Present: L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for alberta
Evidence ‑‑ Admissibility ‑‑ Hearsay ‑‑ Admissions ‑‑ Purchaser of getaway car used in robbery making certain statements to vendors ‑‑ Statements indicating that purchaser was the accused ‑‑ Whether statements hearsay ‑‑ If so, whether statements admissible as admissions of the accused ‑‑ Appropriate procedure to be followed in determining whether statements were made by accused ‑‑ Whether trial judge erred in use of statements ‑‑ If so, whether error resulted in substantial miscarriage of justice.
The appellant and a co‑accused were charged with robbery and attempted murder. Two armed men had robbed Brink's security guards as they were making a collection from a store in a mall, seriously wounding one of them. Witnesses were able to identify one of the robbers as the co-accused. The other robber was not identified. Outside the store, the robbers were pursued by another Brink's guard, and then got into a waiting car, which was driven by a third person. The getaway car had been purchased two days earlier from a married couple. A man who matched the appellant's physical and facial description had made two visits to their house before actually purchasing the car. The purchaser refused to give his name or complete a bill of sale and asked to borrow the couple's licence plate. Neither the husband nor the wife was able to make a positive photographic or dock identification. At trial the husband said that the appellant looked familiar, while his wife said he looked "vaguely familiar". Both testified that the man who bought the car told them that he worked in chain‑link fencing. The wife testified that the man said he had big dogs. The husband testified that the man said his dog was going to have pups. The admissibility of these statements of the purchaser is in question in this appeal. Subsequent evidence showed that the appellant had a large dog that was going to have pups and that he had been employed as a chain‑link fencer. The appellant's townhouse was searched. It had been used as a hideout by the appellant, the co‑accused and a third man. A city map was found on which there was traced a route from the mall to the point where the car was found abandoned. The trial judge found that it would be unsafe to find that the appellant had purchased the car on the basis of the identification evidence alone, but when all the circumstantial evidence was added, he was convinced beyond a reasonable doubt that the appellant was the purchaser of the car. He convicted the appellant as a party to the offences. The Court of Appeal upheld the convictions.
Held (McLachlin and Major JJ. dissenting): The appeal should be dismissed.
Per L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.: The issue in this appeal concerns the admissibility of the purchaser's hearsay statements as an admission of the accused. An out‑of‑court statement which is admitted for the truth of its contents is hearsay and is generally not admissible. Likewise, the statements of the purchaser in this case cannot be used as admissions (i.e. as admissions for the truth of their contents) unless they are admissible under an exception to the hearsay rule.
However, quite apart from the truth of their contents, the statements at issue here also have some probative value on the question of identity. The fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations. The more unique or unusual the representations, the more probative they will be on the issue of identity. The admission of this kind of evidence is not hearsay because the only issue is whether the statement was made, and the veracity, perception and memory of the witness relating the statement can be fully tested by cross‑examination.
The admissibility of admissions rests on the theory of the adversary system, namely that a party can hardly object that he had no opportunity to cross‑examine himself or that he is unworthy of credence except when speaking under sanction of oath. In determining admissibility, the general rule is that preliminary questions which are a condition of admissibility are for the trial judge in his or her capacity as the judge of the law rather than as the trier of fact. If factual questions must be resolved, a voir dire may be required. The applicable standard of proof in both civil and criminal cases for determining such preliminary matters is the balance of probabilities.
A preliminary issue as to the authenticity of a statement which is sought to be attributed to a party may also arise and may relate to whether the statement was actually made or whether it was made by the party against whom it is tendered. This preliminary determination that the statements were those of the accused, or that the accused was in a position to make the statement, is required before the statements can be accepted as evidence of their truth. As in questions of admissibility, the appropriate standard for determining a preliminary question of fact as to authenticity is proof on a balance of probabilities. The standard is the same in the two cases regardless of the fact that the preliminary determination is shifted to the fact-finding stage of the trial.
