Supreme Court Judgments

Supreme Court of Canada

McInroy et al. v. The Queen, [1979] 1 S.C.R. 588

Date: 1978-10-31

Howard Douglas McInroy and Edward Joseph Rouse Appellants;

and

Her Majesty The Queen Respondent.

1978: June 8, 9; 1978: October 31.

Present: Martland, Ritchie, Spence, Pigeon, Beetz, Estey and Pratte JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Evidence—Witness’s prior inconsistent statement to police—Admissibility—No error on part of trial judge in permitting cross-examination of witness concerning statement—Credibility—Canada Evidence Act, R.S.C. 1970, c. E-10, s. 9(2).

The majority of the Court of Appeal for British Columbia dismissed the appellants’ appeals from their convictions on charges of murder. The appellants appealed to this Court pursuant to s. 618(1)(a) of the Criminal Code upon a question of law on which Robertson J.A. had dissented.

A Crown witness, S, testified that she had a conversation with the appellant M but she could not recall it. The Crown applied under s. 9(2) of the Canada Evidence Act to cross‑examine S on a previous statement that she had given to the police. It was alleged that this statement was inconsistent with the evidence that she gave at the trial. In her statement to the police, S said that M told her he had killed “a snitch” who had put four people in jail and that he was being paid for the killing.

Following a voir dire, the trial judge initially rejected the Crown’s application to cross‑examine S, but, subsequently, after reconsideration, he reversed himself and decided to permit a cross-examination of the “adverse witness”, limited to those portions of her statement which pertained to conversations with the accused M. S was cross-examined before the jury in relation to the statement. Again she said she could not recall making the statement to the police, or if she made the statement whether or not it was true.

The Court of Appeal unanimously held that the trial judge had erred in permitting Crown counsel to cross-examine S concerning the statement. The Court of Appeal concluded that the trial judge was in error in ruling that the witness could be cross-examined by the Crown as an adverse witness.

[Page 589]

The majority of the Court of Appeal having held that the trial judge was in error in permitting cross-examination of S under s. 9(2), went on to hold that the statement of S to the police could properly be placed before the jury under the doctrine of past recollection recorded because she had testified that her statement represented what she believed to be true at the time she gave it even though she said she did not recollect her conversation with M at the time of the trial. The majority held that the statement was admissible as probative of the matter asserted in it. It was on the issue of the admissibility of the statement based on this ground that Robertson J.A. dissented and on the basis of that dissent the appellants appealed to this Court.

Held: The appeal should be dismissed.

Per Martland, Ritchie, Spence, Pigeon, Beetz and Pratte JJ.: Section 9(2) of the Canada Evidence Act is not concerned with the cross-examination of an adverse witness. The subsection confers a discretion on a trial judge where the party producing a witness alleges that the witness has made, at another time, a written statement inconsistent with the evidence being given at the trial. The discretion is to permit, without proof that the witness is adverse, cross-examination as to the statement.

The granting of the Crown’s application was a matter for the sole discretion of the trial judge and he had adequate grounds for exercising that discretion as he did. Having granted the application the Crown was entitled to cross-examine S before the jury. The trial judge was careful to explain the limited extent to which that cross-examination might be considered by the jury.

In view of the conclusion that there was no error on the part of the trial judge in permitting the cross-examination of S under s. 9(2), it was unnecessary to express any conclusion respecting the opinion of the majority of the Court of Appeal as to the legal basis upon which the statement of S could be placed before the jury and from which opinion Robertson J.A. dissented.

R. v. Milgaard (1971), 2 C.C.C. (2d) 206; Wolf v. The Queen, [1975] 2 S.C.R. 107, referred to.

Per Estey J.: Section 9(2) of the Evidence Act and the common law relating to the admissibility of prior inconsistent statements entitled the jury to take into their consideration the contents of the prior inconsistent statement not only on the issue of determining credibility of the witness, S, but also in determining the issues of fact arising in the trial to which the contents of the prior statement may be relevant. Put another way, once the prior inconsistent statement has been proven, either through the witness who has made the statement or by

[Page 590]

other evidence, the contents of the prior inconsistent statement become evidence before the tribunal of fact in the same way as the testimony during the trial by the witness in question forms a part of the record; and it is left to the trier of fact to determine which, if either, of the statements by the witness, that is the testimony in court or the prior statement, sets out the truth partially, totally, or not at all. It is both an error in law and an offence against common sense to instruct the jury that the witness’s prior statement, particularly when given in the circumstances of this case, may be considered by the jury only on the issue as to credibility of the witness, S, and must be disregarded on the issues of fact arising in this statement; and more precisely, that the jury must be told that the prior statement may not be considered by them as proof or even as some evidence relating to the matters asserted in that statement.

