R. v. O’Brien, [1978] 1 SCR 591

Supreme Court of Canada

R. v. O’Brien, [1978] 1 S.C.R. 591

Date: 1977-06-24

Her Majesty The Queen Appellant;

and

Martin Edward O’Brien Respondent.

1976: December 13; 1977: June 24.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Evidence—Hearsay—Statement by deceased made to counsel of the accused—Requirements for admission of the statement—Criminal Code, R.S.C. 1970, c. C‑34, s. 610.

The respondent O’Brien and one Jensen were jointly charged with possession of a narcotic for the purpose of trafficking. O’Brien was arrested and convicted; Jensen fled the country. Following the respondent’s conviction, Jensen returned to Canada but charges against him were stayed. Later on, Jensen told the respondent’s counsel, Mr. Simons, that he alone had committed the act. He agreed to testify to that effect but died before the hearing. The British Columbia Court of Appeal having granted leave to adduce fresh evidence, Mr. Simons repeated Jensen’s statement before that Court. On the strength of Mr. Simons’ testimony the Court allowed the appeal and directed an acquittal. Leave to appeal to this Court was granted on the question whether Mr. Simons’ evidence was inadmissible as hearsay.

Held: The appeal should be allowed.

It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. The evidence being offered by Mr. Simons to prove that Jensen and not O’Brien had committed the act, is a classic example of hearsay and is inadmissible unless it falls within an exception to the hearsay rule.

The respondent sought to support the admissibility of Mr. Simons’ testimony as falling within an exception to the hearsay rule. This Court considered that the rule established in The Sussex Peerage case, (1844), 8 E.R. 1034, as to absolute exclusion of declarations against penal interest should not be followed. However, a declaration against penal interest should meet certain

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requirements before being held admissible. These requirements are, inter alia: (1) the fact stated should have been “to the deceased’s immediate prejudice” at the time when he stated it; (2) when the deceased made the statement he should have known the fact to be against his interest; (3) the declaration would have to be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result; (4) the vulnerability to penal consequences would have to be not remote. Jensen did not make his declaration of guilt until ten months after the respondent had been convicted and not until almost six months after the charges which he himself faced had been stayed. He made his statement in the privacy of Mr. Simons’ office and refused to swear an affidavit. His obvious desire was not to create damaging evidence, detrimental to his penal interest. Viewed from Jensen’s subjectivity, the statement was not against his interest. Failure to fall within the exception is fatal to the admission of Mr. Simons’ hearsay. The evidence being inadmissible, s. 610 of the Criminal Code does not apply.

Sussex Peerage (1844), 8 E.R. 1034, not followed; Ward v. H.S. Pitt & Co.; Lloyd v. Powell Duffryn Steam Coal Company, [1913] 2 K.B. 130, reversed on other grounds [1914] A.C. 733; Demeter v. The Queen, [1978] 1 S.C.R. 538, (1977), 34 C.C.C. (2d) 137, considered; Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 956; Ratten v. Reginam, [1971] 3 All E.R. 801; Teper v. The Queen, [1952] A.C. 480; Tucker v. Oldbury Urban Council, [1912] 2 K.B. 317; Standen v. Standen (1791), 1 Peake’s N.P. 45, 170 E.R. 73; Middleton v. Malton (1829), 10 B. & C. 317, 109 E.R. 467; Powell v. Harper (1833), 172 E.R. 1112; Donnelly v. United States (1913), 228 U.S. 243; United States v. Harris (1971), 403 U.S. 573; Hines v. Commonwealth (1923), 117 S.E. 843 (Virginia); Sutter v. Easterly (1945), 189 S.W. 2d 284 (Missouri); People v. Lettrich (1952), 108 N.E. 2d 488 (Illinois); People v. Spriggs (1964), 60 C. 2d 868 (California); People v. Brown (1970), 26 N.Y. 2d 88 (New York); Blocker v. State (1908), 114 S.W. 814 (Texas); McClain v. Anderson Free Press (1958), 102 S.E. 2d 750 (South Carolina); Scolari v. United States (1969), 406 F. 2d 563 referred to.

