When the highest court splits 5-4 on basic issues of evidence law, one has to ask whether something is fundamentally wrong with the way the issues are addressed by the law.
Reading Beaver v R, 2022 SCC 54 (9 December 2022) gives rise to questions like the following:
Is there too much room for the appellate court to defer to the findings of the first court in which the issues were determined? Arguably, deference erodes a defendant’s appeal rights. It is the judgement [spelt here with that middle e to emphasise reference to the mental process] of the appeal judges that should be applied to the issues.
Is the concept of the voluntariness of a confession being overloaded with other issues? Reliability, for example, is different from voluntariness. Does voluntariness really invoke a “delicate balance between individual rights and collective interests in the criminal justice system”? [46] Or was that balance struck a long time ago when it was decided (at common law) that confessions must be made voluntarily if they are to be admissible? Does treating the voluntariness rule as having “twin goals” over-analyse what is really a simple point? [1]
Are facts to be assessed holistically or does a “clean or fresh start” make previous breaches of rights irrelevant? Is it fair to assess police conduct disjunctively when the defendant experienced it conjunctively? Should the concept of a clean start be rejected, as the minority would do? [140] Or does it blend in with the holistic approach as the majority suggest at [99]?
When courts assess the reasonableness of an officer’s belief that the defendant has committed an offence, are they really making an objective assessment? Do judges inevitably put themselves in the place of a reasonable person, and in effect using the criterion of a reasonable judge are they less likely to disagree with the first instance judge?
Does the public interest factor require taking account of more than the seriousness of the alleged offence and the importance of the challenged evidence to the prosecution’s case? Does the public interest weigh on both sides of the balance (as it is in the public interest that everyone who is charged with an offence has their rights complied with, as well as that allegations of serious offences should be tried) so that it is too nebulous to be a useful consideration apart from the seriousness of the alleged offence and the centrality of the evidence? Is the reference to “cut both ways” at [130] unbalanced (compare my comment on this metaphor on 11 November 2020)?
Both the majority and the dissenting judgments make good sense in their own ways, so one must consider their respective premisses, and ask whether the problem is with the complexity of the law.
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[1] Funnily enough, in New Zealand our Evidence Act 2006 does not mention the voluntariness of confessional statements, which unless one thinks the Act is a code means that the topic is left to the common law. This could be sensible, for if it were in the Act, a requirement of voluntariness could later be repealed, which would have the consequence that the common law on the point would not be revived: see the Legislation Act 2019, s 32(2)(b). The provision concerning statements obtained by oppression (Evidence Act 2006, s 29) refers to a different issue: the propriety of the conduct of the interrogator. Voluntariness, however, is an issue directed to the volition of the speaker. Involuntariness occurs when a sleeping person speaks, or when a hypnotised person speaks, or when an anaesthetised person speaks, or when a person speaks when their volition is removed by a drug, for example the ravings of an alcoholic directed at an imaginary listener are probably involuntary. Tourette syndrome can produce involuntary speech. Voluntariness is a scientific question. Speech produced by torture is not involuntary, but it is inadmissible because of the improper conduct of the interrogator. The common law rule about confessions having to be "voluntary" (Ibrahim v R [1914] AC 559, 609) is best stated without that word: no statement made by an accused is admissible unless it is affirmatively shown to have been made without fear of prejudice or hope of advantage exercised or held out by a person in authority. That is the sense in which the term "voluntary" was used in Ibrahim: see R v Rennie [1982] 1 All ER 385. The common law rule has two parts: one concerns the behaviour of the person in authority, and the other concerns the effect of that behaviour on the accused. Does Canadian law, in using voluntariness as the touchstone (Beaver at [47], [57]) over-emphasise the effect on the accused, while (it might be said) New Zealand law neglects that except to the extent of requiring that the statement was "influenced"(s 29) by oppression or was made "in consequence" of the improper conduct of the interrogator (s 30(5))? At least the objective behaviour of the interrogator is likely to be less imponderable than the accused's voluntariness.