R. v. Golder, [1960] 3 All E.R. 457; R. v. Milgaard, supra; Greenough v. Eccles (1859), 5 C.B. (N.S.) 786; R. v. Harris (1927), 20 Cr. App. R. 144; R. v. Kadeshevitz, [1934] O.R. 213; R. v. Duckworth (1916), 37 O.L.R. 197; Deacon v. R., [1947] S.C.R. 531; Wright v. Beckett (1834), 1 Moo. & Rob. 414; D.P.P. v. Kilbourne, [1973] A.C. 729; Picken v. R., [1938] S.C.R. 457; Teper v. R., [1952] A.C. 480; R. v. Campbell (1977), 1 C.R. (3d) 309; Di Carlo v. United States (1925), 6 F. (2d) 364; United States v. De Sisto (1964), 329 F. 2d 929, referred to.

APPEAL from a judgment of the Court of Appeal for British Columbia[1] dismissing, by a majority, the appellants’ appeals from their convictions on charges of murder. Appeal dismissed.

T.L. Robertson, D. Acheson and R. Jatko, for the appellants.

M.R.V. Storrow, for the respondent.

The judgment of Martland, Ritchie, Spence, Pigeon, Beetz and Pratte JJ. was delivered by

MARTLAND J.—The appellants appeal to this Court pursuant to s. 618(1)(a) of the Criminal Code upon a question of law on which Robertson J.A., had dissented in the Court of Appeal for British Columbia. The majority of that Court dismissed the appellants’ appeals from their convictions on charges of murder.

[Page 591]

The facts are stated in the judgment of Chief Justice Farris, who delivered the reasons of the majority, and are as follows:

The principal witness for the Crown was Donald Jordan, a 17-year old boy who is black. His colour is material to the corroborative evidence. He testified that on the night of February 16th, 1975, he lived at 5195 Hoy Street in Vancouver, the residence of one Kathy St. Germaine and her five children, and one Eddie Wilson. On this particular evening Jordan was at home babysitting the five St. Germaine children. At about 9:00 or 10:00 p.m. the appellant McInroy came to the house to see Kathy St. Germaine and came in for a visit. During the visit McInroy told Jordan that Garnet Cameron had “snitched” on somebody. Jordan had known Cameron for some ten years. McInroy asked Jordan if he would go with him to the house where he believed Cameron to be to assist in getting him out of the house because he knew that Cameron was scared and would not come out of the house alone. Jordan agreed to go. Before they left McInroy went into the kitchen where there was a crossbow hanging in an open cupboard in plain view. He asked Jordan whether there were any arrows and Jordan produced some. McInroy took the arrows and the bow outside and fired two of the arrows into a shed outside the back door. The arrows were yellow and red with red feathers.

At about 10:30 p.m. Jordan and McInroy left the premises at Hoy Street; McInroy carried the cross-bow and Jordan carried the arrows and some wine. At that time Jordan was wearing blue and white shoes, green pants, white shirt and a brown long jacket. They drove in a black Ford to premises known as The Dairy Queen at Lakewood and Hastings in Burnaby. They parked in a parking stall and after a short while another man came to the car. McInroy got out of the car with the cross-bow. He introduced this person by the name of Eddie to Jordan. The person was the appellant Rouse.

After some conversation the three of them left the Dairy Queen in the car and went to another parking lot on Lakewood. They then went to McInroy’s place with a bottle of wine and the cross-bow and quiver of arrows and spent about a half to three-quarters of an hour there. They left McInroy’s apartment, taking with them the cross-bow and the arrows and went to Rouse’s apartment which was located across the street from McInroy’s. After a short time there they got into a blue Plymouth car, Rouse driving, McInroy in the front seat and Jordan in the back seat. They endeavoured to figure out a way to get Cameron out of the house where they believed him to be. The three of them concocted a story

[Page 592]

that Jordan was to tell to Cameron to persuade him to come outside.