APPEAL from a judgment of the British Columbia Court of Appeal which, after hearing new evidence, set aside the conviction and directed an acquittal. Appeal allowed and conviction restored.

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M.M. de Weerdt, Q.C., and H.J. Wruck, for the appellant.

John D. McAlpine, Q.C., and Keith R. Hamilton, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—Martin Edward O’Brien and Paul Jensen were jointly charged with possession of a narcotic for the purpose of trafficking. O’Brien was arrested and convicted; Jensen fled the country. Following O’Brien’s conviction, Jensen returned to Canada. He told O’Brien’s counsel, Mr. Simons, that he, Jensen, alone had committed the act. He agreed to testify to that effect. Before the hearing, Jensen died. Leave to adduce fresh evidence was obtained from the British Columbia Court of Appeal. Mr. Simons repeated Jensen’s statement before that Court. On the strength of Mr. Simons’ testimony the Court allowed the appeal and directed an acquittal. The substantial question upon which this Crown appeal turns is whether Mr. Simons’ evidence was inadmissible as hearsay.

Leave to appeal against the judgment of the Court of Appeal was granted on the following question of law:

That the Court of Appeal for British Columbia erred at law in holding that hearsay evidence given before that Court by Sidney B. Simons pursuant to leave granted in accordance with section 610 of the Criminal Code would have been capable of raising a reasonable doubt in the mind of the trial judge as to the guilt of the accused.

Mr. Justice McFarlane, of the British Columbia Court, was of opinion that the evidence of Mr. Simons was not hearsay.

It is settled law that evidence of a statement made to a witness by a person who is not himself called as a witness is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement; it is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement but the fact that it was made. This succinct formulation of the hearsay rule which one

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finds in Subramaniam v. Public Prosecutor[1], at p. 970, was repeated with approval in Ratten v. Reginam[2], at p. 805. The reasons supporting the exclusion of hearsay evidence were stated by Lord Normand in Teper v. The Queen[3], at p. 486:

The rule against the admission of hearsay evidence is fundamental. It is not the best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross-examination, and the light which his demeanour would throw on his testimony is lost.

The evidence of Mr. Simons was offered for the purpose of proving the truth of the matter asserted. It was sought, through that evidence, to prove that Jensen, and not O’Brien, had committed the act with which O’Brien stood charged, or at least to raise a reasonable doubt as to O’Brien’s guilt. That is the classic touchstone of inadmissible hearsay.

Before this Court counsel for O’Brien sought to support the admissibility of Mr. Simons’ testimony as falling within an exception to the hearsay rule. It was contended that a hearsay statement by a deceased person against his interest constitutes such an exception. The exception rests upon necessity and presumed trustworthiness. The witness is dead; there is no other evidence available on the point. It is considered that declarations made by persons against their own interests are “extremely unlikely to be false” per Fletcher Moulton L.J. in Tucker v. Oldbury Urban Council[4], at p. 321.

In several of the early cases the exception is expressed in broad language. Thus in Standen v. Standen[5], in which the validity of a marriage was at issue Lord Kenyon heard the evidence of Charles Standen that the banns had not been duly published three times. Standen testified that he

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had been told by the clergyman that a friend of the wife forbade them the second time they were published. As to this, Lord Kenyon said, at p. 48:

If the entry in the register was not truly stated, the clergyman was guilty of felony, and he put himself in a dangerous situation by making such a confession as that stated by the witness Charles Standen.

In Middleton v. Malton[6], secondary evidence of the contents of a private book was received. Bayley J. said, at p. 323:

It is a general principle of evidence, that declarations or statements of deceased persons are admissible when they appear to have been made against their interest.

and Parke J. said, at p. 327:

The general rule undoubtedly is, that facts must be proved by testimony upon oath. This case, however, falls within the exception necessarily engrafted upon that rule, viz. that an admission of a fact made by a deceased person, which is against the interest of the party making it at the time, is evidence of that fact as between third persons.

