Focus On

EVIDENCE - Admissibility - Prejudicial evidence - Confessions and statements by the accused

Monday, April 26, 2021 @ 9:35 AM  


Lexis Advance® Quicklaw®
Appeal by the accused from a conviction for first-degree murder. The victim was stabbed to death in her home. The perpetrator was targeted by a police undercover “Mr. Big” operation in which he implicated the accused and the victim’s husband. The accused was prosecuted under s. 21(1)(b) of the Criminal Code for aiding the murder. The Crown alleged that the accused planned the murder with the victim’s husband, and that she arranged for and financed the killing. The Crown alleged that the motive was to enable a relationship between the accused and the victim’s husband. The husband and the perpetrator were tried separately and convicted. The accused was convicted following a jury trial. She appealed on the basis that the trial judge erred in admitting the statements made by the perpetrator during the undercover operation, erred in admitting statements made by the accused to an undercover officer during the same operation, and that a courtroom sheriff’s interactions with the jury seriously undermined trial fairness and justified a mistrial.

HELD: Appeal dismissed. The trial judge did not wrongly admit the hearsay statements by the perpetrator made during the undercover police operation by failing to weigh probative value and prejudicial effect specifically in relation to the accused’s trial. The trial judge did not consider herself bound by the voir dire ruling in the separate trial involving the perpetrator and husband and was entitled to review and consider that ruling’s findings. The judge was alive to the fact that overbearing prejudicial effect may justify exclusion even where the criteria of necessity and threshold reliability were met. The judge was entitled to find that the prejudice identified in the voir dire ruling was ameliorated by the fact of severance and could be further ameliorated by strong warnings to the jury. In respect of the accused’s statements during the undercover operation, a Hart voir dire was not required to determine admissibility, as the accused unequivocally, and fully informed, waived the necessity of a voir dire. There was nothing in the circumstances of the accused’s interaction with the officer that warranted the trial judge disregarding or looking behind the waiver to conduct a full or partial voir dire. The discretionary decision to deny a mistrial based on the sheriff’s interactions with the jury did not involve any error in principle. The sheriff’s conduct was denounced in open court. It was not established that the sheriff’s conduct resulted in actual prejudice or that a miscarriage of justice resulted.

R. v. Athwal, [2021] B.C.J. No. 356, British Columbia Court of Appeal, H. Groberman, J. DeWitt-Van Oosten and J.C. Grauer JJ.A., March 1, 2021. Digest No. TLD-April262021001