the record outweighed its prejudicial effect: R v Villeda, 2010 ABCA 351 at paras 23-25; R v Handy, 2002 SCC 56 at paras 71-73. The trial judge did not make either of those assessments. He did not explain why the criminal record was relevant to the issues raised in the voir dire, and his reason for admitting it cannot be deduced from his analysis since he never referred to the appellant’s prior criminal experience in his assessment of the issues.
[30] We acknowledge that admitting the criminal record may be less problematic in a voir dire than in a trial proper, and that the trial judge did not consider the criminal record in the appellant’s trial. Nonetheless, on our review of the record here we are satisfied that the criminal record was not admissible with respect to voluntariness, and there was no legal basis for admitting it with respect to s. 10(b).
[31] Moreover, the trial judge drew improper factual inferences from the appellant’s criminal record. The fact of a prior arrest and conviction does not in and of itself provide evidence of what occurred during the course of that arrest. It is not sufficient to ground the inference that the appellant had his right to counsel and right to silence explained to him by the police and by duty counsel when previously arrested: Voir Dire Decision at para 49. The fact that the appellant had “experienced counsel” with respect to his prior offences does not logically illuminate what happened to him on arrest for those offences, especially absent evidence that his counsel assisted him during the arrest.
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