In Powell v. Harper[7], Parke J. allowed a witness to testify as to what he had been told by one Askins who, it was said, had stolen a number of rosewood chair tops. Mr. Justice Parke dealt with an objection to the admission of this evidence by saying: “Yes. What he said is evidence to shew that he committed the larceny.”

The question whether declarations against interest extended to declarations against penal interest as well as declarations against pecuniary interest was considered in The Sussex Peerage[8]. In that case, which the Crown asks the Court to follow, it was held by all of the Lords that the declarations of deceased persons are not generally admissible unless they are against the pecuniary interest of the party making them. Lord Campbell said, at p. 1045:

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But as to the point of interest, I have always understood the rule to be, that the declaration, to be admissible, must have been one which was contrary to the interests of the party making it, in a pecuniary point of view; and, with the exception of Standen v. Standen, I do not know any case which appears to break in upon that principle. I think it would lead to most inconvenient consequences, both to individuals and to the public, if we were to say that the apprehension of a criminal prosecution was an interest which ought to let in such declarations in evidence.

Reasons in support of the more limited rule were advanced by Lord Brougham in the same case in the following strong language, at p. 1045:

To say, if a man should confess a felony for which he would be liable to prosecution, that therefore, the instant the grave closes over him all that was said by him is to be taken as evidence in every action and prosecution against another person, is one of the most monstrous and untenable propositions that can be advanced.

and by Lord Denman in these words:

With regard to declarations made by persons in extremis, supposing all necessary matters concurred, such as actual danger, death following it, and a full apprehension, at the time, of the danger and of death, such declarations can be received in evidence, but all these things must concur to render such declarations admissible. Such evidence, however, ought to be received with caution, because it is subject to no cross‑examination.

The judgment of Hamilton L.J. (later Lord Sumner) in Ward v. H.S. Pitt & Co.; Lloyd v. Powell Duffryn Steam Coal Company[9] (reversed on other grounds[10]) deals at length with the admissibility of statements made by deceased persons and contains the following well-known passage with respect to the rule and its theoretical base:

It has long been held that the interest to which the statement must be adverse must be a pecuniary one or, which is only a species of the same genus, a proprietary one. A statement would not be against interest if only generally criminatory; one “which might in some way or other injuriously affect the interest of the party” (per Lord Lyndhurst L.C., Lords Brougham and Denman in

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the Sussex Peerage Case) or which might be prejudicial to reputation or social consideration.

The reasons given for admitting such evidence at all shew the stringency of these essential conditions. The case is exceptional, not to say anomalous. The evidence thus admitted is hearsay and the person on whose credit it rests is beyond cross-examination and is not even seen by the jury. The ground is that it is very unlikely that a man would say falsely something as to which he knows the truth, if his statement tends to his own pecuniary disadvantage. As a reason this seems sordid and unconvincing. Men lie for so many reasons and some for no reason at all; and some tell the truth without thinking or even in spite of thinking about their pockets, but it is too late to question this piece of eighteenth century philosophy.

The Sussex Peerage case has found some support in the American courts. In Donnelly v. United States[11], Mr. Justice Pitney, for the majority of the United States Supreme Court, excluded the confession of a third party, since deceased, to the crime with which the appellant was charged. In so doing, he noted the chief grounds of the exclusion of hearsay evidence. He referred to the evidence being without the sanction of an oath, the lack of responsibility on the part of the declarant for error or falsification and the absence of opportunity “to observe the demeanour and temperament of the witness and to search his motives and test his accuracy and veracity by cross-examination.”

In Donnelly’s case, Mr. Justice Holmes, with whom Mr. Justice Lurton and Mr. Justice Hughes concurred, disagreed with the majority opinion in a brief but trenchant dissent.