In light of this approach regarding the authenticity of admissions, if there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. In the second stage the contents are evidence of the truth of the assertions contained therein.
In this case there was evidence that it was the appellant who made the statements to the vendors of the getaway car. The trial judge should have considered whether this evidence proved on a balance of probabilities that the statements were in fact made by the appellant. The trial judge did not address this question in two stages but considered the statements along with other evidence in concluding that the Crown had proved the charges beyond a reasonable doubt. In view of the strength of the whole of the evidence, the difference in the relative probative value of the statements assuming their truth, compared with their probative value on the more limited basis, was so slight that no miscarriage of justice was occasioned by the trial judge's error.
Per McLachlin and Major JJ. (dissenting): The information said to identify the appellant as the person who bought the getaway vehicle in this case was not information which only the perpetrator of the offence or a small group of people could have known, but was information which could have been obtained by anyone who had cared to observe or inquire into the appellant's affairs. The inference of identity is merely one of several plausible inferences which may be drawn from the statements, which are accordingly inadmissible. The trial judge relied heavily on the inadmissible statements in concluding that the appellant was the person who had bought the getaway vehicle. The other evidence identifying him as the guilty person is not so clear that it can safely be said that the trial judge's erroneous reliance did not result in a miscarriage of justice.
Cases Cited
By Sopinka J.
Followed: R. v. B. (K.G.), [1993] 1 S.C.R. 740; referred to: R. v. O'Brien, [1978] 1 S.C.R. 591; R. v. Ferber (1987), 36 C.C.C. (3d) 157; R. v. Gauthier, [1977] 1 S.C.R. 441; Park v. The Queen, [1981] 2 S.C.R. 64; R. v. Minhas (1986), 29 C.C.C. (3d) 193; R. v. Reburn (1980), 55 C.C.C. (2d) 419; R. v. Carter, [1982] 1 S.C.R. 938.
By McLachlin J. (dissenting)
R. v. Ferber (1987), 36 C.C.C. (3d) 157.
Statutes and Regulations Cited
Criminal Code, R.S.C. 1970, c. C‑34, s. 21(2).
Authors Cited
McCormick, Charles Tilford. McCormick on Evidence, vol. 2, 4th ed. Edited by John William Strong. St. Paul, Minn.: West Publishing Co., 1992.
APPEAL from a judgment of the Alberta Court of Appeal (1991), 12 W.C.B. (2d) 239, upholding the accused's conviction on charges of robbery and attempted murder. Appeal dismissed, McLachlin and Major JJ. dissenting.
John A. Legge, for the appellant.
Peter Martin, Q.C., for the respondent.
The judgment of L'Heureux-Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ. was delivered by
Sopinka J. -- This appeal concerns the admissibility of certain statements introduced by the Crown in the appellant's trial on charges of robbery and attempted murder. The issues raised include whether the statements are hearsay, and if so, whether they are admissible as admissions, and the appropriate procedure for determining their admissibility.
I. The Facts
In a trial before judge alone, the appellant and his co-accused, Jean Guy Dipietro, were convicted of robbery and attempted murder on the basis of the following facts. On December 1, 1986 two armed men robbed Brink's security personnel as they were making a collection from a Calgary department store, located in a mall. The robbers shot at the guards, seriously wounding one of them. Witnesses were able to identify one of the robbers as Dipietro. The other robber was not identified.
Outside the store, the robbers were pursued by another Brink's guard. The robbers got into a waiting car, which already had its engine running. Neither robber got into the driver's seat. The trial judge accepted the opinion of witnesses that a third person was driving the car, a 1974 Plymouth Fury III.
The getaway car had been purchased two days earlier from Mr. and Mrs. Boutet. A man who matched the appellant's physical and facial description came to the Boutet house to buy the car, making two visits before he actually purchased it for $400.00 cash. The man stated that he just wanted the car for its motor which he would use in his truck, and that the car would not be driven. The purchaser asked to borrow the Boutets' licence plate, saying that he would return it. He also refused to give his name and declined to complete a bill of sale.
