Is Now the Time to Say I'm Sorry?
In my last blog entry, I discussed remorse in the context of
criminal sentencing. But what about demonstrations of remorse before
sentencing?
The timing of an accused’s contrition is tactically important. An apology made by the accused for the
conduct which forms the basis of a criminal charge may be used at trial to incriminate
the accused (assuming it is admissible under rules of evidence). Though in most
circumstances such an apology would simply be one piece of the factual puzzle,
and incriminating only to the extent that it is, for instance, reliable,
elaborated upon, and qualified. Such was
the case in R. v. J.F., 2015 ONSC 3136.
Since 2009, Ontario has had an Apology Act which
provides that: an apology made by or on
behalf of a person in relation to any matter does not constitute an admission
of fault or liability by the person.
This is
good social policy as it encourages individuals to take responsibility and make
amends for their wrongful actions without fear their efforts will be used to
their detriment. However, nothing
in the Act affects the
admissibility of any evidence in a criminal proceeding (see section 3 of Apology
Act, 2009, SO 2009, c3).
Further, if a person apologizes while
testifying at a civil proceeding (including an examination, administrative
proceeding or arbitration), the protection otherwise offered by the Act does
not apply for the purposes of that proceeding/arbitration.
So, both
timing and place matter when it comes to saying sorry.
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