R. v. Calder, [1996] 1 S.C.R. 660
Her Majesty The Queen Appellant
v.
Murray Calder Respondent
Indexed as: R. v. Calder
File No.: 24323.
1995: November 9; 1996: March 21.
Present: La Forest, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Charter of Rights ‑‑ Exclusion of evidence ‑‑ Trial judge excluding statement obtained from accused in violation of his right to counsel from Crown's case in chief ‑‑ Crown later seeking to have statement admitted to impeach accused's testimony at trial ‑‑ Whether change of circumstances justifies reconsideration of trial judge's earlier ruling that admission of the evidence would bring administration of justice into disrepute ‑‑ Canadian Charter of Rights and Freedoms, s. 24(2).
The accused, a police officer, was charged with attempting to purchase the sexual services of a person under 18 years of age, extortion, and breach of trust. All of the charges arose out of a single incident involving him and a 17‑year‑old prostitute. Prior to being charged, the accused was interviewed by two investigating officers, who cautioned him but did not inform him of his right to counsel. During the course of the interview, the accused denied having gone to a particular street corner the previous night at the time allegedly appointed for a meeting with the complainant prostitute. This statement was untrue, as was demonstrated by the evidence of an independent witness as well as that of the complainant, and of the accused at trial. The Crown wished to use the accused's statement as substantive evidence of consciousness of guilt. The trial judge held that s. 10(b) of the Canadian Charter of Rights and Freedoms had been breached by the investigating officers and excluded the statement pursuant to s. 24(2). He also refused to permit the Crown to use the previously excluded statement to impeach the accused's credibility during cross‑examination. The accused was acquitted of all charges. The Court of Appeal, in a majority decision, dismissed the Crown's appeal. This appeal is to determine whether tender of the accused's out‑of‑court statement for the purpose of cross‑examination constituted a change of circumstances justifying a reconsideration of the trial judge's earlier ruling that admission of the evidence would bring the administration of justice into disrepute.
Held (McLachlin J. dissenting): The appeal should be dismissed.
Per Sopinka, Gonthier, Cory, Iacobucci and Major JJ.: The circumstances relied on by the Crown as establishing a change of circumstances in this case were the fact that the accused testified at variance with his previous statement, and the proposed limited use of the evidence. The Crown sought the introduction of the statement, however, because it was in a position to prove from its own witnesses that it was false. In light of this, it would not have escaped the Crown that the accused would likely testify and that his testimony could contradict the statement. With respect to the proposed limited use of the evidence, tender of an admission as evidence generally constitutes tender of it for all purposes unless it is tendered for a limited purpose. In this case, there was no indication that the admission was to be used only as part of the Crown's case in chief and not for the purpose of cross‑examination. Accordingly, the proposed use was one of the two uses for which the evidence had been tendered and excluded.
The preoccupation of s. 24(2) of the Charter is with the effect that admission of the evidence will have on the repute of the administration of justice. Destroying the credibility of an accused who takes the stand in his or her defence using evidence obtained from the mouth of the accused in breach of his or her Charter rights will usually have the same effect as use of the same evidence when adduced by the Crown in its case in chief for the purpose of incrimination. It will only be in very limited circumstances that a change in use as proposed in this case will qualify as a material change of circumstances that would warrant reopening the issue once evidence has been excluded under s. 24(2). However, the possibility should not be entirely ruled out. To the extent that the Crown considers in a given case that restricting use of a statement to cross‑examination will lighten its task in getting the statement admitted for this purpose under s. 24(2), it can seek a ruling to this effect either during its case or before cross‑examining the accused. In either case, a voir dire will be necessary in which the trial judge will consider the admissibility of the statement for the limited purpose for which the Crown intends to use the statement. Here, the admission of the impugned statement was rejected by the trial judge when it was tendered during the Crown's case in chief. The trial judge's finding that the statement's admission would bring the administration of justice into disrepute was confirmed by the Court of Appeal and is not challenged by the Crown. The evidence at trial developed into a contest of credibility between the complainant and the accused. In acquitting the accused, the jury no doubt considered that the evidence of the accused was sufficiently credible at least to raise a reasonable doubt. In view of the potential effect on the credibility of the accused and the findings of the trial judge, the proposed use of the statement for impeachment of credibility was not a material change of circumstances which warranted a reconsideration of the finding that the admission of the statement would bring the administration of justice into disrepute.
Per La Forest J.: Sopinka J.'s reasons were generally agreed with, except that it is difficult to imagine any special circumstances that would warrant departure from the approach set forth.