Neither Mr. nor Mrs. Boutet was able to make a positive photographic identification or a positive dock identification. At trial, Mr. Boutet's testimony about the purchaser of the car was that the appellant looked familiar. Mrs. Boutet testified that the appellant looked "vaguely familiar".
Both Mr. and Mrs. Boutet testified that the man who bought the car told them that he worked in chain-link fencing. Mrs. Boutet testified that the man said he had big dogs. Mr. Boutet also testified that the man said his dog was going to have pups. Subsequent evidence showed that the accused, Evans, had a large dog and that it was going to have pups and that Evans had been employed as a chain-link fencer. The admissibility of these statements (hereinafter referred to as "the statements") to Mr. and Mrs. Boutet is in question in this appeal.
The appellant's townhouse was searched. It had been used as a hide-out by the appellant, Dipietro and one Oresto Panacui. Dipietro and Panacui had escaped from the Calgary Remand Centre a few months earlier. A city map was found on the kitchen table. On the map there was traced a route from the mall to the point where the car was found abandoned.
II. Judgments Below
Court of Queen's Bench
The trial judge convicted Dipietro on the basis of eye-witness identification evidence at the scene of the crime.
The trial judge found that it would be unsafe to find that the appellant purchased the car on the basis of the identification evidence of Mr. and Mrs. Boutet alone. However, when all of the circumstantial evidence was added, the trial judge was convinced beyond a reasonable doubt that the appellant was the purchaser of the car.
The trial judge summarized this evidence as follows:
In addition, in the course of his conversation with Mr. and Mrs. Boutet, he revealed that he owned a big dog and more importantly, that the dog was going to have pups. Subsequent evidence showed that the accused Evans had a large dog and that it was going to have pups. The purchaser further revealed that he had been employed as a chain link fencer. The accused Evans had been employed as a chain link fencer. In addition, there was found in the townhouse, rented and occupied by the accused Evans, a map on which there was traced in pen a route leading from the southwest area of the Market Mall, where the robbery occurred, to Vienna Drive where the 1975 [sic] Fury III Plymouth automobile which was used as a getaway car in the robbery was found.
The residual weight of Mr. and Mrs. Boutet's photographic and dock identifications, their description of the man who purchased the car and the circumstantial evidence, taken as a whole, satisfy me beyond a reasonable doubt that the accused Evans was the person who purchased from Mr. Boutet the automobile that was used as the getaway car in the Brink's robbery and later abandoned.
Based on these facts, and the fact that the appellant provided the hide-out where the robbers stayed and planned the robbery, the trial judge convicted the appellant as a party under s. 21(2) of the Criminal Code, R.S.C. 1970, c. C-34.
Court of Appeal of Alberta
The appellant raised various grounds of appeal. One of them was that the trial judge erred in law in relying upon the hearsay statements made by the purchaser of the car as proof that the appellant was the purchaser.
The Court of Appeal rejected this ground of appeal. From the reasons, it is not clear whether the court held that the statements were not hearsay, or that they were hearsay but nonetheless admissible. The court stated:
It is argued that the trial judge erred in relying upon what is termed inadmissible hearsay evidence of the conversation between Mr. Boutet and the purchaser as it relates to the large pregnant dog and the purchaser's occupation of having been an installer of link fencing to prove that Evans purchased the getaway car from Boutet. In the absence of any other evidence it would have been perhaps improper for the trial judge to have used this evidence as proof of the truth of the contents of the conversation. However there is more. The Crown was able to prove by independent testimony that Evans in fact had a large pregnant dog and also that Evans had been employed as an installer of chain link fencing. Independent evidence also showed that Evans had for some weeks prior to the robbery and for approximately one month after the robbery rented a three bedroom townhouse in which was found amongst other things a map of the City of Calgary clearly outlining the route from the place where the robbery occurred to the place where the getaway car was found. While Evans did not give his name to Mr. and Mrs. Boutet he nonetheless volunteered sufficiently particular information which when proven, not by the conversation he had with Boutet, but independently, went to establish the identity of the purchaser as Evans.
