[53] The majority in Harrer and the unanimous court in Terry were of the opinion that if an accused is able to establish that the admission of evidence would violate his or her right to a fair trial, now recognized in ss. 7 and 11(d) of the Charter, the accused could seek exclusion of the evidence under s. 24(1) (para. 21 of Harrer; para. 25 of Terry). Alternatively, McLachlin J., as she then was, said in Harrer that, under the common law, a trial judge has the discretion to exclude evidence where its prejudicial effect would outweigh its probative value and, as well, a judge may exclude evidence which was not obtained by Charter breach but which would render the trial unfair either at common law or under s. 24(1) of the Charter (paras. 41-43).
[54] I agree with counsel for the respondent that the statements in Harrer and Terry may be viewed as having been taken by "persons in authority". No one would argue that a police officer interrogating a person held in custody in that officer's country would be regarded as anything other than a person in authority. The hope for advantage or fear of prejudice from a foreign police officer comes from the foreign officer's obvious authority over those in custody in the foreign country. However, the fact that the interrogations in those cases were conducted by "persons in authority" does not undermine the appellant's proposition that where interrogations are not subject to s. 10 Charter scrutiny, but are obtained in circumstances of oppression and violence, the statements may nonetheless be excluded pursuant to the common law power to ensure a fair trial, now guaranteed by s. 11(d) and s. 7 of the Charter. The observations in Harrer and Terry on trial fairness and the principles of fundamental justice, are the critical portions of those cases with respect to the arguments on this appeal.
[55] In Harrer, Mr. Justice La Forest considered the various remedies available for the exclusion of evidence:
[22] ... the argument was strongly advanced that since there was no breach of the Charter in obtaining the evidence, a prerequisite to the power to exclude evidence under s. 24(2) of the Charter, there was no Charter-based jurisdiction to exclude evidence. The difficulty with this contention is that it fails to appreciate the full nature of a fair trial. As I mentioned, while s. 24(2) is directed to the exclusion of evidence obtained in a manner that infringed a Charter right, it does not operate until there is a Charter breach. What we are concerned with here is not the remedy for a breach but with the manner in which a trial must be conducted if it is to be fair.
[56] What La Forest J. was addressing in that passage was trial fairness, and not with the conventional way of dealing with exclusion of confessions. Madam Justice McLachlin, as she then was, also considered trial fairness in Harrer, and quoted with approval, at para. 41, Lord Goddard's statement in Kuruma v. The Queen, [1955] A.C. 197 (P.C.) at 204, that at common law, a trial judge has discretion to exclude evidence "if the strict rules of admissibility would operate unfairly against the accused."
[57] In Harrer, McLachlin J. also noted that evidence may render a trial unfair for a variety of reasons, stating that if evidence is obtained by abusive police conduct, admission of the evidence at trial may render the trial unfair. Critical to the appellant's argument in this case, McLachlin J. also stated, at para. 46:
The way in which [evidence] was taken may render it unreliable. Its potential for misleading the trier of fact may outweigh such minimal value it might possess.
[58] Madam Justice McLachlin further observed that, "In the case at bar, police abuse or unfairness is the only ground [of rendering a trial unfair] raised, and hence the only one with which we need concern ourselves." While the Court did not have to go beyond the ground argued, McLachlin J. clearly envisaged that the manner in which evidence is obtained may render a trial unfair if the evidence were admitted and stated at para. 43 that in such situations, the evidence may be excluded pursuant to either the common law discretion or s. 24(1) of the Charter.
[59] In my opinion, Hodgson, supra, does not stand as a bar to the possibility of evidence of a confession being excluded other than through the confessions rule. In that case, Cory J. observed, at para. 26, that "there can be no doubt that there may well be great unfairness suffered by the accused when an involuntary confession obtained as a result of violence or credible threats of imminent violence by a private individual is admitted into evidence". While Cory J. expressed the opinion that change to the common law confessions rule should be effected by Parliament, rather than judicially, because the change would represent a significant change from the traditional rule, Harrer and Terry indicate that an alternative to the common law confessions rule already exists in the law which would permit exclusion of evidence if required to ensure a fair trial. In other words, Charter guarantees of trial fairness and fundamental justice may prompt exclusion of evidence regardless of whether the traditional common law confessions rule would reach the opposite result.
[60] In R. v. Buric, supra, Labrosse J.A. expressed the opinion that the obiter dicta in Harrer and Terry regarding trial fairness cannot be taken to displace the general rule that relevant evidence is admissible and its weight is to be determined by the trier of fact. Buric underlines the primacy of the general rule but, in that case, the evidence the trial judge had excluded was not the statement of an accused person, but of a witness whose evidence might have been tainted by the actions of the police. The witness whose evidence the trial judge excluded in Buric would have been subject to cross-examination.
[61] In this case, the statements sought to be excluded from evidence were made by an accused person. While the trial judge did not have the benefit of the appellant's testimony on the voir dire, it is apparent from his ruling on the voir dire and his reasons for judgment that he regarded the confession as being the product of the violence and threats of violence directed toward the appellant by the person to whom the confession was made. When a confession is the product of violence and threats of violence, concerns about its reliability are obviously present.
[62] Even if a jury is instructed that a confession obtained by violence or oppression of a private person should be accorded "very little, if any, weight," the jury will still hear the confession. Simply to admit evidence which should receive little or no weight takes no account of the probative value of the statement as compared to its prejudicial effect on an accused. As Cory J. stated in Hodgson at para. 14, "[e]vidence of a confession has always been accorded great weight by triers of fact. This is a natural manifestation of human experience." Thus, if a statement obtained by violence or threats of violence is not excluded, an accused faces a substantial risk of prejudice by a confession that may have little, if any, probative value.
[63] Mr. Justice Cory observed in Hodgson that legislative change in this area of confessions law is desirable and suggested that until legislative change could be effected, an instruction ought to be given to make clear that a confession obtained in circumstances of violence or oppression ought to be given little or no weight. In effect, that is what the trial judge did in this case.
[64] The arguments in Hodgson addressed the possible modification of the common law confessions rule and the opinion of the majority addressed that question. But in my respectful view, the majority opinion in Hodgson cannot be taken to require that all confessions to persons not in authority, regardless of whether the confession is obtained by violence or threats of violence, must be admitted into evidence. To so hold would ignore the court's discretion to exclude evidence, the probative value of which is outweighed by it prejudicial effect, and the power and discretion of the courts to ensure the fair trial of an accused.
[65] In my opinion, this is a case in which it was open to the trial judge to exclude the appellant's statements obtained in circumstances of violence and threats of violence on the basis that the potential prejudicial effect of the evidence outweighed its probative value. However, that was not a question the trial judge was asked to consider on the voir dire to determine whether the statements ought to be excluded from evidence.
Aucun commentaire:
Publier un commentaire