Per McLachlin J. (dissenting): Under s. 24(2) of the Charter, the only question is whether admission of the statement in "all the circumstances" would bring the administration of justice into disrepute. When the Crown tenders a witness's statement as substantive evidence of what happened, different considerations may arise than when the same statement is used to test the maker's credibility in cross‑examination. The concern for getting at the truth may weigh against admitting a statement tendered as substantive evidence where there is fear that the Charter violation may have rendered it unreliable. The same concern for getting at the truth may weigh in favour of using the same statement in cross‑examination to test the accused's credibility and uncover any inaccuracies or fabrications in his evidence in chief. The same applies to the interest of protecting the accused's right to a fair trial. It may be seen as unfair to tender against an accused as substantive evidence a statement which the state obtained from him in violation of his Charter rights. However, where the accused chooses to take the stand and place his credibility in issue, it is more difficult to say that it is unfair to permit the Crown to cross‑examine him on his prior inconsistent statement and to put to him the vital question of which version is true. Here the trial judge erred in law in holding that he could not reassess the admissibility of the accused's statement when it was offered for impeachment purposes during the accused's cross‑examination, and the Crown has met the heavy onus of demonstrating with a reasonable degree of certainty that the verdict would not necessarily have been the same had the error in law not been made.
Cases Cited
By Sopinka J.
Distinguished: R. v. Kuldip, [1990] 3 S.C.R. 618; referred to: R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Collins, [1987] 1 S.C.R. 265; R. v. Adams, [1995] 4 S.C.R. 707; Deacon v. The King, [1947] S.C.R. 531; McInroy v. The Queen, [1979] 1 S.C.R. 588; R. v. Crawford, [1995] 1 S.C.R. 858; R. v. U. (F.J.), [1995] 3 S.C.R. 764; Monette v. The Queen, [1956] S.C.R. 400; R. v. Whittle, [1994] 2 S.C.R. 914; R. v. Edwards (1986), 31 C.R.R. 343; R. v. Rousseau (1990), 54 C.C.C. (3d) 378; R. v. Armstrong, [1993] O.J. No. 2703 (QL); R. v. Burlingham, [1995] 2 S.C.R. 206; R. v. Krause, [1986] 2 S.C.R. 466; R. v. Drake (1970), 1 C.C.C. (2d) 396; R. v. Levy (1966), 50 Cr. App. R. 198.
Statutes and Regulations Cited
American Bill of Rights.
Canadian Charter of Rights and Freedoms, ss. 10(b), 13, 24(2).
Police Services Act, R.S.O. 1990, c. P.15.
APPEAL from a judgment of the Ontario Court of Appeal (1994), 19 O.R. (3d) 643, 92 C.C.C. (3d) 97, 32 C.R. (4th) 197, 23 C.R.R. (2d) 94, 74 O.A.C. 1, dismissing the Crown's appeal from the accused's acquittal on charges of attempting to purchase the sexual services of a person under 18 years of age, extortion, and breach of trust. Appeal dismissed, McLachlin J. dissenting.
Ian R. Smith, for the appellant.
Edward L. Greenspan, Q.C., and Alison Wheeler, for the respondent.
The following are the reasons delivered by
1 La Forest J. -- I am in general agreement with Justice Sopinka except that I find it difficult to imagine any special circumstances to which he refers in para. 35 that would warrant departure from the approach he sets forth.
The judgment of Sopinka, Gonthier, Cory, Iacobucci and Major JJ. was delivered by
2 Sopinka J. -- This appeal involves the question whether the proposed purpose for the use of evidence has any bearing on its admissibility pursuant to s. 24(2) of the Canadian Charter of Rights and Freedoms. In this case, a statement was obtained from the respondent in violation of his right to counsel, and was excluded from the Crown's case in chief. The Crown later sought to have the statement admitted for the purpose of impeaching the testimony of the respondent at trial.
I. The Facts
3 Murray Calder, a police officer, was charged with attempting to purchase the sexual services of a person under 18 years of age, extortion, and breach of trust. All of the charges arose out of a single incident involving Calder and Shelley Desrochers, a 17-year-old prostitute.
4 Prior to being charged, Calder was interviewed by two investigating officers. He was cautioned as follows:
. . . we are investigating alleged sexual misconduct which could result in criminal charges or charges under the Police Act. You do not have to say anything unless you wish to do so, but whatever you do say may be given in evidence at the criminal trial or a trial under charges under the Police Act. Do you understand?