When all of the above mentioned evidence is considered together, as the trial judge did, and as he must, there is ample evidence to conclude that the appellant Evans had purchased the getaway vehicle in question.
The Court of Appeal rejected the appellant's other grounds of appeal, and upheld the convictions.
III. Issues
While a number of issues were raised in the appellant's factum, the decision of this Court in R. v. B. (K.G.), [1993] 1 S.C.R. 740, intervened between the date on which the factums were prepared and the oral argument. While the parties maintained their respective positions as to whether the impugned statements were or were not hearsay, the principal submission of the appellant centered on the admissibility of the evidence as an admission of the accused. Although the Crown did not rely on R. v. B. (K.G.) to support the admissibility of the statements because no evidence was adduced at trial to enable the principles in that case to be invoked, the appellant submitted as his main argument that, as a result of that case, the evidence being hearsay could only be admitted if on a voir dire the trial judge as judge of the law found on a balance of probabilities that the statements were made by the accused. Inasmuch as this matter was not dealt with in the factums, supplementary written submissions on this point were invited by the Court and were duly received. As a result, the points which remain for decision are as follows:
1.Are the statements hearsay?
2.If the statements are hearsay, are they admissible as admissions of the accused?
3.What is the appropriate procedure to be followed in determining whether the statements were made by the accused?
4.Did the trial judge err in the use of the statements and, if so, did the error occasion a substantial miscarriage of justice?
IV. Analysis
1. Hearsay
An out-of-court statement which is admitted for the truth of its contents is hearsay. An out-of-court statement offered simply as proof that the statement was made is not hearsay, and is admissible as long as it has some probative value. See R. v. O'Brien, [1978] 1 S.C.R. 591, at p. 593.
The respondent argued that the statements are not hearsay because the fact that the appellant owned a large pregnant dog and had worked as a chain-link fence installer had been independently proved. This argument was apparently accepted by the Court of Appeal. The appellant argued that the statements are hearsay because they had no probative value unless assumed to be true. Each of these submissions is slightly off the mark.
The ultimate value of these statements was to prove that the appellant and the purchaser of the getaway car were one and the same person. There was independent proof that the appellant worked as a fencer, and that he owned a large pregnant dog. If the purchaser could be proved to have a large pregnant dog and have worked as a fence installer, this would suggest that the appellant was the purchaser. However, there is no proof that the purchaser owned a dog or worked as a fencer unless the statements made to the Boutets are assumed to be true. The statements cannot be used for the truth of their contents unless they are admissible under an exception to the hearsay rule.
That being said, the statements still have some probative value as non-hearsay. Quite apart from the truth of the contents, the statements have some probative value on the issue of identity. On the issue of identity, the fact that certain representations are made is probative as it narrows the identity of the declarant to the group of people who are in a position to make similar representations. The more unique or unusual the representations, the more probative they will be on the issue of identity. I emphasize that the statements are not being used as truth of their contents at this stage.
For example, if a declarant stated: "I have a tattoo on my left buttock which measures 1 centimetre by 1½ centimetres and resembles a four-leaf clover" and it was proved that the accused had such a tattoo on his left buttock, the identity of the group to which the declarant belonged would be narrowed to include the accused as the most likely person, and his family or intimate friends, who would be in a position to know this fact. The statement has probative value without assuming the truth of the statement because the mere fact that it was made tells us something relevant about the declarant that connects him to the accused.
