Admissibility of statements where maker is unavailable or dead

In Manning v. Algarde Estate 2008 BCSC 1129 the plaintiff sued the West Vancouver Police for the return of valuable gold coins she had been fortunate enough to find at a garage sale.

In 1994 the true owner of the coins had reported them stolen and had since died. He had provided two statements in connection with the theft. The issue was whether or not these statements were admissible into evidence.

The court looked at the principled approach to the admissibility and in particular the decision of the Supreme Court of Canada in R. v. Khelawon 2006 SCC. The two issues were necessity and reliability.

Necessity was established as is usually the case where the maker of the statement is dead by the time of trial. As noted by Henderson, J. in Bolton v. Vancouver (City) 2002 BCSC 1061 “the death of the declarant in and of itself satisfied the necessity principle”.

The real issue was reliability and the court examined the circumstances around the making of the statements and also considered trial fairness. Finch C.J.B.C. in R. v. Post 2007 BCCA 2166 BCLR (4th) 148 noted that the overreaching principle is trial fairness and that threshold reliability can be established in two ways:

  1. The circumstances in which the statement was made may provide sufficient comfort as to its truth and accuracy;
  2. The statement’s truth or accuracy may be sufficiently tested because of the presence of adequate substitutes to an oath and cross-examination at trial.

In considering reliability, the court considered other relevant factors some of which were listed in the Bolton case:

The court is to consider such things as whether the declarant had any motive to lie, or bias; whether the statement was adduced through leading questions; whether the statement was preceded by the taking of an oath or, alternatively, by a warning of the importance of telling the truth; whether the declarant evidenced some awareness of the solemnity of the occasion and the importance of accuracy; whether the declarant evidenced any mental impairment due to alcohol, drugs, shock or fatigue; and whether the declarant had an opportunity to reflect and therefore to tailor her evidence.

In my view, it is also relevant to consider under this head whether or not the statement was taken by an independent investigator. In the civil case, one should consider whether the statement was taken by a party, or an agent of a party, or an agent of a potential party, in the litigation.

The Court indicated that the test for admissibility of hearsay evidence is applied in civil cases in the same way as applied in criminal cases (per Goldie, J.A. in Mohammed v. Canadian Northern Shield Insurance Co. (1994), 96 BCLR (2d) 373 (C.A.) and looked at trail fairness which was considered in Pierre v. Mount Curry Indian Band (1999) 61 BCLR (3d) 381 (S.C.) where the judge weighed the potential prejudice to both parties.

On the facts of this case if the statements of the deceased were not admitted into evidence, the prejudice flowing to the estate from that refusal was substantially more severe than the prejudice to the plaintiff from admitting it. The court went on to address the factors set out in Post and Bolton for each of the statements concerned and found that the estate had met the burden of establishing both necessity and reliability for the 1994 statement but that the other statement was not admissible as the estate had failed to establish the threshold reliability of that statement. The court concluded that the estate had succeeded with its claim to four of the five coins.

In the case of Bishop v. Hiebert 21 BCLR (3d) 193, the court in a motor vehicle accident case had to determine whether the evidence of an independent witness who had given a statement at the accident to the police and was later dying could be admissible at trial. The court noted that the decisions of the Supreme Court in R. v. Khan (1990) 2 SCR 530 and R. v. Smith (1992) 75 CCC (3d) 257 signaled a more relaxed attitude by trial courts to the acceptance of hearsay evidence. In this case reliability was the issue not necessity. On the facts of this case the court found that the circumstance substantially negated the possibility that the evidence of the deceased witnessed was unreliability inter alia on the basis he was not acquainted with any party to the accident, was not involved in the accident, his statement was made, in writing, at the scene and within an hour of the accident, the events were fresh in his mind and nothing would be lost in the reporting of his statement, that the statement was made to a police officer in the course of a formal investigation of the accident, that it was obvious from the nature of the accident the witness might likely be required to testify in either criminal or civil proceedings arising out of accident and that it was preferable for such a written statement to be introduced through the police officer who took the statement.

In Bolton v. Vancouver (City) 2002 BCSC 1061 involving a motor vehicle accident, the reliability of five statements made by an individual who subsequently died was in issue. The first conversation, the 911 call was admissible in evidence, the statement given to the police officer at the hospital a few hours post-accident were admissible but the follow-up phone call one month later was inadmissible as it was not taped and no written record of the call was authenticated. A statement provided to the adjuster was inadmissible. It was taken two and a half weeks post-accident, the adjuster was working for a potential party to the litigation at the time, ICBC, and the witness providing the statement was not under oath, did not have the statement taped (but it was written and signed). The court was not satisfied that it attained the threshold level of reliability required for the principled acceptance to the hearsay rule.

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