Calder answered that he did understand. He was then told that the complaint came from Shelley Desrochers, and he asked: "What's with the caution?" No answer was given, and Calder asked again: "Why the caution?" At this point, the investigating officer read the section of the Criminal Code dealing with procuring the sexual services of a person under 18. There was no further explanation given for the caution. The trial judge held that s. 10(b) of the Charter had been breached by the investigating officers.
5 During the course of the interview, Calder denied having gone to the corner of Queen and Bathurst the previous night at the time allegedly appointed for a meeting with Desrochers. This statement was untrue, as was demonstrated by the evidence of an independent witness as well as that of the complainant, and of the respondent at trial. The Crown wished to use Calder's statement as substantive evidence of consciousness of guilt. The trial judge excluded the statement pursuant to s. 24(2) of the Charter.
6 Calder's testimony in chief contradicted his earlier statement to the police respecting his whereabouts on the night in question. The trial judge refused to permit the Crown to use the previously excluded statement to impeach credibility during cross-examination. The Crown used other evidence to attempt to impeach credibility: Calder's notes, the police car computer records and police records from the night in question.
7 A jury acquitted Calder of all charges. The Crown appealed to the Ontario Court of Appeal, submitting that the trial judge erred in excluding the evidence from the case for the Crown, and alternatively, that if the statement was properly excluded initially, the Crown should have been permitted to use the statement for impeachment purposes during cross-examination of the respondent. The Crown's appeal was dismissed, Doherty J.A. dissenting: (1994), 19 O.R. (3d) 643, 92 C.C.C. (3d) 97, 32 C.R. (4th) 197, 23 C.R.R. (2d) 94, 74 O.A.C. 1. The appeal is before this Court as an appeal as of right.
II. Relevant Legislative Provisions
Sections 10(b), 13 and 24(2) of the Canadian Charter of Rights and Freedoms:
10. Everyone has the right on arrest or detention
. . .
(b) to retain and instruct counsel without delay and to be informed of that right;
13. A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury of for the giving of contradictory evidence.
24. . . .
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
III. Decisions Below
Ontario Court (General Division) (Ferguson J.)
(i) Ruling on voir dire
8 The trial judge held, in his ruling on voir dire, that the direction given to the appellant by the police dispatcher to attend at the police station was, in fact, an order. Further, he held that the interrogation was not a mere disciplinary proceeding under the Police Services Act, R.S.O. 1990, c. P.15. The trial judge observed that the respondent was cautioned, was interrogated by two senior officers and was not left on his own from the time he arrived until his suspension. The trial judge accepted the respondent's perception that he was obliged to attend and to answer questions. The trial judge held that the respondent had been detained, and that he should have been advised of his Charter rights. The failure to so advise the respondent was a breach of his rights under the Charter. Further, the trial judge held that the admission of the statement obtained would bring the administration of justice into disrepute. Thus, the statement was held to be inadmissible pursuant to s. 24(2) of the Charter.
(ii) Ruling on Use of Statement for Impeachment
9 The trial judge held that to accede to the Crown's request to use the statement for a new purpose, after having ruled that the admission of the evidence would bring the administration of justice into disrepute, would be grossly unfair to the accused. He stated that the circumstances of the case at bar were entirely different than the case in R. v. Kuldip, [1990] 3 S.C.R. 618.
Ontario Court of Appeal (1994), 19 O.R. (3d) 643
Labrosse J.A.
10 Labrosse J.A. agreed with Doherty J.A. concerning the trial judge's finding that the respondent had been detained, and that the statement should have been excluded. He did not agree, however, that the trial judge should have permitted the Crown to use the respondent's statement during cross-examination to impeach his credibility.
11 Labrosse J.A. first stated his view that the American authorities cited by the Crown were not particularly helpful in carrying out the analysis required under s. 24(2) of the Charter, as the American system is different in so many aspects of principle and philosophy from the Canadian system. He then explained why he did not consider the decision in Kuldip, supra, to be applicable to the case at bar. In the course of distinguishing Kuldip, he stated that the principles and policies underlying that decision are not helpful in deciding the issue in this appeal due to the unique circumstances in which s. 13 of the Charter applies. In this regard, Labrosse J.A. quoted from Lamer C.J.'s reasons in R. v. B. (K.G.), [1993] 1 S.C.R. 740, and stated that "[t]he Chief Justice cautioned that s. 13 applies to a unique set of circumstances" (p. 669).
12 Labrosse J.A. went on to consider the factors in R. v. Collins, [1987] 1 S.C.R. 265, and concluded that on the basis of those factors the statement was inadmissible.