R. v. Ferber (1987), 36 C.C.C. (3d) 157, provides an illustration of a case in which statements were admitted on the basis that the mere fact that they were made was probative on the issue of the declarant's identity. The accused killed his wife. The only issues were self-defence, accident and provocation. The Crown introduced evidence of a telephone call made to and received by a third party, as proof that the deceased was alive at the time of the call, but not as proof of the truth of the contents of the conversation. The identity of the deceased as the caller was therefore essential, but the witness was unable to swear to recognizing the deceased's voice. However, the intimate details related by the caller provided some evidence that the caller was the deceased, as this detail narrowed the identity of the caller to those people who would be able to relate the information disclosed by the caller. This did not require an assumption that the information was true. "It was from the intimate detail of the conversation that the jury was asked to decide who participated in the call" (at p. 160).
The point is summarized in McCormick on Evidence (4th ed. 1992), vol. 2, at pp. 51-52: "authentication may be accomplished by circumstantial evidence pointing to X's identity as the caller, such as if the communication received reveals that the speaker had knowledge of facts that only X would be likely to know."
The admission of this kind of evidence is not hearsay because the only issue is whether the statement was made, and the veracity, perception and memory of the witness relating the statement can be fully tested by cross-examination. Since the truth of the declarant's assertion is not in issue, deprivation of the right to cross-examine the declarant, on which rejection of hearsay is premised, is of no consequence.
2. Admissions
The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, "[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath" (Morgan, "Basic Problems of Evidence" (1963), pp. 265-66, quoted in McCormick on Evidence, supra, at p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.
3. Procedure for Determining Admissibility
The general rule is that preliminary questions which are a condition of admissibility are for the trial judge in his or her capacity as the judge of the law rather than as the trier of fact. See R. v. B. (K.G.), supra, at pp. 783-84. If factual questions must be resolved, a voir dire may be required. The applicable standard of proof in both civil and criminal cases is on a balance of probabilities: R. v. B. (K.G.), at p. 800.
A different view has been taken with respect to an issue as to the authenticity of a statement, written or oral, which is sought to be attributed to a party. Authenticity may relate to whether the statement was actually made or whether it was made by the party against whom it is tendered. In McCormick on Evidence, supra, at p. 54, the learned author states:
... authenticity is not to be classed as one of those preliminary questions of fact conditioning admissibility under technical evidentiary rules of competency or privilege. As to these latter, the trial judge will permit the adversary to introduce controverting proof on the preliminary issue in support of his objection, and the judge will decide this issue, without submission to the jury, as a basis for his ruling on admissibility. On the other hand, the authenticity of a writing or statement is not a question of the application of a technical rule of evidence. It goes to genuineness and conditional relevance, as the jury can readily understand. Thus, if a prima facie showing is made, the writing or statement comes in, and the ultimate question of authenticity is left for the jury.
This Court has taken the same approach with respect to the authenticity of statements alleged to have been made by the accused. In R. v. Gauthier, [1977] 1 S.C.R. 441, the accused was tried by judge alone and the Crown sought to introduce statements purportedly made by the accused to the police. A voir dire was held to determine whether the statements were free and voluntary. The trial judge ruled that [translation] "[o]n the voir dire, the fact of whether or not the accused made a statement must not be taken into consideration...". The trial judge admitted the statement, but acquitted the accused on the basis of a reasonable doubt about identity. Among other things, this reasonable doubt was based on the fact that at the voir dire the accused had denied making the statement, and the fact that the statement was not signed by the accused. The Quebec Court of Appeal dismissed the Crown's appeal.
