R v Fliss

R. v. Fliss

[2002] 1 S.C.R. 535, 2002 SCC 16
Supreme Court of Canada — Binnie J. (majority), Arbour J. (concurring) | February 21, 2002

Background

Peter William Fliss confessed to murdering Jo Anne Feddema during an elaborate undercover police operation. Over months, skilled police work convinced Fliss that undercover officers were part of a criminal enterprise he might join. On January 29, 1997, at the Landis Hotel in Vancouver, Fliss provided gruesome details of how he struck Feddema with his truck, then killed her with a crowbar to prevent her from reporting the accident.

The confession was secretly recorded with judicial authorization, but the trial judge ruled the authorization was granted on insufficient evidence — making the recording a Charter breach. The judge excluded the tape and transcript but allowed the undercover officer to testify about the conversation from his 'refreshed memory.' The officer's testimony was essentially a 34-page verbatim recitation of the excluded transcript.

Issues

1. Whether the officer's evidence violated section 8 Charter protection against unreasonable search and seizure
2. Whether such evidence should be excluded under section 24(2) of the Charter

The Memory Refreshing Deception

The Supreme Court identified a fundamental problem: while officers can refresh their memory using any means (even inadmissible evidence), what happened here went far beyond memory refreshing. The officer clearly remembered the confession's main elements, but his testimony included 34 pages of detailed dialogue that he admittedly could not recall either at trial or when he 'corrected' the transcript the day after recording.

The Court explained that testimony based on 'past recollection recorded' requires the witness to swear the record accurately represented their knowledge at the time it was made. Here, the officer testified he could only recall 'parts' of the conversation when reviewing the transcript — meaning portions of his testimony were sourced entirely from the excluded recording, not his memory.

As Justice Binnie wrote: 'It is those portions of the conversation that he did not remember, either at trial or at the time he proofread the transcript, but that were nevertheless put into evidence against the accused, that violate the s. 8 Charter protection because, as to those portions, the sole basis of the testimony was the unauthorized tape.'

Charter Analysis Under Section 24(2)

Despite finding a Charter breach, the Court applied the three-part test for excluding evidence and concluded the testimony should be admitted. First, the evidence didn't affect trial fairness because the confession was freely given, not conscripted. Second, the Charter breach was relatively minor — police acted in good faith with judicial authorization that one judge found sufficient. Third, excluding the officer's testimony would bring the administration of justice into disrepute given the seriousness of murder and the voluntary nature of the confession.

Key Takeaway

Courts will not allow police to circumvent Charter exclusions by having officers read excluded evidence into the record under the guise of 'refreshed memory.'

This Supreme Court decision establishes important limits on how excluded evidence can be introduced through witness testimony, though the specific facts here — involving a freely given confession to a serious crime — still allowed admission under Charter section 24(2).