13 Finally, Labrosse J.A. agreed with the assertion of counsel for the respondent that the Crown had failed to demonstrate that the verdict would not necessarily have been the same had the statement been admitted.
McKinlay J.A.
14 McKinlay J.A. wrote a separate judgment concurring with Labrosse J.A.'s disposition of the appeal. She expressed agreement with Doherty J.A.'s holding "that in appropriate circumstances, as carefully outlined in [Doherty J.A.'s] reasons, prior inconsistent statements of an accused could be admissible in cross-examination for the sole purpose of attacking his credibility" (p. 676). McKinlay J.A. shared Labrosse J.A.'s view, however, concerning the gravity of the s. 10(b) Charter violation in this case, and expressed her agreement with Labrosse J.A.'s analysis of the facts leading to his conclusion that the Crown had not established that the verdict "would not necessarily have been the same had the statement been admitted for the limited purpose of testing credibility" (p. 676).
Doherty J.A. (dissenting)
15 Doherty J.A. agreed that the trial judge had been correct to exclude the statement from the Crown's case under s. 24(2). He noted that, "given the breach of s. 10(b) found by the trial judge, the exclusion of the evidence is entirely consistent with the controlling jurisprudence" (p. 654).
16 It was his opinion, however, that Ferguson J. had erred in not permitting the Crown to use the statement solely to impeach the accused in cross-examination. Doherty J.A. stated, inter alia, that the language of s. 24(2) and the principles guiding its interpretation compel the conclusion that "evidence ruled inadmissible at one stage in a trial may be admitted at another point in the same trial if the circumstances have changed so as to alter the effect [of admission of the evidence] on the administration of justice" (p. 658).
17 Doherty J.A. reasoned that the exclusionary power granted by s. 24(2) revolved around an inquiry into the effect of admitting the impugned evidence on the fairness of the trial and that "[t]hat inquiry rests on the premise that the impugned evidence is being used to incriminate the accused" (p. 661). The determination of voluntariness is made with reference to the circumstances surrounding the taking of the statement. Nothing that occurs during the course of the trial can alter those circumstances or affect the voluntariness of the statement. In contrast, the circumstances relevant to the s. 24(2) inquiry are more dynamic; admissibility is not determined solely by reference to past events or circumstances. The impact of the admission of the evidence on the repute of the administration of justice is what is of concern. The relevant circumstances may therefore occur at any time before the evidence is tendered, including after the commencement of the trial. Both the language of s. 24(2) and this Court's approach to that language contemplate that there will be cases where events occurring during the course of the trial will be relevant to the s. 24(2) inquiry.
18 Referring to Kuldip, Doherty J.A. stated that a statement used only to impeach credibility is not used to incriminate the accused and as such does not negatively impact upon the fairness of the trial in the same manner as would a statement used for the purpose of incrimination. Applying the factors relevant to s. 24(2), he found that use of the statement for the purpose of cross‑examination would not bring the administration of justice into disrepute.
IV. Analysis
19 The submission of the Crown which accords with the dissenting reasons of Doherty J.A. is that tender of the respondent's out-of-court statement for the purpose of cross‑examination constituted a change of circumstances justifying a reconsideration of the trial judge's earlier ruling that admission of the evidence would bring the administration of justice into disrepute. The Crown submits that in light of the changed circumstances the trial judge should have held a further voir dire to reconsider the application of s. 24(2) of the Charter having regard to the change in the proposed use of the evidence. The Crown does not appeal from the decision of the trial judge which excluded the evidence when it was tendered during the Crown's case. In his dissent, Doherty J.A. agreed that the trial judge had been correct in respect of this ruling which was properly based on the factors in Collins, supra, and concluded that the admission of the evidence would bring the administration of justice into disrepute. No leave having been granted on this point, no issue can be taken with that ruling here.
20 Much reliance was placed on the decision of this Court in Kuldip, supra. That decision, however, is not of immediate assistance to the Crown. Kuldip decided that the accused could be cross-examined on a statement made by him at a previous trial notwithstanding s. 13 of the Charter and s. 5(2) of the Canada Evidence Act. At bottom, the ratio of that decision is that the provisions referred to are to be interpreted as prohibiting use of prior inconsistent statements for the purposes of incrimination but not for the purpose of challenging credibility. Kuldip did not involve any previous determination that the statement was inadmissible. All that stood in the way of the Crown's use of the statement was the wording of ss. 13 and 5(2), which prohibited use of the statements for the purpose of incrimination. When that prohibition was interpreted to permit cross-examination on the statement for the purpose of challenging credibility, the Crown was free to use the statement accordingly. Here, we have a determination by the trial judge that admission of the evidence would bring the administration of justice into disrepute. The evidence was therefore rejected. The Crown properly conceded that use of the evidence for the limited purpose of cross-examination as to credibility was an "admission" of the evidence. The Crown must therefore establish a change of circumstances by reason of the proposed limited use of the evidence such that the decision to exclude the evidence should be varied. In this regard, the distinction made in Kuldip between the use of evidence for the purpose of incrimination and for the purpose of cross-examination as to credibility will have some relevance.
