The defendant in a trial at common law has the right to make an unsworn statement from the dock before Crown counsel and defence counsel address the jury or “sum up” in a trial before a judge alone; and, before sentence is passed. A statement from the dock at either stage is uninterrupted. It does not expose the defendant to cross-examination by Crown counsel or questioning by the judge. Yet, judges in Alberta have been recently interrupting dock statements made prior to sentence being passed. This judicial interference with an historic right has been occurring with increasing frequency in both the Provincial Court of Alberta and the Court of Queen’s Bench of Alberta. It is objectionable for reasons grounded in the common law and the Criminal Code.

1. The Right In English Law

The common law right to make an unsworn statement from the dock was codified in English law by s. 1(h) of the Criminal Evidence Act 1898 which provided that: “Nothing in this Act shall affect…any right of the person charged to make a statement without being sworn.” The defendant was thus entitled to make an unsworn statement instead of testifying on his own behalf. As subsequently construed in the case law, the content of the statement was only restricted by the requirement that it be relevant to an issue in the case. The trial judge may instruct the jury that a dock statement is less cogent because it is unsworn and not tested by cross-examination. (See: Mitchell (ed). Archbold: Pleading, Evidence & Practice In Criminal Cases (1979); and cases cited at pp. 413-4; e.g. R v Pope (1901), 18 TLR 717; R v Sherriff (1903), 20 Cox 334; and, R v Dunn and O’Sullivan (1924), 17 Cr App R 12).

2. ‘I Am Prepared To Die’

That is the name often given to the statement made by Nelson Mandela from the dock in the Rivonia trial on charges of sabotage, in the Supreme Court of South Africa, on April 20, 1964. It is one of the greatest speeches of the 20th century. The opening statement of Bram Fischer, Mandela’s lawyer, triggered this exchange with Percy Yutar, the prosecutor, and Judge Quartus de Wet:

MR. FISCHER:     The defence case, My Lord, will commence with a statement from the dock by Nelson Mandela who personally took part in the establishment of Umkhonto…and who will be able to inform the court of the beginnings of that organization and of its history up to August 1962 when he was arrested.

MR. YUTAR:        My Lord, My Lord. I think you should warn the accused that what he says from the dock has far less weight than if he submitted himself to cross-examination.

THE COURT:       I think, Mr. Yutar, that counsel for the defence have sufficient experience to be able to advise their clients without your assistance.

Mandela spoke for three hours and concluded with this apologia: “During my lifetime I have dedicated myself to this struggle of the African people. I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.” Anthony Samson, Mandela’s biographer, tells us that the courtroom had fallen silent. (See: Nelson Mandela. An ideal for which I am prepared to die. Part 1 and 2. The Guardian. April 20, 1964; and, Anthony Samson. Mandela: The Authorized Biography (2011), at p. 193)

I am not aware of a reported case in Canada where the defendant made a statement from the dock before the addresses of counsel to the jury. The Code does not contain a provision governing the practice and it has yet to capture the imagination of Canadian trial lawyers. There are, however, many dock statements made during sentence hearings, after the submissions of counsel and before the passing of sentence, that are virtually daily occurrences. (See also: Editors. Evidence: The Unsworn Statement, [1961] Adelaide L Rev 224 for a discussion of the practice in South Australia including English cases dating back to 1695)

3. The Sentence Hearing

The right of the defendant to make a dock statement at a sentence hearing is governed by s. 726 of the Code which simply states: “Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say.” The section is mandatory (although inadvertent failure to comply is not fatal to the proceeding) and should be read together with s. 724 which provides: “In determining a sentence, a court may accept as proved any information disclosed at the trial or at the sentencing proceedings and any facts agreed on by the prosecutor and the offender.” (See: R v Senek (1998), 130 CCC (3d) 473 (Man CA) per Lyon JA, at paras. 9 and 20)

In the majority of sentence hearings, the information and facts are not in dispute. The facts are often “read in” by Crown counsel or submitted in a written statement of agreed facts under s. 655 of the Code. Where there is a dispute about any fact the court shall receive evidence under s. 724(3)(a) and the prosecutor must establish any aggravating fact beyond a reasonable doubt under s. 724(3)(e). It is important to emphasize that the information and facts are not in dispute at the stage in the proceedings when a defendant is asked whether he or she “has anything to say”. What a defendant chooses to say is therefore not evidence. It is not information or facts as contemplated by s. 724 because, at the point when the right to make a dock statement is invoked, the evidentiary part of the sentence hearing under s. 724 has concluded and the facts, either agreed upon or found by the judge, are binding.

