Law Times

PAGE 2 NEWS augusT 9, 2010 • Law Times fi nally achieved what he's been seeking for 18 years: a ruling wid- ening the allowance of an accused person's exculpatory statements upon or shortly after arrest. "I took it on with Guy Paul Lockyer hails breakthrough on arrest statements W BY RON STANG For Law Times INDSOR, Ont. — Toronto lawyer James Lockyer says he's murder, after which the court found him guilty of manslaugh- ter. His latest appeal centred largely on his argument that three statements he gave police around the time of his arrest should have been admitted in their entirety. In the second trial, only edited ver- sions were allowed. None were allowed in the fi rst trial. In writing the decision, Jus- Morin's appeal back in 1992," he says. "And then it never got dealt with because the DNA re- sults resolved the appeal in one fell swoop." Lockyer notes the issue came up again at the inquiry into Morin's wrongful conviction, during which Fred Kaufman, commissioner for the proceed- ings, "gave a strong recommen- dation in favour of allowing" exculpatory statements. But according to Lockyer, this was "to no avail," with many subsequent judgments "that re- ally didn't sort the issue out." As a result, he believes the Court of Appeal decision late last month in R. v. Edgar represents a "tre- mendous step for the law." Th e decision came as part of the court's rejection of Den- nis James Edgar's appeal of his manslaughter conviction and status as a dangerous off ender fol- lowing the stabbing death of his girlfriend, Tracey Kelsh, in 1994. Edgar successfully appealed his fi rst conviction for second-degree tice Robert Sharpe referenced Kaufman, who said there were "compelling policy consider- ations" for a rethink of the exclu- sionary rule and that, "if the jury had heard [Morin's] repeated and emphatic protestations of in- nocence throughout a long and tiring interrogation, it may have made the diff erence between conviction and acquittal." Kaufman said leaving out these statements could result in juries drawing a negative conclu- sion from the absence of evidence about what the accused said at ar- rest and that they could be used to rebut the suggestion or infer- ence that someone may tailor the evidence from pretrial disclosure. At the same time, according to Sharpe, admitting such state- ments "would encourage counsel to be more receptive to clients making statements upon arrest." In an interview, Lockyer notes the practical applications for counsel. "It's something that I would say a daily practitioner, who is doing sort of regular tri- al work, will be able to take the 'If there's really a presumption of innocence, you should pre- sume that what he's saying is true,' says James lockyer. benefi t of this case repeatedly. Until now, you would call your client and you wouldn't be able to say, 'Did you tell this to the police?' You're not allowed to ask him that. Now you can. Before you couldn't." With some exceptions, ex- culpatory or prior consistent statements have been treated as hearsay and not allowed in court even though they have permit- ted inculpatory statements. Th e reasons against them have in- cluded the risk of fabrication or simply the fact that they can be viewed as self-serving. But Lockyer argued in Edgar that the rule isn't consistent with the modern law of evidence. Th e court agreed, noting that hearsay, for instance, "has been entirely recast in light of the principled approach, which now focuses upon necessity and reli- ability." As well, English case law has shown that such statements indeed have probative value. While Sharpe found this convincing, he noted that "the statement of the accused is not strictly evidence of the truth of what was said . . . but is evidence of the reaction of the accused, which is relevant to the credibil- ity of the accused and as circum- stantial evidence that may have a bearing on guilt or innocence." Th erefore, "the various ra- tionales off ered for exclusion simply do not warrant the im- position of a blanket exclusion- ary rule," he wrote. Nevertheless, he stipulated that the accused must submit to cross-examination. In Lockyer's view, excluding such statements had presumed the accused is guilty, which fl ies in the face of Canadian princi- ples of justice. "If there's really a presumption of innocence, you should presume that what he's saying is true," he says. Sharpe, however, said the appeal court wasn't the right venue "to reassess the broad issue" of prior consistent state- ments. But, he ruled, it could consider "the more specifi c is- sue" of such statements "im- mediately upon arrest or when fi rst confronted with an accu- sation by the police." For Lockyer, the ruling is signifi cant. "Th e decision is, I believe, an important step to- wards the admission of an ac- cused's exculpatory statement in all cases in which he or she testi- fi es in his or her own defence." Previously, he says, allow- ing exculpatory statements was "very rare," which makes the court's decision "a very signifi - cant change in the law." Paul Burstein, president of the Criminal Lawyers' Association, also calls the decision "a signifi - cant advance and one that was long overdue," especially since it refl ects "the same kind of balanc- ing that the courts have insisted [is] necessary in the modern world for considering any other hearsay evidence." At the same time, while law professor Lee Stuesser says the case is "consistent with greater fl ex- ibility," he cautions that it doesn't mean "anything goes" since the accused will still have to testify. "Th e greater the spontaneity of any statement, the greater the relevancy," he says. "Th e more deliberate the statement, the less the relevancy." In addition, he says Edgar "does not mean that an accused can carefully dictate an exculpa- tory statement and expect it to be admitted into evidence. A fundamental reality is that those confronted with criminal wrongdoing often deny, deny, and deny. Repetition hardly is a measure of truth." LT Accurate • Reliable • Up-to-date Your source of essential legal contact information from Canada Law Book's renowned directories group. Find the names and numbers you need in the Atlantic provinces – and in Alberta, Northwest Territories, Yukon and Nunavut. Includes e-mail addresses! Connect to Canada's legal network! Get your Atlantic and Alberta Legal Telephone Directories for 2010-2011 Order your copies today at: canadalawbook.ca • For a 30-day, no-risk evaluation call: 1.800.565.6967 Canada Law Book is a Division of The Cartwright Group Ltd. MERGING TRADITION WITH TECHNOLOGY www.lawtimesnews.com combo Direct ad for Lawtimes.indd 1 7/7/10 4:24:20 PM

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