21 In R. v. Adams, [1995] 4 S.C.R. 707, a recent decision of this Court, we set out the circumstances under which an order made at trial can be varied or revoked. At p. 722, in unanimous reasons for the Court, we stated:
As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the time the order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of the order in the first place.
Earlier, at p. 722, we stated:
For instance, if the order is a discretionary order pursuant to a common law rule, the precondition to its variation or revocation will be less formal. On the other hand, an order made under the authority of statute will attract more stringent conditions before it can be varied or revoked.
22 The order here was made under the authority of a constitutional provision. The condition for its reconsideration must be at least as stringent as those that obtain with respect to an order made under the authority of a statute.
23 The circumstances relied on by the Crown to justify a change of circumstances in this case were: (a) the fact that the accused testified at variance with his previous statement; and (b) the proposed limited use of the evidence. With respect to (a) I have difficulty accepting that when the Crown is in possession of a previous statement it does not foresee that the accused may testify in a manner that contradicts the statement. The Crown sought the introduction of the statement because it was in a position to prove from its own witnesses that it was false. In light of this, it would not have escaped the Crown that the accused would likely testify and that his testimony could contradict the statement. With respect to (b), tender of an admission as evidence generally constitutes tender of it for all purposes unless it is tendered for a limited purpose. In this case, there was no indication that the admission was to be used only as part of the Crown's case in chief and not for the purpose of cross-examination. Indeed, if the statement had been admitted, can there be any doubt that it would have been used for both purposes? Accordingly, the proposed use was one of the two uses for which the evidence had been tendered and excluded. It was submitted, however, that the Crown's proposal that the evidence be admitted solely for the purpose of cross-examination was a change of circumstances which warranted reopening the issue. Whereas the tender of the evidence during the Crown's case was with a view to its admission generally, the more limited proposed use of the evidence was a circumstance that was not present when the evidence was originally excluded. The Crown argues, and the argument found favour with Doherty J.A., that the change in the proposed use could have a significant effect on the balancing of the relevant factors in the application of s. 24(2) of the Charter.
24 The distinction between admitting evidence generally for all purposes, including incrimination and credibility, on the one hand, and admitting evidence solely for the purposes of impeaching credibility on the other, is one that is well entrenched in the law of evidence. It has existed for years. The distinction is frequently made in connection with the use of prior inconsistent statements. See Deacon v. The King, [1947] S.C.R. 531, and McInroy v. The Queen, [1979] 1 S.C.R. 588. Most recently the distinction was made in Kuldip and R. v. Crawford, [1995] 1 S.C.R. 858. This distinction has, however, been eroded in certain limited circumstances by recent decisions of this Court. See B. (K.G.), supra, and R. v. U. (F.J.), [1995] 3 S.C.R. 764.
25 The distinction draws a fine line. When a statement is admitted, generally it is available as positive evidence of innocence or guilt. The statement is evidence of the truth of its contents which may be incriminating. Moreover, the mere fact that a false exculpatory statement was made may be evidence of consciousness of guilt. On the other hand, a statement whose use is limited to a challenge of credibility can serve only to impeach the testimony of the witness. The most that can be achieved is the nullification of the witness's evidence. No matter how complete the impeachment, it does not constitute proof upon which the Crown can rely to establish its case beyond a reasonable doubt, although it may result in non-acceptance of a defence set up by the accused.
26 Is the distinction between use of a statement for all purposes rather than for the limited purpose of impeaching credibility a valid one in the application of s. 24(2)? The respondent draws an analogy with the practice relating to confessions. An involuntary confession could not be used for any purpose. As stated by Fauteux J. in Monette v. The Queen, [1956] S.C.R. 400, at p. 402:
As stated by Humphreys J. delivering the judgment of the Court of Appeal in England, in Rex v. Treacy (1934), 60 T.L.R. 544 at 545, a statement made by a prisoner under arrest is either admissible or not; if it is admissible, the proper course for the prosecution is to prove it, and, if it is not admissible, nothing more ought to be heard of it; and it is wrong to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a person in cross-examination.