The majority of this Court allowed the Crown's appeal. The main issue was whether the trial judge erred in considering the accused's evidence, given at the voir dire, in determining whether the identity of the declarant had been proved beyond a reasonable doubt. Pigeon J. (for the majority) agreed that the question of whether or not a statement is made does not go to admissibility, but held that the evidence on the voir dire is not part of the trial evidence, and should not have been considered by the trial judge in reaching his ultimate conclusion. Pigeon J. stated (at p. 448):
It should first be noted that the Court of Appeal correctly held that, on the voir dire, the trial judge did not have to decide whether the statement that the prosecution sought to introduce in evidence had actually been made, and whether it was true. In a trial by jury, it is for the jury to answer such questions. Consequently, the judge who hears the evidence on the voir dire gives a final ruling only on the admissibility of the statement in question: R. v. Mulligan [(1955), 20 C.R. 269], (Ontario Court of Appeal). When there is no jury and the same judge has to rule on both the admissibility of the evidence and its probative value, he must necessarily withhold his conclusion on the second point until the end of the trial. In fact, with regard to the question as to whether the statement was actually made and whether it is true, the judge presiding over a voir dire in a trial by jury is required to decide only whether there is evidence to be submitted to the jury; it is not for him to weigh such evidence. There is no provision authorizing a judge sitting alone to do otherwise or to make a final ruling on these questions before hearing the entire case.
See also Park v. The Queen, [1981] 2 S.C.R. 64, and R. v. Minhas (1986), 29 C.C.C. (3d) 193.
In R. v. Reburn (1980), 55 C.C.C. (2d) 419 (Alta C.A.), the accused was charged with murder and was tried by judge alone. A voir dire was held to determine the admissibility of a statement made by an unidentified man to a police officer in a telephone conversation. On the voir dire, the trial judge ruled that he would hear only the questions put to the caller by the police officer, and not the caller's responses to those questions. There was no direct evidence of who the caller was, and there were three people (besides the deceased) in the house when the call was made -- two men and one woman. The voice identification evidence was inconclusive. The trial judge ruled that the statement was inadmissible because he was not satisfied beyond a reasonable doubt that the accused had been identified as the caller. The Alberta Court of Appeal held that Gauthier was the proper authority. McGillivray C.J.A. stated (at p. 425):
In my view, in this case the learned trial Judge, having some evidence identifying the accused with the statement, ought to have considered whether he was satisfied the statement was voluntary. If he was satisfied he would admit it in evidence. His consideration of the further point, whether he was satisfied beyond a reasonable doubt that the accused made the statement, would come only at the end of the trial as part of his deliberations as the trier of fact. The consideration would, of course, be based upon all of the evidence then before him. [Emphasis in original.]
I agree with the above statement except as to the standard of proof. This requires some elaboration. Neither Gauthier nor Reburn dealt with the question of the use of the statement itself as evidence of authenticity. It follows from my previous discussion of hearsay that the assertions in the statement cannot be accepted as evidence as to their truth until there has been a preliminary determination that the statements were those of the accused. In making that determination, however, the mere fact that the declarant was in a position to make the statement may have probative value, in which case this can be considered along with other evidence. This raises the question of the standard of proof to be applied in determining the preliminary question.
In this respect I see no reason to require a higher standard of proof than is applied in determining preliminary questions of fact in respect of admissibility. The determination of a preliminary question of fact in respect of both authenticity and admissibility is a prelude to access to the contents of the statement as proof of the truth thereof. If the standard of proof on a balance of probabilities is appropriate to determine a preliminary question of admissibility, there is no reason to exact a higher standard due to the mere fact that the determination is shifted to the fact-finding stage of the trial. The appellant quite candidly conceded that this was the appropriate standard. It might be suggested that in the former case it is the trial judge in his or her capacity as judge of the law rather than as the trier of fact who determines the question, whereas in the latter case it is the trier of fact, either the judge or the jury. In my view, while this is a distinction between the two kinds of determination it is not a relevant distinction. This Court has affirmed that preliminary questions of fact by the trier of fact may be decided on a balance of probabilities. In R. v. Carter, [1982] 1 S.C.R. 938, the trial judge charged the jury in a conspiracy case that before resorting to evidence of the acts and declarations of co-conspirators of the respondent accused, the jury were obliged to determine in accordance with the criminal standard that the respondent was a member of the conspiracy charged. This Court allowed the appeal by the Crown on the ground that the trial judge had erred as to the standard to be applied to the preliminary question of membership in the conspiracy. The appropriate standard was on a balance of probabilities. The Court ruled that once this standard was satisfied the acts and declarations of co-conspirators were evidence admissible against the accused in accordance with the well-known exception to the hearsay rule.
