Les admissions sont une exception reconnue à la règle du ouï-dire

R. v Medwedrich, 2024 BCSC 1849

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Admissibility of Evidence

[8]         Evidence that is relevant to an issue at trial is admissible, as long as it is not subject to an exclusionary rule and the trial judge does not exercise their discretion to exclude it: R. v. Schneider, 2022 SCC 34 at para. 36; R. v. Corbett, [1988] 1 S.C.R. 670, 1988 CanLII 80 at paras. 99–101. Assessing the relevance of evidence is a contextual exercise and is done in the context of both the entire case in which the evidence is proffered and the positions of counsel: R. v. Ansari, 2015 ONCA 575 at para. 103, leave to appeal to SCC ref’d, 36740 (7 April 2016). The admissibility of all evidence is determined based on a three-part test requiring the judge to consider: (1) whether the evidence is relevant; (2) whether it is subject to an exclusionary rule; and (3) even if it is not subject to any exclusionary rule, whether to exercise their discretion to exclude it: Schneider at para. 36; R. v. P.(R.), 58 C.C.C. (3d) 334, [1990] O.J. No. 3418 at para. 38 (H.C.J.).

[9]         The general rule is that preliminary questions, which are a condition for the admissibility of a piece of evidence, are for the trial judge in their capacity as the judge of the law rather than as the trier of fact: R. v. Evans, [1993] 3 S.C.R. 653, 1993 CanLII 86 at 664. Even on a judge alone trial, the judge must keep in mind their different functions at different stages of the process: Evans at 666.

Hearsay

[10]      Hearsay evidence is subject to an exclusionary rule and various exceptions: Schneider at para. 46. Hearsay evidence has three components: (1) a statement (or action) made outside of court by a declarant; (2) which a party seeks to adduce in court for the truth of its content; (3) without the ability of the other party to contemporaneously cross‑examine the declarant (Schneider at para. 47).

[11]      Historically, hearsay evidence was excluded as a safeguard against inaccurate fact finding, based on the primary concerns that it might be unreliable and did not afford parties the ability to test its reliability by cross-examination: Schneider at para. 48. However, to overcome situations where the exclusion of hearsay impeded rather than furthered accurate fact finding, a number of exceptions to the exclusionary rule developed: Schneider at para. 49. In time, these exceptions became viewed as a labyrinth which, if rigidly applied, could also detract from accurate fact finding: Schneider at para. 49. To respond to those concerns, the law developed the “principled approach to hearsay”, under which hearsay evidence remains presumptively inadmissible unless it falls under a recognized exception to the hearsay rule, which presumptively remain in place: Schneider at para. 50.

Party Admissions

[12]      Admissions by a party are admissible as a recognized exception to the hearsay rule. The party admissions exception is the same for both criminal and civil cases, subject to the special rules governing confessions (i.e., statements made to persons in authority, which is not the case here) that apply in criminal cases: Schneider at para. 52.

[13]      Admissions include any acts or words of a party offered as evidence against that party, and can include silence and demeanour: Schneider at paras. 56–57.

[14]      Admissions are presumed to be truthful and are admitted without any necessity and reliability analysis, based on “the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements”: Schneider at para. 55; Evans at 664.

[15]      If there is some evidence identifying the accused with words, the evidence constitutes admissions by the accused and will be presumptively be put before the trier of fact who will, at the end of the trial, consider (1) whether, on the basis of all of the admitted evidence, the Crown has established that the statement is that of the accused; and if so, (2) consider the contents of the statement, along with other admissible evidence in the trial, to determine whether the Crown has discharged its burden to prove, beyond a reasonable doubt, the accused is guilty of the offence(s) charged: Evans at 668.

[16]      As Justice Rowe observed in Schneider at para. 37, the SCC has noted in obiter that a voir dire may not be necessary for party admission evidence (citing R. v. S.G.T., 2010 SCC 20 at para. 20). Whether a voir dire is needed for such evidence is to be determined in the circumstances of each case. In this case, the parties both agreed to proceed on the basis of a voir dire.