The authority of this case has not been questioned. Moreover, it is acknowledged by the appellant that involuntary statements may not be used by the Crown for any purpose. However, the appellant seeks to distinguish the factual context of this case from that situation by stating that the reason for the exclusion of involuntary statements is their inherent unreliability. Doherty J.A., in the Ontario Court of Appeal, distinguished the voluntariness inquiry from that under s. 24(2), stating (at p. 659):
Voluntariness is determined by reference to the circumstances surrounding the taking of the statement. Those circumstances are static and determinable at the outset of the trial. Nothing done in the context of the trial can alter those circumstances or otherwise affect the voluntariness of the statement. Similarly, the voluntariness of the statement cannot be affected by the purpose for which the Crown proposes to use that statement.
27 In light of the recent jurisprudence of this Court, it is evident that while the rule against admission of involuntary statements was initially based primarily on reliability concerns, the law has evolved considerably since that time. In R. v. Whittle, [1994] 2 S.C.R. 914, this Court held, at p. 932, that:
Although the confession rule in its traditional formulation had as its raison d'être the reliability of the confession, a strong undercurrent developed which also supported the rule in part on fairness in the criminal process.
28 It is, therefore, not strictly accurate to distinguish the practices relating to confessions on the basis either that reliability was the sole touchstone of their admissibility or that the circumstances relating to admissibility remained static irrespective of the proposed use. The distinction to which I have referred between use for general purposes and use limited to impeachment is one that was recognized by this Court before Monette was decided. See Deacon, supra. If it is correct to suggest, as does the appellant, that use for the limited purpose of cross-examination has an effect on fairness that favours admissibility, presumably the same consideration would apply to some extent to confessions.
29 The analogy to the confession rule, although of assistance, is not precise. The focus of s. 24(2) is somewhat different, the whole of the emphasis being on the effect on the repute of the administration of justice. The impact of admission of the evidence on the fairness of the trial plays a more significant role than in the case of the confession rule. I would not be prepared to rest my decision on this issue by reference to the practice relating to confessions.
30 The few Canadian cases that have dealt with this issue show little consistency in analysis or result; R. v. Edwards (1986), 31 C.R.R. 343 (Ont. H.C.): previously excluded evidence was ruled inadmissible for impeachment purposes; R. v. Rousseau (1990), 54 C.C.C. (3d) 378 (Ont. Dist. Ct.): evidence ruled inadmissible during trial was found to be equally inadmissible during the sentencing phase of the proceedings. In R. v. Armstrong, [1993] O.J. No. 2703 (Ont. Ct. (Gen. Div.)), it was held that statements excluded from the case for the Crown could possibly be admitted for impeachment purposes should the accused testify at trial.
31 The appellant seeks to rely on American jurisprudence concerning the exclusion of illegally obtained evidence. In my view, the American authorities are entirely distinguishable from this case. First, the American exclusionary rule is judge-made. There is no equivalent in the American Bill of Rights to our s. 24(2). More importantly, the American rule is one of automatic exclusion. Upon a finding that evidence has been obtained in violation of an accused's right to counsel, the evidence is inadmissible for use in the prosecution's case in chief. This is extremely significant as a distinguishing factor, in that the statement or other evidence has been excluded absent a determination that its admission would bring the administration of justice into disrepute. Exclusion may occur even though the breach of the Bill of Rights is not serious and, therefore, as a trade-off, use of the evidence is permitted in cross-examination.
32 As I have stated, the appellant relies, principally, on the distinction made in Kuldip to the effect that a statement in a previous trial, while not admissible generally, is admissible for the purpose of impeachment. That decision turned primarily on the interpretation of s. 5(2) of the Canada Evidence Act and s. 13 of the Charter. In concluding that use for the purposes of impeachment did not constitute use for the purpose of incrimination, this Court did not need to address what effect such use would have on the repute of the administration of justice. Indeed, as pointed out by Labrosse J.A. in the Court of Appeal, in B. (K.G.), supra, Lamer C.J., who wrote the reasons in Kuldip, stressed that s. 13 applies to a unique set of circumstances. Moreover, in Kuldip, Lamer C.J. acknowledges the concern that a jury would have difficulty in applying the distinction but concluded that, with the benefit of a very careful instruction from the trial judge, this difficulty could be overcome. I came to the same conclusion in Crawford, supra, at pp. 883-84.