They proceeded to Cameron’s house where he was with Linda Colwell. Jordan went in and told Cameron the concocted story with the result that Cameron came outside. There Cameron was confronted by McInroy and Rouse. McInroy pointed the cross-bow at him and asked him what he had told the police and Cameron replied that he had no other choice. Finally the four of them proceeded in the Plymouth car to the house on Hoy Street to check on the children. After doing so Jordan asked if he had to go too and McInroy said he did.

They then left in the car with Cameron on the floor in the back and with either McInroy or Rouse pointing the cross-bow at him. They proceeded to a location on Tillicum Road in Burnaby, went up to the railroad tracks and parked for a few minutes to have a conversation. They then forced Cameron out of the car, who at this time was dressed only in his shorts, McInroy having previously told him to take off his clothes. McInroy told Cameron to lie on the ground. Rouse moved the car because he said he didn’t want to get blood on it. McInroy then fired an arrow into Cameron’s neck. He got up and McInroy kicked him and he fell down. McInroy loaded another arrow and shot it into Cameron’s side. Cameron stumbled around and fell into the ditch, where he was subsequently found dead.

The three men, Jordan, McInroy and Rouse, then drove off. They threw out Cameron’s clothes from the car and after taking Cameron’s papers out of his wallet, threw it out the window. The cross-bow was taken apart and also thrown out.

They proceeded to Rouse’s house, spent some time there, and then drove to a bootlegger’s where they bought some whisky before returning to the Hoy Street house where the witness Kathy St. Germaine by this time was with Eddie Wilson.

Mrs. St. Germaine was called as a witness by the Crown. Her testimony leading to the application made by Crown counsel to the trial judge is described by Chief Justice Farris as follows:

Mrs. St. Germaine, a woman of thirty years of age, testified that on February 16th, 1975, she was living at 5195 Hoy Street with her five small children; her sister Maureen Young, Ronnie Jordan, his brother Donnie Jordan and Eddie Wilson. She said that on the evening of February 16th she went to a moving picture show

[Page 593]

with one Richard Jackson and left Donnie Jordan at home babysitting. She arrived home from the theatre at 1:30 a.m. and found only the small children there. Eddie Wilson came in about two o’clock and Donald Jordan and McInroy came in about 2:30 a.m. She testified that she had a conversation with Howie McInroy in the kitchen but she couldn’t recall it. Following the conversation she went for a ride with McInroy in a station wagon and took with them on the ride a brown paper bag and somewhere between Kingsway and Rupert Street, on the instruction of McInroy, she threw the bag out the window. Subsequently, she took the police to the location where she threw out the bag. She denied any knowledge of the contents of it.

It was at this stage that Crown counsel applied under s. 9(2) of the Evidence Act to cross-examine the witness St. Germaine on a previous statement that she had given to the police. It was alleged that this statement was inconsistent with the evidence that she had given at the trial. In the statement she said that when she and Howie were out in the kitchen he told her that he had killed “a snitch” who had put four people in gaol. He also said that he was being paid for doing it. On the voir dire and on her evidence in the presence of the jury, Mrs. St. Germaine claimed she could not recall making these statements.

Section 9 of the Canada Evidence Act, R.S.C. 1970, c. E-10, provides as follows:

9. (1) A party producing a witness shall not be allowed to impeach his credit by general evidence of bad character, but if the witness, in the opinion of the court, proves adverse, such party may contradict him by other evidence, or, by leave of the court, may prove that the witness made at other times a statement inconsistent with his present testimony; but before such last mentioned proof can be given the circumstances of the supposed statement, sufficient to designate the particular occasion, shall be mentioned to the witness, and he shall be asked whether or not he did make such statement.

(2) Where the party producing a witness alleges that the witness made at other times a statement in writing, or reduced to writing, inconsistent with his present testimony, the court may, without proof that the witness is adverse, grant leave to that party to cross‑examine the witness as to the statement and the court may consider such cross‑examination in determining whether in the opinion of the court the witness is adverse.

[Page 594]

The procedure to be followed in respect of an application under s. 9(2) has been recommended by Chief Justice Culliton in Regina v. Milgaard[2], at p. 221:

(1) Counsel should advise the Court that he desires to make an application under s. (2) of the Canada Evidence Act.

(2) When the Court is so advised, the Court should direct the jury to retire.