In my opinion, this is the correct approach to be applied in respect of the authenticity of admissions. If there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. While the contents of the statement may only be considered for the limited purpose to which I have referred above in the first stage, in the second stage the contents are evidence of the truth of the assertions contained therein.
4. Application to this Case
In this case there was evidence that it was the appellant who made the statements to the Boutets. The trial judge should have considered whether this evidence proved on a balance of probabilities that the statements were in fact made by the accused. In this determination he could have relied on the fact that the statements to the Boutets were made. It would be a most unusual coincidence that the purchaser and the accused would each have these two characteristics in combination. If he ruled out coincidence, the trial judge was entitled to consider that this narrowed the group of persons who were in a position to make this statement to the accused or someone who knew this about the accused and had some reason to make the representation as if he were the accused. Considered in light of the other evidence to which I will refer, the most likely person to make the statement was the accused.
The trial judge did not address this question in two stages but considered the statements along with other evidence in concluding that the Crown had proved the charges beyond a reasonable doubt. As pointed out by counsel for the appellant, this may be explained on the basis of the fact that counsel for the accused (who was not counsel on the appeal) made no objection to the admissibility of the evidence. It is not clear from the learned trial judge's reasons whether he relied on the statements as if they were true or whether he made the limited use of them to which I have referred. He simply referred to them as part of the circumstantial evidence without mention of this distinction. In my view, the strength of the whole of the evidence is such that even if the trial judge did consider the contents of the statements for their truth without a preliminary finding of authenticity, this did not occasion a substantial miscarriage of justice. The other evidence may be summarized as follows:
1.The residence rented by the appellant two months earlier, ostensibly to house himself, his wife and his child, was found actually to be used as a hideout for two escaped felons, Dipietro and Panacui. The three sleeping bags on the living room floor suggested the residence was being used by three people. The appellant paid the rent on the residence both before and after the robbery.
2.The trial judge found that the robbery was committed by three persons -- two gunmen and a driver.
3.In the residence was found a City of Calgary map which had traced on it the getaway route from the Woodwards parking lot to a location where the getaway vehicle was found abandoned, and from there to an overpass crossing a major thoroughfare.
4.It was common ground that the getaway vehicle subsequently abandoned by the robbers was the same vehicle sold by the Boutets two days earlier.
5.The getaway vehicle was sold to a person who coincided with the physical description offered by the Boutets in terms of his age, height, weight, build, hair colour, mustache and facial features, which were said to be similar or familiar. The person lied about the use to be made of the vehicle.
In my view, the relative probative value of the statements, if one assumes their truth, as compared with the probative value on the more limited basis for which they were admissible without a preliminary finding of authenticity is so slight that, irrespective of the basis on which they were considered by the trial judge, the result would necessarily have been the same. In these circumstances, any error in law in considering the statements as evidence of the truth of their content did not occasion a substantial miscarriage of justice. The appeal is, therefore, dismissed.
The reasons of McLachlin and Major JJ. were delivered by
McLachlin J. (dissenting) -- I have had the advantage of reading the reasons of my colleague Justice Sopinka. I agree with him on the law. I cannot agree, however, with the conclusion he draws from the principles he states.
My colleague concedes that viewed one way, the statements in question are hearsay. However, he says they are admissible as a statement of facts identifying the speaker as X on the ground that the facts could have been known only to X or to a small group of people to which X belongs. He quotes McCormick's statement of the principle (McCormick on Evidence (4th ed. 1992), vol. 2, at pp. 51-52): "authentication may be accomplished by circumstantial evidence pointing to X's identity as the caller, such as if the communication received reveals that the speaker had knowledge of facts that only X would be likely to know."