33 The preoccupation of s. 24(2) is with respect to the effect that admission of the evidence will have on the repute of the administration of justice. In Collins, supra, this Court laid down three groups of factors that must be considered:
(1)factors relating to the effect of admission on the fairness of the trial;
(2)factors relating to the seriousness of the Charter violation;
(3)factors relating to the effect of exclusion on the reputation of the administration of justice.
More recently, the application of these factors was considered by this Court in R. v. Burlingham, [1995] 2 S.C.R. 206. The admission of statements obtained from the accused on breach of the Charter generally turns on the effect of the first group of factors. Such evidence is generally held to affect the fairness of the trial. See Collins, at pp. 284-85, and Burlingham, at p. 289.
34 The effect on the repute of the administration of justice is to be assessed by reference to the standard of the reasonable, well-informed citizen who represents community values. The effect of destroying the credibility of an accused who takes the stand in his or her defence using evidence obtained from the mouth of the accused in breach of his or her Charter rights will usually have the same effect as use of the same evidence when adduced by the Crown in its case in chief for the purpose of incrimination. The fact that a jury carefully instructed can apply the distinction does not mean that use for the purpose of impeachment will, in the eyes of the jury, have a less detrimental effect on the case of the accused. Moreover, in determining admissibility under s. 24(2), it is not the carefully instructed juror who is the arbiter of the effect on the administration of justice but rather the well-informed member of the community. This mythical person does not have the benefit of a careful instruction from the trial judge on the distinction. Not only will that person not tend to understand the distinction in theory, but, in any event, will regard the distinction as immaterial in assessing the effect on the repute of the administration of justice. If use of the statement is seen to be unfair by reason of having been obtained in breach of an accused's Charter rights, it is not likely to be seen to be less unfair because it was only used to destroy credibility.
35 In view of the foregoing, I conclude that it will only be in very limited circumstances that a change in use as proposed in this case will qualify as a material change of circumstances that would warrant reopening the issue once evidence has been excluded under s. 24(2). I would not, however, entirely rule out the possibility in some very special circumstances. To the extent that the Crown considers in a given case that restricting use of a statement to cross-examination will lighten its task in getting the statement admitted for this purpose under s. 24(2), it can seek a ruling to this effect either during its case or before cross-examining the accused. In either case, a voir dire will be necessary in which the trial judge will consider the admissibility of the statement for the limited purpose for which the Crown intends to use the statement. See R. v. Krause, [1986] 2 S.C.R. 466; R. v. Drake (1970), 1 C.C.C. (2d) 396 (Sask. Q.B.); R. v. Levy (1966), 50 Cr. App. R. 198 (C.C.A.).
Application to this Case
36 As previously observed, the admission of the impugned statement was rejected by the trial judge when it was tendered during the Crown's case in chief. The trial judge found that its admission would bring the administration of justice into disrepute. This finding was confirmed by the Court of Appeal and is not challenged by the appellant. In rejecting the Crown's application to cross-examine on the statement, the trial judge found that this would be "grossly unfair".
37 The evidence at trial developed into a contest of credibility between the complainant and the respondent. In acquitting the respondent, the jury no doubt considered that the evidence of the respondent was sufficiently credible at least to raise a reasonable doubt. In view of the potential effect on the credibility of the respondent and the findings of the trial judge, I conclude that the proposed use of the statement for impeachment of credibility was not a material change of circumstances which warranted a reconsideration of the finding that the admission of the statement would bring the administration of justice into disrepute.
38 Accordingly, the appeal is dismissed.
The following are the reasons delivered by
39 McLachlin J. (dissenting) -- The accused Calder, a police officer, made statements to fellow investigating officers denying that he had attempted to purchase the sexual services of the juvenile complainant, and specifically denying that he had been at the location where the transaction allegedly occurred. He was subsequently charged with that offence as well as extortion and breach of trust. At trial, the Crown tendered the statements as evidence against Calder on the basis that they were untrue and hence provided evidence of consciousness of guilt, since the testimony of other witnesses would confirm that he had in fact been present at that location at the indicated time. The trial judge ruled that they were inadmissible because the investigating officers had not advised Calder of his right to counsel as required by s. 10(b) of the Canadian Charter of Rights and Freedoms.
40 At the close of the Crown's case, the accused took the stand in his defence. He testified to a version of events which was significantly different from that given in his earlier statement. He now admitted that he went to the location as agreed with the complainant, but offered an exculpatory rationale to explain his presence. The Crown asked to cross-examine him on the basis of the statement previously excluded for the limited purpose of impeaching his credibility. The trial judge denied the request, and the jury acquitted Calder on all charges. The issue on this appeal is whether the trial judge erred in refusing to permit the Crown to use Calder's earlier contradictory statement to impeach his credibility on cross-examination.
