Legal Illustrations 6: Police Trickery, Use of the Body, Re-enactments

These are the last illustrations I will draw in law school lectures. There were few illustrations from me this semester because:

1. I only took one lecture-format class based on case law; and
2. That class was The Law of Evidence and almost all the cases involved sex assaults and that's just not a direction I want to take with my art.

Confessions

The leading case on the admissibility of confessions is R. v. Oickle. Oickle confessed to setting a bunch of fires, so I used a clip-art picture of a lit match in my first-year Crim summary. But this year I decided to pick up on a quote about "police trickery" from Former Chief Justice Lamer that Justice Iaccobucci adopts.

In general, a voluntary confession obtained through police trickery is admissible unless the police engage in conduct "that shocks the community." What tricks would shock the community? Examples include: "a police officer pretending to be a chaplain or a legal aid lawyer, or injecting truth serum into a diabetic under the pretense that it was insulin."

Admissibility of Unconstitutional Evidence

Under paragraph 24(2) of the Canadian Charter of Rights and Freedoms evidence that is obtained in violation of the Charter is not admissible in court if the admission "would bring the administration of justice into disrepute." The 3-part test for this is set out in R. v. Stillman ("You know it's a good test when it has three parts", Nicholas McHaffie). The first part of the test is "would the admission of the evidence make the trial unfair?" It will be unfair if the evidence was "conscriptive" and could not have been obtained without the Charter violation. Examples of conscriptive evidence are compelled statements, compelled body samples, evidence discovered through "use of the body", or evidence discovered through the use of one of those.

"Use of the body"? What does that mean? Suppose you're investigating a murder and you come to your suspect Michael Feeney in his trailer and you say, "hey, Feeney, step into the light." Then when he does, you see his shirt is covered in blood, you arrest him, the blood matches the victim, he's convicted. Does the fact that you told Feeney to step into the light count as "use of the body"? No. R. v. Feeney But if you made Feeney put a shirt on to see if it fit him and then had him re-enact the crime, that would be pushing it.

Prejudicial Evidence

Speaking of re-enactments, suppose you're prosecuting some guys for driving into some cops in a "drug bust gone bad" and you video-tape a re-enactment in which you use bigger cars than the guys drove, you have them move at faster speeds, and you take other liberties to make your video exciting. Will you be able to show it to a jury so they can better understand what you are saying the alleged bad guys did? Probably not. The cardinal rule of admissibility of evidence is that the probative value has to outweigh the potential for prejudice, or the chance that it will help find the truth is greater than the chance it will lead away from the truth or unnecessarily complicate the trial.

In R. v. MacDonald the Ontario Court of Appeal decided a videotape like the one I just described would be more prejudicial than probative.

In balancing the prejudicial and probative value of a video re-enactment, trial judges should at least consider the video’s relevance, its accuracy, its fairness, and whether what it portrays can be verified under oath.