Upon review of the newest Supreme Court of Canada case, the much-anticipated Hart case on the admissibility of confessions resulting from Mr. Big investigations, it is worthwhile to return to the basics. Certainly Mr. Justice Moldaver, in his majority decision, did when he concluded that in the first prong of the applicable evidentiary test is the judicial weighing of the probative value of the evidence against the prejudicial effect. Although Justice Moldaver returns to the 1981 Rothman case as a basis for this “old school” rule, the evidential principle comes from the 1971 Wray case.
John Wray was charged with what was then called non-capital murder – a capital murder was punishable by death and at that time was reserved for the killing of on-duty police officers and prison guards. The victim was shot during the course of a robbery and there were no witnesses to the actual shooting. It was only through the police investigation, namely a lengthy police questioning, that John Wray ultimately signed a statement indicating where he disposed of the rifle used to shoot the victim. The rifle was found in the place so indicated and Wray was charged. At trial, after a voir dire on the admissibility of Wray’s statement, the trial judge ruled the statement inadmissible as it was not voluntarily given. This ruling was not the subject of the subsequent appeals. The issue on appeal was the trial judge’s further ruling that Wray’s involvement in the finding of the rifle was inadmissible as well. The Ontario Court of Appeal unanimously upheld the trial judge’s decision. The majority of the Supreme Court of Canada, with Mr. Justice Martland writing the decision, allowed the appeal and sent the matter back for a new trial.
Although this is a case where the evidence was found to be admissible, it is the principles enunciated in this case which impacted the manner in which trial judge’s viewed admissibility of evidence thereafter. Now, it must be remembered that this case is pre-Charter and yes, there is such an animal. It should also be remembered – and I will not try to sound as if I am nagging – that there are important admissibility issues to consider separate from the usual Charter based arguments. The first consideration when faced with a confession in a case is to review the voluntariness of the statement to ensure the statement was given freely and without hope or advantage. So, although Wary is certainly pre-Charter and if determined today, the analysis under the Charter lens would no doubt differ, the case started a line of reasoning, which can be traced to the Hart decision we have today. What is also fascinating about this line of reasoning is to see how this discretionary evidential principle of exclusion or admissibility – whichever way you want to view it – starts as a very restrictive and rarely to be exercised act to the pro forma requirement of a “new common law rule” as articulated by Justice Moldaver in Hart.
Justice Martland’s reluctance to “approve” of a discretionary exclusion of evidence is palpable. Yet, the English authorities require it. He clarifies the difference between the “unfortunate” effect on the accused of relevant admissible evidence, which would be prejudicial to the accused and the “allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly.” Of special note are the adjectives or qualifiers used by Justice Martland when he finally articlulated the discretion as arising “where the admission of evidence, though legally admissible, would operate unfairly, because, as stated in Noor Mohamed, it had trivial probative value, but was highly prejudicial.” Notice the emphasis added. The added practical difficulty for Justice Martland with excluding evidence on the basis of “unfairness” was the interpretation of that word. In Martland’s view, therefore, the discretionary exclusion of relevant and probative evidence should be “very limited.” This restrictive view of the discretion was reiterated in the Hogan case, in which Justice Martland was a member of the majority.
Within a decade of the Wray judgment, as per the Rothman case, the limited discretion reluctantly approved of by Justice Martland is referred to as an “exclusionary rule” by the then, Justice Lamer, concurring with the majority. Interestingly, Justice Lamer refers to the Wray principle, while Justice Martland writing for the majority does not. Rothman sets out the test to determine whether or not a person taking a statement from an accused is a “person in authority” and broadened the circumstances in which a statement may not have been given freely and voluntarily.
Post Rothamn, the evidential world changed as common law evidential rules become imbued with Charter values. But this transition was not easily done or easily accepted. In Corbett, the Supreme Court of Canada struggled with the constitutionality of s. 12 of the Canada Evidence Act, which permitted the questioning of any witness, including the accused person, on his or her criminal convictions. Although the decision is unanimous in the sense that all six members agreed that s. 12 of the CEA was constitutional and recognized the trial judge, under common law, had the discretion to exclude admissible evidence (however Justices McIntyre and Le Dain did not see this discretion as permitting a trial judge to circumvent a clear legislative directive as found in s.12), there was disagreement over the exercise of that discretion. Thus, it is in Corbett, where Justice Martland’s reticent discretionary rule becomes a fully recognizable discretion in the trial judge to exclude admissible, yet prejudicial evidence. But Corbett, although not mentioned in the Hart case, seems to raise similar concerns. Through the exclusionary discretion of the trial judge, together with other evidential rules that limit the use to be made of the evidence, the law protects the right of the accused to a fair trial, which includes, as stated by the then Chief Justice Dickson, the right “not to be convicted except on evidence directly relevant to the charge in question.” This protection “strives to avoid the risk of prejudicing an accused’s trial.” These words are echoed by Justice Moldaver in the Hart case as he speaks of the “risks inherent in the Mr. Big confessions,” which require a legal response in order to protect “accused persons, and the justice system as a whole” from “abusive state conduct.” It is, therefore, Martland’s reluctant rule, the seemingly rare discretion, which blossomed under the Charter lens, which the Hart Court turns to as the legal protection needed. Yes, we have come a long way since Wray and there is no looking back.