(3) Upon retirement of the jury, counsel should advise the learned trial Judge of the particulars of the application and produce for him the alleged statement in writing, or the writing to which the statement has been reduced.

(4) The learned trial Judge should read the statement, or writing, and determine whether, in fact, there is an inconsistency between such statement or writing and the evidence the witness has given in Court. If the learned trial Judge decides there is no inconsistency, then that ends the matter. If he finds there is an inconsistency, he should call upon counsel to prove the statement or writing.

(5) Counsel should then prove the statement, or writing. This may be done by producing the statement or writing to the witness. If the witness admits the statement, or the statement reduced to writing, such proof would be sufficient. If the witness does not so admit, counsel then could provide the necessary proof by other evidence.

(6) If the witness admits making the statement, counsel for the opposing party should have the right to cross-examine as to the circumstances under which the statement was made. A similar right to cross-examine should be granted if the statement is proved by other witnesses. It may be that he will be able to establish that there were circumstances which would render it improper for the learned trial Judge to permit the cross‑examination, notwithstanding the apparent inconsistencies. The opposing counsel, too, should have the right to call evidence as to factors relevant to obtaining the statement, for the purpose of attempting to show that cross-examination should not be permitted.

(7) The learned trial Judge should then decide whether or not he will permit the cross‑examination. If so, the jury should be recalled.

This procedure was followed by the trial judge in the present case. A voir dire was held during which Mrs. St. Germaine gave evidence. In consid-

[Page 595]

ering this evidence it is significant that Mrs. St. Germaine’s statement to the police was given on February 22, 1975. The trial, at which she gave evidence, occurred only about seven months later, between September 29 and October 6 of the same year.

What had led to the application to cross-examine Mrs. St. Germaine were the answers which she gave when being examined by counsel for the Crown:

Q. Did you have a conversation with Donnie Jordan and Howard McInroy?

A. Yes.

Q. Do you recall what that conversation was?

A. No, I don’t.

Q. All right. Did there come a time when you went into the kitchen?

A. Yes.

Q. Who entered the kitchen with you?

A. Howard McInroy.

Q. Howard McInroy?

A. Yes.

Q. Was Donnie Jordan present in the kitchen?

A. No.

Q. Did you have a conversation with Howie McInroy in the kitchen?

A. Yes.

Q. Would you tell the court what conversation you had with him?

A. I don’t recall.

Q. Can you recall any of it?

A. No.

The following extracts from her evidence given on the voir dire are of importance:

Q. Mrs. St. Germain, do you recall giving a statement to Constable Ross of the Burnaby R.C.M.P. on the 22nd of February, 1975 in the morning?

A. Yes.

Q. I am showing you a statement—or a document consisting of eleven pages. I would ask you first if you recognize the document. Would you examine that—all eleven pages, please?

[Page 596]

At this point you could just look through the document and see if your initials appear on all of those pages. Does your initials appear on each of those pages?

A. (Witness nods)

THE COURT: Would you answer please, madam?

A. Yes, it does.

MR. ROWAN:

Q. And does your signature appear on the bottom of the eleventh page?

A. Yes, it does.

Q. Just hold on to that still, please. Now, yesterday you will recall that you stated that you went into the kitchen in the early morning of February 17th, and Howie was in the kitchen of your home with you—do you recall giving that evidence yesterday?

A. Yes.

Q. And you gave evidence that you did not recall the contents or the substance of the conversation—do you recall giving that evidence yesterday?

A. Yes.

Q. And I would ask you if you would read the first page, particularly the paragraph:

“Last Monday morning about 2:30 a.m. or thereafter…”

—would you just read that now, please.

Now, would you also read the paragraph that starts at the bottom of the page commencing:

“Later Howie and I went out…” and down to the middle of the second page. Now, does that—reading those paragraphs that you read, does that assist your memory whatsoever in being able to tell us what conversation took place in the kitchen?

A. No.

Q. Pardon me?

A. No.

Q. Alright. I direct your attention specifically to the top of page two, and particularly the phrase:

“Howie told me that he had killed somebody”.

Now, you read that—I just want to ask you about the statement when you made it—whose handwriting is it in?

[Page 597]

A. I don’t know—Constable Ross, I think.

Q. You do recall giving a statement to Constable Ross and reading it over, and signing it?

A. Yes.

Q. Now, could you tell us why you don’t remember now the statement:

“Howie told me that he had killed somebody”.

