The Admissibility of Statements | Dino Bottos
Criminal Law 25 program (2015/2016)
The Admissibility of Statements, written by Dino Bottos, reviews the admissibility of an accused’s out of court statements in a criminal trial, with reference to the leading cases on the subject. Read a summary of this paper below to learn more.
One of the basic rights enjoyed by every individual in Canada is the right against self-incrimination. Alternatively known as the right to silence, this right is protected by the common law confessions rule and by ss 7, 10, 11, and 13 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. This right is not absolute, however. Anglo-Canadian courts have long held that an out of court statement made by an accused, properly admitted, can be one of the most valuable pieces of evidence in reaching a proper verdict on the merits. Accordingly, a myriad of contextual factors, legal tests, and general principles must be considered and applied carefully.
Out of court statements made by accused persons vary greatly in nature, length, context, and importance. They are tendered by the prosecution for strategic reasons against an accused as an exception to the hearsay rule. Less often, these statements are tendered by the accused. Different rules govern the admissibility of statements depending on who seeks to introduce the statement, the purpose of its introduction, and the circumstances surrounding the giving of the statement.
A number of topics are covered, first beginning with defining what actions and communications do and do not qualify as a statement. Next, a succinct overview of the presumption against the admission of exculpatory statements made by the accused is provided. This is followed by an examination of recognized exceptions. The paper then focuses its analysis on inculpatory statements made by the accused which the Crown seeks to adduce. A series of common law and Charter exclusionary rules of evidence and criminal procedure are examined, including:
- the common law confessions rule,
- the informational and implementation requirements of s 10(b),
- s 7 and the corollary protective emanations of the Hebert and “Mr. Big” rules,
- and the factors counsel must consider when making a s 24(2) exclusionary argument.
The triggers, tests, and exceptions of these rules are explored and illuminated by means of discussion and comparison of relevant jurisprudence throughout.
Further topics addressed include the additional statutory protections afforded to young persons under the Youth Criminal Justice Act, SC 2002, c 1, the interaction between compelled statements and Charter protections and whether or not admissibility will be warranted, circumstances surrounding when a previous out of court confession will be producible, and in conclusion, practical advice to be taken into consideration when preparing for trial and the voir dire.
Ultimately, this paper demonstrates a number of ways statements may be contested for admissibility in criminal trials. The Charter, various pieces of legislation, and the common law serve as 3 distinct sources which serve to ground various exclusionary evidence rules relating to the admissibility of statements in an accused’s trial. Competent counsel should know the general principles pertaining to these sources for exclusion and are encouraged to review their respective cases early and periodically to be prepared for the identification of the issues, the marshaling of evidence, and the presentation of argument.
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