The leading case is R v Gouthro (2010), 256 CCC (3d) 432 (Alta CA) where the Alberta Court of Appeal, per curiam, unanimously confirmed the practice under s. 724, at paras. 6-7 and 9:

“Formal admissions in court have always been more than admissible evidence. They are conclusive, and obviate the need to lead evidence. The law about that is cited in R v Miljevic, 2010 ABCA 115, Edm. 0901-0095-A (para. 18), and need not be repeated here. It includes s. 655 of the Code.

In a sentencing hearing in particular, admissions are neither a shortcut, a lazy substitute, nor inferior. A recital of facts in an unsworn statement by the prosecutor is the usual way to put the facts before the sentencing court, especially if there was a guilty plea and so no trial. Even the defence’s express agreement to the facts (as given on two separate occasions here) is not necessary. The facts recited are taken as correct, and obviate the need for more evidence, unless the defence objects to them or contradicts them. The history of this is spelled out, with citations, in R v Markoff, [1936] 3 WWR 667, [1937] 1 DLR 77 (Sask CA), 5 judges). That practice is as common, and as legitimate, today as it was in 1936. Furthermore, s. 724(1) of the Code confirms the practice, as does s. 724(2).

An agreement in open court as to the facts of the crime leading to the sentencing cannot be overturned by showing a mere miscommunication about some facts between client and counsel, nor an oversight in reciting some additional facts. Still less can it be overturned by a later, more thorough trawl for more evidence. After all, the Crown must deal with defence counsel; it cannot ethically inquire into their instructions or the accuracy of counsel’s information, nor go behind counsel’s back and deal directly with an accused who has counsel.”

In Gouthro, the Alberta Court of Appeal concluded, at paras. 37 and 39-40, that s. 726 is not “a call for further evidence”. The question whether the defendant “has anything to say” is put by the judge after the evidentiary part of the hearing has concluded and after argument. The facts cannot be “controverted later in the sentencing process”. Therefore, “what s. 726 calls for is more argument, not evidence. And maybe an expression of remorse or intention, or an apology”.

I have never thought that a statement from the dock is limited to one of remorse or apology although both are common in practice. If that is what Parliament wanted to say, it would have said it. What Parliament did say is that “the court shall ask whether the offender, if present, has anything to say”. That is the text. A statement from the dock therefore gives a defendant the floor, the last word, and the right to tell the court that the trial was unfair, that the conviction is wrong – the right to castigate a political Indictment. It is one of the great rights in trials at common law preserved in Part XXIII of the Code.

A statement from the dock can be one of the most compelling moments in a courtroom – particularly when the stakes are as high as the death sentence that Mandela faced. And they have been used by writers to powerful dramatic effect. On May 7, 1535, Sir Thomas More was tried for high treason because he refused to endorse King Henry VIII’s divorce from Catherine of Aragon so he could marry Anne Boleyn thus denying the King’s Supremacy. Here is how More finally breaks his silence in Robert Bolt’s play A Man For All Seasons (1960):

NORFOLK:         Prisoner at the bar, you have been found guilty of High Treason. The sentence of the Court –

MORE:                My Lord, when I was practicing the law, the manner was to ask the prisoner before pronouncing sentence, if he had anything to say.

NORFOLK:        Have you anything to say?

MORE:               Yes…I am the King’s true subject, and pray for him and all the realm…I do none harm, I say none harm, I think none harm. And if this be not enough to keep a man alive, in good faith I long not to live…I have, since I came into prison, been several times in such a case that I thought to die within the hour, and I thank Our Lord I was never sorry for it, but rather sorry when it passed. And therefore, my poor body is at the King’s pleasure. Would God my death might do him some good…Nevertheless, it is not for the Supremacy that you have sought my blood – but because I would not bend to the marriage.

The encroachment of judges in Alberta on the right to make an unsworn and uninterrupted statement from the dock is objectionable, then, for at least three reasons. First, the right is to say anything. Questions from the judge cannot serve any purpose because the statement from the dock is not evidence. It is not an examination for discovery. The evidentiary part of the sentence hearing has already concluded. Second, the dock statement does not permit a judge to “go behind counsel’s back” and deal directly with the defendant. It is just as unethical for a judge to do so as it is for Crown counsel to do so. Third, the making of a dock statement does not constitute a general waiver of the right to remain silent under s. 7 of the Charter of Rights. It does not turn the defendant into a compellable witness. The essence of a dock statement, its very character, is that it is unsworn and not subject to examination whether the questions are asked by Crown counsel or the judge.

Yet, with all that, with the right to say anything, unsworn and uninterrupted, whenever my clients are about to make a statement from the dock, I find myself walking into the courtroom thinking: “What could possibly go wrong?”