R. v. Calnen, 2015 NSSC 318
[12] The applicable legal principles are not controversial. As a general rule, the statement of an accused person may be edited to avoid undue prejudice and eliminate matters which it is best the jury not know: R. v. Weaver (1966), 51 Cr. App. R. 77. The editing process must ensure, however, that the remaining portions of the statement retain their proper meaning in relation to the whole of the statement: R. v. Kanester (1966), 1966 CanLII 544 (BC CA), 48 C.R. 352, [1966] B.C.J. No. 77 (C.A.). Where a statement includes reference to an irrelevant fact or facts, if the facts may be separated from the rest of the statement without affecting its tenure, the irrelevant parts should be excluded: R. v. Beatty, 1944 CanLII 22 (SCC), [1944] S.C.R. 73.
[13] I have reviewed a host of cases to assist with the task of determining whether any, all or some portions of the statements should be excluded from the jury. In considering the general principles to be followed, I have found a very helpful canvassing of the law by Justice Moreau in R. v. White, 2006 ABQB 788 (CanLII) at paras. 4-11:
[4] Evidence may be excluded if its admission would result in unfairness or the prejudicial effect of its admission outweighs its probative value: R. v. Buhay, [2003] 1 S.C .R. 631, per Arbour J., speaking for the Court, at para. 40:
... even in the absence of a Charter breach, judges have a discretion at common law to exclude evidence obtained in circumstances such that it would result in unfairness if the evidence was admitted at trial, or if the prejudicial effect of admitting the evidence outweighs its probative value (See, in the context of confessions: R. v. Rothman, [1981] 1 S.C.R. 410, at p. 696 per Lamer J., as he then was; R. v. Oickle, 2000 SCC 38 (CanLII), [2000] 2 S.C.R. 3, at para. 69, per Iacobucci J....
[5] In balancing probative value against prejudicial effect, consideration may be given to whether the prejudicial effect of the evidence would be out of proportion to its true evidential value. Maclean J.A.’s dissenting reasons in R. v. Kanester, 1966 CanLII 544 (BC CA), [1966] 4 C.C.C. 231 (B.C.C.A.), adopted by the Supreme Court of Canada (1966 CanLII 529 (SCC), [1967] 1 C.C.C. 97), referred, at para. 91, to the comments of Lord du Parcq in Noor Mohammed v. Rex, 1949 CanLII 437 (UK JCPC), [1949] A.C. 182, at 192:
It is right to add, however, that in all such cases the judge ought to consider whether evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge will be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.
[6] In R. v. Beatty, 1944 CanLII 22 (SCC), [1944] S.C.R. 73, Duff C.J.C. clarified his reasoning in Rex v. Thiffault, 1933 CanLII 52 (SCC), [1933] S.C. R. 509 as to the restrictions on the use of a prior admission by an accused that contains inadmissible evidence (at para. 9):
We also considered that a document professing to embody the effect of admissions obtained in the way the admissions were obtained in that case, and containing inter alia a record of an admission of a fact that would be inadmissible as evidence against the accused and was calculated to prejudice him, ought not to be admitted as evidence against him.
[7] In Thiffault, the portion of the police interview of the accused relating to his earlier arrest for another criminal offence was determined (at para.12) not to be admissible, not only on the ground that it was wholly irrelevant, but also on the basis of the unfair prejudice to the accused.
[8] Duff C.J.C., in Beatty, pointed out (at para. 10) that if the statement of the irrelevant fact can be separated from the rest of the document without in any way affecting the tenor of that which remains, then the trial judge in most cases would probably be able to excise the objectionable portion while permitting the unobjectionable part of the document to go before the jury. The trial judge’s duty in that regard was described by Maclean J.A. in Kanester, at para. 48:
A very heavy duty lies upon a trial judge who admits a statement of this nature, where editing is of paramount importance, in order that evidence which may be irrelevant or unnecessarily prejudicial to the accused may be carved out from the original statement and yet insure that the remaining portions will retain their proper meaning in relation to the whole in the sense that when taken out of context the admissibility portions are relevant and do not lose their meaning and yet are freed from unnecessary prejudice that is out of balance with the purpose to be served by admitting the edited statement.
[9] In R. v. Dubois (1986), 1986 CanLII 4683 (ON CA), 27 C.C.C. (3d) 325 (Ont.C.A.), Morden J.A. noted at para. 56 that portions of the wiretap evidence in that case, although substantially irrelevant, were part of a context for understanding the evidence that did relate to the charge before the court. A new trial was ordered, however, the trial judge having failed to weigh the probative value of the challenged evidence against its prejudicial effect, having admitted clearly irrelevant or only tenuously relevant evidence, and having failed to adequately instruct the jury on the use they could make of the evidence.
[10] Ferguson J. referred in R. v. Jacobsen 2004 CarswellOnt 6675, (Ont. S.Ct.) at para. 4 to a useful summary of principles applied to the editing of statements in R. v. Grewall, 2000 BCSC 820 (CanLII), [2000] B.C.J. No. 2383 (B.C.S.C.) at para. 36:
(a) Editing of a statement may at times be necessary because of the inclusion of irrelevant or unnecessarily prejudicial evidence but such editing must not affect the tenor of a relevant statement.
(b) Edited statements must be free from unnecessary prejudice, but the remaining portions must retain their proper meaning.
(c) The jury should have as much as possible of a statement said to constitute an admission in order to place it into context for the purpose of determining its truth.
(d) Even though substantively irrelevant, contextual evidentiary relevance may allow admission.
(e) The extent of the admissibility of that contextual evidence and probative value must still, however, be weighed and balanced against its prejudicial effect.
[11] A further consideration in the editing process is whether a limiting instruction will be effective to address any prejudicial effect of admitting the evidence: Jacobsen, at para. 7.
[14] I will apply these general principles to the statements under consideration in this case.
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