Judgment of the Court
- J.:-By a unanimous judgment, the Court Appeal for the Province of Quebec (1) maintained, without written reasons, the conviction of the appellant on a charge of rape.
The grounds upon which leave to appeal to this Court was granted involved, amongst others, the point whether answers given by the accused, while under arrest for the offence, to questions put to him by a detective in authority, were admissible to contradict his testimony at trial, in the absence of any voir dire as to the free and voluntary character of these answers.
Examined in chief, on his defence, the accused denied having ever seen the victim of the offence.
In crossexamination, he admitted that the police had several conversations with him but, when referred to the substance of the latter, he testified having said nothing indicating any knowledge of the facts of the charge, declaring rather, in the occurrence, that he thought his failure to inform the authorities of a change of address, with respect to the registration of his automobile, was the reason for his arrest. To contradict this testimony, the Crown, in rebuttal, called Detective Joyal who, notwithstanding the objection made by counsel for the defence, was allowed to refer to these conversations and give the following evidence, unpreceded by any examination on voir-dire:- S.C.R.
Q. In Sankey v. The King (1) and in Thiffault v. The King (2), this Court made it very clear that the burden of establishing to the satisfaction of the Court that anything in the nature of a confession or statement procured from the accused while under arrest was voluntary always rests with the Crown; and that such a burden can rarely, if ever, be discharged merely by proof that the giving of the statement was preceded by the customary warning and an expression of opinion on oath by the police officer, who obtained it, that it was made freely and voluntarily. The phases of trial at which the Crown seeks to introduce such statements, whether it be as part of its case in chief, or upon cross-examination of an accused heard in defence, or in rebuttal of evidence adduced by the defence, is foreign to and in no way affects the ratio of the principle confirmed under these authorities.
As stated by Humphreys J. delivering the judgment of the Court of Appeal in England, in Rex v. Treacy (3), a statement made by a prisoner under arrest is either admissible or not; if it is admissible, the proper course for the prosecution is to prove it, and, if it is not admissible, nothing more ought to be heard of it; and it is wrong to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a person in cross-examination.
In Hebert v. The Queen (4), Cartwright J., at page 141, refers to the Canadian jurisprudence in the matter. In the latter case, the Crown, upon cross-examination of the accused, made use of such statements.
Kellock, Locke, Cartwright and Fauteux JJ. decided that such evidence was inadmissible, and Estey J., without determining the matter, said that "a cross-examination upon such a statement, by the great weight of authority in our Provincial Courts as well as in the Court of Criminal Appeal in England has been condemned". The other Members of the Court, who at