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HER MAJESTY THE QUEEN IN RIGHT OF CANADA |
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(MINISTER OF NATIONAL DEFENCE) |
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[1] The applicant's counsel sought the respondent's consent to the transfer of the evidence from the court file for the application for leave to this judicial review file "... in order to avoid needless duplication of what has already been filed." The respondent's counsel consented through a voice-mail message with no apparent further comment or qualification. |
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[2] There is no evidence or authority to support the applicant's contention that this consent constitutes a bar to the respondent's present motion to strike two of the affidavits so transferred. The respondent's consent was an expected courtesy between colleagues. In the absence of the consent, the affidavits could have been filed with the applicant's application record. The respondent could then have moved to strike the affidavit. The respondent did not worsen its position by consenting to the orderly introduction of this evidence in the judicial review file. The disposition of this motion will in no way vary the consent order which directed the transfer of the material from one court file to the other. |
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[3] The affiants of the two affidavits being challenged are private investigators. Both affidavits introduce the same investigation report of May 31, 1994. The report summarizes a telephone interview with Mr. David Dubois and a meeting with Major David Mezzabotta to obtain information concerning the applicant's treatment by Lt. Col. K. Bartels. Both individuals provided substantially subjective information which, the applicant suggests, supports his position. According to the report, Mr. Dubois refused to meet with the investigators and Major Mezzabotta "... consented to the interview on the condition that no formal statement would be taken and that the strictness of confidentiality would be mentioned. If questioned, he would deny that any meeting ever took place, but could cooperate to a degree, if subpoenaed to any civil hearing." The report of May 31, 1994 was not filed in any of the grievance proceedings which led to the decision of the Minister of National Defence of March 25, 1997 now under judicial review. |
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[4] The affidavits and the investigation report constitute hearsay evidence and may be excluded on the basis of Rule 332(1). However, the applicant argues that the evidence of the investigators meets the criteria of "necessity" and "reliability" to allow hearsay evidence. In R. v. Khan, [1990] 2 S.C.R. 531, Justice McLaughlin wrote at page 546: "Necessity ... must be interpreted as `reasonably necessary'." In the words of Chief Justice Lamer in R. v. Smith, [1992] 2 S.C.R. 951, the principle of necessity will encompass various situations (at page 934): "What the situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available." |
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[5] It is not at all clear that the reluctance of an otherwise available witness to provide an affidavit constitutes necessity, particularly where the evidence is a collection of statements which are subjective, speculative and prejudicial. The statements which the investigators attribute to Mr. Dubois and Major Mezzabotta, even if they were relevant to this application for judicial review, appear to have been substantially incorporated in more moderate language, in the applicant's own affidavit. The applicant may cross-examine one or more of the respondent's affiants who address the same issues alluded to by Messrs. Dubois and Mezzabotta. The investigators' report was not introduced during the grievance process. The persons they interviewed both resigned from the military in 1994 and there is no evidence of any attempt to obtain their cooperation since that time. In addition, I am not satisfied that the statements they made to the investigators were within the scope of their official authority and admissions against interest. In my view, for all these reasons, the evidence of the investigators falls far short of the test of necessity and must be excluded in the traditional application of the hearsay rule upon which Rule 332(1) is based. |
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[6] The affidavits of the two investigators will be struck from the record. |
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FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1979-97
STYLE OF CAUSE: ANTHONY GREEN v. HER MAJESTY THE QUEEN IN RIGHT OF CANADA (MINISTER OF NATIONAL DEFENCE)
PLACE OF HEARING: TORONTO, ONTARIO DATE OF HEARING: 27 OCTOBER 1997 REASONS FOR JUDGMENT OF LUTFY, J. DATED: 4 NOVEMBER 1997
APPEARANCES:
PHILIP S. TINKLER FOR APPLICANT
GREGORY GRAHAM FOR RESPONDENT
SOLICITORS OF RECORD:
TINKLER MORRIS
TORONTO, ONTARIO FOR APPLICANT
GEORGE THOMSON
DEPUTY ATTORNEY GENERAL OF CANADA FOR RESPONDENT
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