ARCTIC OBITER

14 | ARCTIC OBITER
CONCEPT OF A FAIR TRIAL
ON SEPTEMBER 11, YELLOWKNIFE WAS TREATED TO A VISIT BY THE HON. JUSTICE IAN BINNIE. INVITED BY THE
PRESIDENT OF THE LAW SOCIETY AND THE PRESIDENT OF THE LOCAL BRANCH OF THE CBA, HE GRACIOUSLY
ACTED AS GUEST SPEAKER - NOT ONLY FOR THE 4TH ANNUAL PRESIDENTS’ DINNER, BUT FOR A VERY SPECIAL
LUNCH & LEARN.
PART 3 CONCLUDES HIS TALK AT THE EXPLORER HOTEL, “THE CONCEPT OF A FAIR TRIAL”.
Part 3: Evidence & the Unrepresented
by Mr. Justice Ian Binnie, Supreme Court of Canada
UNRELIABLE EVIDENCE
The last twenty years have witnessed what is often called a
revolution in the law of evidence. Rigid rules of
inadmissibility have given way to principles. Two
prominent examples are the law of hearsay and the law of
similar fact evidence. Both kinds of evidence used to be
subject to strict rules of exclusion. Now both may be
admitted subject to inquiries into necessity and reliability, in
the case of hearsay, or prejudicial effect and probative value,
in the case of similar fact evidence.
One important consideration in reforming the law of
evidence has been fairness. Fairness to the accused has
generally meant preserving as far as possible the accused’s
legitimate opportunity to challenge the evidence against
him. It has also meant the inherent trustworthiness or
reliability of the evidence, or its propensity to deceive the
jury. It is important to realize that these two values inform
one another: hearsay is called ‚unreliable‛ precisely because
the accused does not have a chance to challenge it in crossexamination.
“UNRELIABLE” EVIDENCE
Just as Crown prosecutors have a duty to screen charges in
an impartial manner, they also have a duty to perform some
‚screening‛ of evidence. Counsel should be especially
careful about evidence which historically juries have had a
hard time analysing critically. This category includes
eyewitness identifications, which are usually sincere and
persuasive but often inaccurate. It also includes statements
by the accused made under some kind of pressure, where
the circumstances do not trigger the common law
confessions rule or violate the ‚right to silence‛. (e.g. a
statement made to an undercover officer without
‚elicitation‛.)
Crown counsel confronted with this kind of evidence may be
tempted to introduce it. There may be an arguable case that
the statement was voluntary - either in the common law
sense, or in the sense that it was made without elicitation as
s.7 requires. The somewhat open-textured tests involved
make the outcome of litigation hard to predict, and thus the
Crown may be tempted to litigate the admissibility of the
evidence.
Such a temptation led in part to the wrongful conviction of
Guy Paul Morin. Two jail house informers testified to
several statements allegedly made by Mr. Morin. However,
the first informer was a pathological liar with a lengthy
record of crimes of dishonesty, and the second was a
sociopath who suffered from delusions and had a lengthy
record of sexual crimes against young children.
The Kaufman commission into Morin’s wrongful conviction
concluded that the prosecutors did not ‚objectively assess
the reliability of [the] informers‛, and that they
‚concentrated on denigrating and minimizing‛ the evidence
showing their propensity to lie. They portrayed the
informers as truthful on the critical issue of Morin’s alleged
confessions, a view, no doubt, coloured by their belief in his
guilt.
The Kaufman commission noted that ‚no existing law or
ethical standards prevented the prosecutors from calling
even suspect evidence, so long as they did not know that the
evidence was perjured.‛
The Crown policy manual in Toronto was amended in the