A. I don’t know why—I don’t remember.

THE COURT: I’m sorry, I cannot hear you.

A. I don’t know why—I don’t remember. When I am going back on the conversation in the house, I can’t remember what conversation I had because I talked to Donny and I talked to Howie and I talked to Eddie Wilson, and I don’t remember now looking back on it.

MR. ROWAN:

Q. And did Howie say words to you on that occasion that he had killed somebody or not?

A. I don’t know.

Q. You don’t know. Do you recall saying anything to Howie about—“I don’t want to hear about it”?

A. I don’t recall that.

Q. You don’t remember—

THE COURT: I’m sorry, I can’t hear you.

A. I don’t recall that either.

MR. ROWAN:

Q. Do you recall Howie on that occasion saying to you that it was some snitch that was the victim of the crime?

A. No, I don’t remember Howie saying it.

Q. Do you recall in the conversation, any reference to the weapon being a cross-bow?

A. Not in that particular conversation.

…

MR. ROWAN:

Q. Back to your statement—the one you have before you, it is clearly said there in that statement:

“Howie told me that he had killed somebody.”

didn’t you—you clearly said that in that statement?

A. Yes, that’s correct.

Q. Now, was that or was that not true? You are under oath now. Was that or was that not true that Howie told you he had killed somebody?

[Page 598]

A. I don’t know.

Q. You don’t know because you forget?

A. I don’t remember the conversation I had with Howie.

Q. But you can remember this very simple thing—whether or not he told you that he had killed somebody?

A. No, I cannot remember him saying that.

Q. Do you recall him saying as follows:

“He went on to tell me that it was some snitch.”

You don’t recall that either, do you?

A. No, I don’t.

Q. Where did you get that information?

A. In the conversation of the three of us, I think—Donny Jordan—

THE COURT: I am sorry—the conversation of the three of us? Is that what you said?

A. Donny Jordan and Howie McInroy and I.

Q. Donny Jordan, Howie McInroy and yourself.

A. Yes.

Q. I see, and that’s when you learned about this word ‘snitch’—is that the idea? Is that what you are saying? Or that this snitch was—

A. Yes.

Q. From Howie and Donny—when you were talking to them?

A. Yes.

MR. ROWAN:

Q. I’m sorry, I didn’t hear that question and answer.

A. Yes.

THE COURT: When she was talking to them, I put it to her—Howie and Donny, she heard this expression.

MR. ROWAN:

Q. And that was in the living room then, was it? On the morning of Monday the 17th?

A. Yes.

Q. So it was known at that time that someone had been killed?

A. I don’t know if at that time—

Q. Well, obviously in that conversation the word snitch was used, and it must have been used in some connection. I suggest to you it was used in connection with the death of this man, Cameron.

A. Not necessarily.

[Page 599]

Q. Alright. What other explanation do you have?

A. I have no explanation except that they were talking about Garnet Cameron, and the word snitch came up, but I don’t remember whether at that time anything was said about anybody being killed—

THE COURT: I cannot hear you, madam.

A. I said at that time I don’t remember any conversation about him being killed.

Q. About who being killed?

A. Garnet Cameron.

Q. Well, didn’t you just say a moment ago, with reference to the snitch that Garnet Cameron was one and the same person? Perhaps I misheard you. Tell me if I heard you properly.

THE COURT: Read back the answer will you, Madam Reporter.

(REPORTER COMPLIED)

MR. ROWAN:

Q. Alright. So, this statement that Howie told you he killed somebody is something that you would remember, isn’t it? That’s something that a person cannot forget.

A. Well, I cannot remember him telling me that.

Q. Well, how can you forget it? You obviously said it here on February 22nd, and it—you obviously remembered it on the 22nd of February did you not? Did you remember it on February 22nd?

A. I don’t know—it’s in the statement, so at that time I had heard many things, and it was all very confusing—I don’t remember.

Q. Was what you said on the statement of February 22nd:

“Howie told me that he had killed somebody”

—untrue? Were you lying in that statement?

A. No, I wasn’t lying.

Q. Then it was true when you said it then, but you just don’t remember it now?

A. I don’t remember saying it in the statement.

Q. You wouldn’t have lied in the statement though?

A. No, I wouldn’t have lied.

Q. Would you turn over to page seven?

[Page 600]

THE COURT: That might be marked for identification on this voir dire.

