In the recent case of R v Farrah, 2011 MBCA 49 the Manitoba Court of Appeal considered an curious situation. David Farrah was charged with robbery and other related offences. On January 31, 2007 two patrons had entered a bank to use the ATM when they were confronted by a male armed with a sawed-off shotgun. The patrons were able to flee although the male shot at them as they drove away.
Police were called and a K9 track commenced. The K9 track eventually led to an apartment building. Inside the K9 tracked to suite 16, paused, then moved on to suite 12 and indicated an entry. Ultimately the police entered and searched both suites 12 and 16. In suite 12 Farrah was found hiding. In suite 16 a shotgun with one discharged shell was found.
At trial Farrah sought to exclude the evidence of the gun based on a violation of his section 8 Charter rights. In doing so he asserted (as he needed to in support of his motion) a reasonable expectation of privacy in that suite - something he did by questioning the police about utterances he made at the scene to that effect. The motion was dismissed.
At trial Farrah testified. In doing so, he disavowed any interest in suite 16 indicating he no longer lived there and had no access thereto. Farrah was convicted and appealed.
On appeal the Court of Appeal considered this curious approach taken by Farrah. The court noted that at trial neither counsel or the judge commented on this "evidentiary discrepancy". The court continued:
Nevertheless, this contradiction is troublesome. The concern and unease are clear: an accused should not be able to successfully argue a position at a voir dire based upon evidence of, or from him, and then entirely disavow or attempt to disavow that position at trial based upon a change in his evidence [para 20].
The court further noted that this fluctuating position puts the judge in a "difficult, if not impossible, position" and raises "ethical questions" [para 21].
The court then considered what the trial judge could have done in such a situation. First, the court noted that the trial judge was not functus officio and could have revisited the Charter motion [paras 22-23]. Second, the trial judge could take it into account in assessing the credibility of the accused [para 25].
Either way, this curious approach is one that should not be permitted. As the Court of Appeal noted the maxim quod approbo non reprobo [see definition at para 20 or at The Free Dictionary] comes to mind [para 20].