The probative value of such statements depends on the proposition that the person to be identified (here the accused) is one of very few people who would be able to relate the information which was disclosed by the "speaker" (here the perpetrator of the crime). If many people could have made the statement, it loses its force as an indicator that the "speaker" or perpetrator of the offence is the accused. The case my colleague cites of a "speaker" who describes in detail an unusual tattoo on his left buttock -- a tattoo which also, it turns out, is possessed by the accused -- is an example in point. The statement identifies both the speaker and the accused as members of the very small group of persons who could have known about the tattoo. It would be highly unusual that a "speaker" would describe himself as having such a tattoo, and that a quite different person, the accused, would possess the same characteristic. Because this would be so extraordinary, there is a strong (although not conclusive) inference that they are one and the same person.
The same inference does not follow where the characteristic is one which anyone who cares to inquire may detect. Consider the case of a criminal who wishes to "finger" another for his crime. Knowing that the other person possesses a peculiar tattoo on his left buttock, such a person might indicate in the course of committing the crime that he, the perpetrator, possessed such a tattoo. If the evidence is that only very few people could have known of the tattoo, the inference, as noted above, is strong that the speaker and the person with the tattoo are one and the same. But if the evidence is that many people could have known about the tattoo, the inference is weak. Any one of those people, whether to shift the blame to another or for a variety of other reasons, might have mentioned it. It is for this reason that the cases in which this principle has been applied uniformly insist that the information related be information which only the accused could have known (McCormick's formulation) or which, at the very least, only a few people would have known. Thus, as my colleague points out, in R. v. Ferber (1987), 36 C.C.C. (3d) 157, at p. 160, intimate details related by the caller provided some evidence that the caller was the deceased, "as this detail narrowed the identity of the caller to those people who would be able to relate the information disclosed by the caller." (Emphasis added.)
This brings me to the information said to identify the accused as the person who bought the getaway vehicle in the case at bar. The person who picked up the getaway vehicle gave the vendor the information that he worked as a chain-link fencer and owned a large pregnant dog. That was not information which only the perpetrator of the offence could have known. Indeed, it was not information which only a small group of people could have known. It was, on the contrary, information which could have been obtained by anyone who had cared to observe or inquire into the accused's affairs. Accordingly, it does not fall within the rule as stated by McCormick and as applied in Ferber, supra.
Nor should it. A number of inferences may be drawn from the fact such a statement was made. One is that another chain-link fencer who owned a large pregnant dog (and there may be a number of such persons in a large city like Calgary) bought the car. Yet another inference is that the criminal, seeking to shift blame from himself to the accused Evans, went out of his way to tell the vendors falsely that he worked as a chain-link fencer and owned a large pregnant dog. Yet another is the inference which the trial judge drew -- that the person who bought the getaway car and the accused Evans were one and the same person. The fact that the inference of identity is merely one of several plausible inferences which may be drawn from the statement renders it, on the authorities, inadmissible. It does not have the necessary probative value to support a conviction. The danger of an erroneous inference is simply too great.
The trial judge relied heavily upon the inadmissible statements in concluding that Evans was the person who had bought the getaway vehicle. He recited the statements and referred to the fact that Evans possessed the mentioned characteristics. In summing up, he used this "circumstantial evidence", together with other identification evidence, to conclude that "the accused Evans was the person who purchased from Mr. Boutet the automobile that was used as the getaway car . . .".
The only question remaining is whether the other evidence identifying Evans as the guilty person is so clear that it can safely be said that the trial judge's erroneous reliance did not result in a miscarriage of justice. In my view, this cannot be said. It was essential to the Crown's case that Evans be shown to be the purchaser of the getaway vehicle. The only other evidence linking Evans with the getaway vehicle were the statements of the Boutets describing the age, height, weight, build, hair colour, mustache and facial features of the person who picked up the car as similar to those of the accused, who seemed ‘familiar' to them. These vague descriptions, without more, were unlikely to have established beyond a reasonable doubt that it was Evans who purchased the getaway car.
I would allow the appeal and direct a new trial.
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