Recently, in United States v. Harris[12], Chief Justice Burger observed that the implication of Donnelly’s case that statements against penal interest are without value and per se inadmissible had been widely criticized. He continued, at p. 584: “Whether or not Donnelly is to survive as a rule of evidence in federal trials, it should not be

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extended to.…”

In Donnelly, Mr. Justice Pitney said that there was, at that time, a “great and practically unanimous” weight of authority in the state Courts against admitting evidence of confessions of third parties made out of court and tending to exonerate the accused. That unanimity has disappeared: Hines v. Commonwealth[13]; Sutter v. Easterly[14]; People v. Lettrich[15]; People v. Spriggs[16]; People v. Brown[17]; Blocker v. State[18]; McClain v. Anderson Free Press[19].

In Scolari v. United States[20] the United States Court of Appeals, Ninth Circuit, followed Donnelly, feeling bound so to do, but stated at the same time:

We leave to a more propitious occasion the question as to how old, or how badly reasoned, or both, a Supreme Court decision on a question of evidence must be before we are to feel free to refuse to follow it.

Dean Wigmore has made a devastating onslaught on a rule which would admit declarations against pecuniary interest but deny admission to declarations against penal interest (5 Wigmore (3d) paras. 1476, 1477). His attack is founded upon logic and upon the historical argument that The Sussex Peerage case was a departure from the earlier rule that admissions against interest generally were accepted in a proper case; The Sussex Peerage case was a “backward step,” in the words of Traynor J. in People v. Spriggs, supra. Dean Wigmore is not alone in his reproach: see Baker, The Hearsay Rule, 64; Morgan “Declarations Against Interest”, 5 Vand. L. Rev. 451; Jefferson, “Declarations Against Interest; an Exception to the Hearsay Rule”, 58 Harv. L. Rev. 1.

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The effect of the rule in The Sussex Peerage case, as it has been generally understood, is to render admissible a statement by a deceased that he had received payment of a debt from another or that he held a parcel of land as tenant and not as owner, but to render inadmissible a confession by a deceased that he and not someone else was the real perpetrator of the crime. The distinction is arbitrary and tenuous. There is little or no reason why declarations against penal interest and those against pecuniary or proprietary interest should not stand on the same footing. A person is as likely to speak the truth in a matter affecting his liberty as in a matter affecting his pocketbook. For these reasons and the ever-present possibility that a rule of absolute prohibition could lead to grave injustice I would hold that, in a proper case, a declaration against penal interest is admissible according to the law of Canada; the rule as to absolute exclusion of declarations against penal interest, established in The Sussex Peerage case, should not be followed.

There is a further question. Can it be said that Jensen’s declaration to Mr. Simons qualifies as a declaration against penal interest? The requirements to be met before admission of an extra judicial statement were stated by Hamilton L.J. in Ward v. H.S. Pitt & Co.; Lloyd v. Powell Duffryn Steam Coal Company, supra. In Demeter v. The Queen[21], this Court held that the principles enunciated by the Court of Appeal for Ontario in that case furnished a valuable guide for consideration in the event this Court should determine that a declaration against penal interest was not to be held inadmissible under the rule against the reception of hearsay evidence.

The second and third requirements in Ward’s case were:

2. It is essential that such fact should have been “to the deceased’s immediate prejudice,” that is against his interest at the time when he stated it. If it may be construed for his interest or against it (Massey v. Allen) or may only be against his interest in certain future events (ex parte Edwards) it is inadmissible.

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3. It is essential that the deceased should have known the fact to be against his interest when he made it, because it is on the guarantee of truth based on a man’s conscious statement of a fact, “even though it be to his own hindrance,” that the whole theory of admissibility depends. It is “a necessary element, that the subject-matter of the declaration…must have been within the direct personal knowledge of the person making the declaration” (per Lord Selborne L.C. in Sturla v. Freccia); “to support the admissibility it must be shewn that the statement was, to the knowledge of the deceased, contrary to his interest” (per Fletcher Moulton in Tucker v. Oldbury Urban Council, [1912] 2 K.B. 317,321).

The first and second principles enunciated by the Ontario Court of Appeal in Demeter were, in part:

1. The declaration would have to be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result.

2. The vulnerability to penal consequences would have to be not remote.

In the case at bar, Jensen did not make his declaration of guilt until ten months after the respondent had been convicted and sentenced and not until almost six months after the charges which he himself faced had been stayed.