41 The principal argument in support of the trial judge's ruling is that once a piece of evidence has been ruled inadmissible for one purpose, it cannot be ruled admissible for another. My colleague Justice Sopinka rightly rejects this argument. Section 24(2) of the Charter imposes no such restriction, as Doherty J.A., dissenting below ((1994), 19 O.R. (3d) 643), ably demonstrated. Section 24(2) simply requires the judge to decide whether "having regard to all the circumstances" admission of the evidence would bring the administration of justice into disrepute. The purpose for which the evidence is tendered must surely be a circumstance to be considered. It follows that s. 24(2) may permit evidence which has been excluded for one purpose to be admitted for another purpose.
42 My colleague, having concluded that evidence rejected when tendered for one purpose may be admitted later in the trial for a different purpose, goes on to state that this can occur only in "very limited circumstances" (para. 35). This cannot be taken as a legal test, since s. 24(2) explicitly requires the court to consider "all the circumstances", not limited circumstances. The only question is whether admission of the statement in "all the circumstances" would bring the administration of justice into disrepute. If the answer to that question is yes, then the statement must be excluded. The addition of a requirement of "very limited circumstances" would contradict the plain words of the section.
43 Read as a predictive observation, my colleague's reference to "very limited circumstances" poses less difficulty, although I would argue against exaggerating the limited nature of the circumstances in which a statement rejected for one purpose may be admitted for another under s. 24(2). Sopinka J. correctly points out that evidence which will bring the administration of justice into disrepute when tendered as evidence of what happened will often have the same effect when tendered on the issue of credibility. However, the opposite may occur. When the Crown tenders a witness's statement as substantive evidence of what happened, different considerations may arise than when the same statement is used to test the maker's credibility in cross-examination.
44 Two fundamental concerns which underlie the criminal process -- getting at the truth and protecting the accused's right to a fair trial -- may play out differently in the two situations.
45 The concern for getting at the truth may weigh against admitting a statement tendered as substantive evidence where there is fear that the Charter violation may have rendered it unreliable. The same concern for getting at the truth may weigh in favour of using the same statement in cross-examination to test the accused's credibility and uncover any inaccuracies or fabrications in his evidence in chief. From the perspective of the individual case, it is important to permit the jury to fairly judge the truthfulness of the witness. From the perspective of the trial process as a whole, it is equally important not to permit witnesses to take the stand and fabricate lies free from the fear that they may be cross-examined on earlier contradictory statements.
46 The same applies to the interest of protecting the accused's right to a fair trial. It may be seen as unfair to tender against an accused as substantive evidence a statement which the state obtained from him in violation of his Charter rights. However, where the accused chooses to take the stand and place his credibility in issue, vouching to the jury that what he is telling them is the whole truth and nothing but the truth, it is more difficult to say that it is unfair to permit the Crown to cross-examine him on his prior inconsistent statement and to put to him the vital question of which version is true. These are important considerations which must be weighed against any unfairness arising from the way the statement was taken, if the judge is to properly determine whether admission of the statement would bring the administration of justice into disrepute.
47 The trial judge in the case at bar appears to have based his decision against permitting the statement to be used in cross-examination largely on the fact that he had earlier ruled the evidence to be inadmissible, although he alluded to fairness to the accused and the fact that to prevent the Crown from cross-examining Calder on his previous statement might result in evidence "that was not a true statement". While it is difficult to be sure of what the trial judge's precise reasoning was, I think it is fair to say, as did Doherty J.A. below, that "[t]he trial judge erred in law in holding that he could not reassess the admissibility of Calder's statement when it was offered for impeachment purposes during Calder's cross-examination" (p. 667). I also agree with Doherty J.A. that the record does not permit one to say with certainty that the statement should not have been admitted for cross-examination purposes and that had the statement been admitted, it could have changed the course of the trial. In these circumstances, Doherty J.A. correctly concluded that the Crown had met the heavy onus of demonstrating with a reasonable degree of certainty that the verdict would not necessarily have been the same had the error in law not been made.
48 I would allow the appeal, quash the acquittal and direct a new trial.
Appeal dismissed, McLachlin J. dissenting.
Solicitor for the appellant: The Ministry of the Attorney General, Toronto.
Solicitors for the respondent: Greenspan, Rosenberg & Buhr, Toronto.