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.