It might be useful to recall the chronology and the time intervals:

December 13, 1972	Date of alleged offence. Jensen left the country upon hearing that O’Brien had been arrested.
April 2, 1974	O’Brien convicted.
April 11, 1974	Jensen returned to Canada and was arrested.
April 26, 1974	O’Brien sentenced.
September 24, 1974	Charges against Jensen stayed.
October, 1974	Mr. Simons’ office in communication with Jensen at which time Jensen agreed to attend to discuss. He did not appear.
March 12, 1975	Jensen attended at the office of Mr. Simons.
April 16, 1975	Jensen died from drug overdose.

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Jensen had consulted counsel. According to Mr. Simons’ notes of the interview, Jensen told him “no affidavits—O.K. to talk to Martin’s [O’Brien’s] lawyer—lawyer says to take Canada Evidence Act.” There was presumably always the possibility that the stay of proceedings against Jensen might be lifted—the record is silent as to the reason for the stay—but the entire circumstances in which the statement was made negative the conclusion Jensen apprehended exposing himself to prosecution. The statement was made in the privacy of Mr. Simons’ office. The public confession was to be in circumstances in which his words could not be used nor be receivable in evidence against him in any criminal trial. The following passage is taken from the transcript of the proceedings before the Court of Appeal:

Bull, J.A.	… and I am willing to accept it, that this man would not swear an affidavit as to these things because he thereby would not have the protection of the Canada Evidence Act.
Maclean, J.A.	Yes, because he would take the risk.
Bull, J.A.	Because he would be taking a risk, and I do not blame him.
Maclean, J.A.	Yes, friendship would not have gone that far

As Professor Morgan has stressed in his article, in The Sussex Peerage case one of Lord Lyndhurst’s reasons for holding the testimony inadmissible was that the offered declarations were made to declarant’s own son, “and in so making them, it cannot be presumed that he would have exposed himself to prosecution, or that he made them under any belief that he should do so.”

The guarantee of trustworthiness of a statement made out of Court flows from the fact that the statement is to the “deceased’s immediate prejudice.” To be admissible there must be a realization

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by the declarant that the statement may well be used against him. That is the very thing Jensen wished to avoid. He had no intention of furnishing evidence against himself. His obvious desire was not to create damaging evidence, detrimental to his penal interest. Yet, that is the very basis upon which admissibility of extra-judicial declarations of penal interest rests. In my opinion, the statements of Jensen to Mr. Simons failed to meet the requirements for admissibility. Viewed from Jensen’s subjectivity, the statements were not against interest. Failure to fall within the exception is, therefore, fatal to the admissibility of Mr. Simons’ hearsay.

Section 610 of the Criminal Code lends no assistance to respondent’s case. It is a prerequisite that any evidence sought to be adduced under the discretion granted by that section be admissible evidence. The section manifestly does not authorize a Court of Appeal to dispense with the law of hearsay evidence. If that were so we would have the anomalous situation in which counsel could seek to adduce on appeal that which the common law prohibits at trial. The section is not operative until the threshold for admissibility as defined by common law and statute is crossed. That threshold has not been crossed in the instant case.

A last word: The Court of Appeal allowed Mr. Simons, who had been acting as counsel for the accused O’Brien, to give his own evidence as to the story he had heard from Jensen. Whether or not Mr. Simons was a competent witness in the circumstances is a point to which no considered submission was addressed and on which I express no opinion.

I would allow the appeal, set aside the acquittal entered by the Court of Appeal for British Columbia and restore the conviction, subject to determination of the issues raised on behalf of the respondent in the Notice of Application for Leave to Appeal, which have not yet been argued. The decision of the Court of Appeal was made following the argument relating to the tendering of the evidence of Mr. Simons. I would, accordingly,

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refer the matter back to the Court of Appeal for adjudication on the issues yet to be decided.

Appeal allowed.

Solicitor for the appellant: D.S. Thorson, Ottawa.

Solicitors for the respondent: McAlpine, Roberts & Poulus, Vancouver.