MR. ROWAN: The witness has it. Perhaps it could be marked after, my Lord.

THE COURT: Alright.

MR. ROWAN:

Q. Now, towards the bottom of the page when you were being questioned—there is a following question:

“Q. Did Howie say anything about being paid for the killing?

A. Yes, he did. I don’t remember what he said, but he told me that he was getting paid for it.”

Now, do you recall being asked that question by Constable Ross and that being reduced to writing?

A. No, I don’t, I don’t recall.

Q. You don’t recall that at all, but that is your signature at the bottom of the page?

MR. JATKO: It is not a signature.

MR. ROWAN:

Q. I’m sorry, your initials at the bottom of the page?

A. Yes.

Q. And the next question:

“Q. Did he say how much?

A. No.”

Do you recall being asked that question by Constable Ross?

A. No, I don’t.

Q. You don’t recall giving that answer.

A. No.

Q. Now, after—assuming you had been asked that question, do you now recall whether or not Howie said anything about being paid for this killing?

A. No, I don’t.

Q. Now, is it—you just don’t recall having been asked those questions and having given those answers at all?

A. No, I don’t.

Q. I would just like you to have a look at the—have a look at page ten, the question there—a question was put to you at the top of that page:

“Q. Did they tell you where the crossbow and arrows had gone?

[Page 601]

A. Howie told me the crossbow was broken into pieces and thrown away. He didn’t say anything about the arrows. This was on Sunday night or early Monday morning.”

Now, do you recall being asked that question and giving that answer?

A. No, I don’t.

Q. You don’t remember that at all? You may have been asked that question and you may have given that answer, but you just plainly don’t remember it?

A. That’s right.

Q. Now, did Howie ever tell you about the crossbow being broken into pieces?

A. I don’t know.

Q. And if so, you don’t remember—is that right?

A. That’s right.

Q. And then at the bottom of page eleven, is written as follows:

“I have read this statement and it is true and correct.”

You read that and signed that, did you not?

A. Yes.

These questions and answers are very similar to those which are cited in the Milgaard case, at p. 218. The Court in that case held that cross-examination of a witness pursuant to s. 9(2) of the Canada Evidence Act was proper in respect of an eleven page statement which she had given to the police, which she admitted having given and which she admitted she had signed.

Following the voir dire, the trial judge in the present case initially rejected the Crown’s application to cross-examine Mrs. St. Germaine, but, subsequently, after reconsideration, he granted the application and Mrs. St. Germaine was cross-examined generally along the line of that pursued on the examination on the voir dire. He said:

I have concluded that I have exercised my discretion incorrectly, and I tell you now that I propose to reverse myself, and if Crown counsel wishes, I will permit a cross‑examination of the adverse witness, limited to her statement which was marked Exhibit “B” in the voir dire, to those portions of her statement only which pertain to conversations with the accused McInroy.

[Page 602]

I do not propose that the statement, as it is marked now, will go before the jury, and I simply propose that the Crown may put the statement to the witness, ask her if it refreshes her memory, and if she says, as she did yesterday, that it does not, then I will permit the Crown to put those portions to the witness pertaining to the conversations with McInroy, and if it does not refresh her memory, as it did not yesterday, she will simply have to be asked if it is true or not, and she will have to give whatever answer she gives.

Mrs. St. Germaine was cross-examined before the jury in relation to the statement. Again she said she could not recall making the statement to the police, that the appellant McInroy told her about the killing, about his being paid for the killing or as to who was with him when they had killed “the snitch”. At the conclusion of her examination-in-chief she gave the following answers to the following questions:

Q. Now, Mrs. St. Germaine, would you look over to the very bottom of the last page, that’s 11. Would you read the words that are just before your signature, and just after the last answer on that page. Would you read that to the jury, please?

A. “I have read this statement and it is true and correct.”

Q. And you read that particular statement there, “I have read this statement and it is true and correct,” and you signed your name, did you not?

A. Yes, I did.

Q. Now, in any of the questions, or in any of the answers I have read to you, were you lying?

A. No.

Q. If you weren’t lying, Mrs. St. Germaine, then you were telling the truth, weren’t you, at that time?

A. I was telling what I believed at that time.

Q. And you believe it to be the truth?

A. I’m sorry, I didn’t—

Q. And you believed it to be the truth?

A. Yes.

The statement to the police itself was not put in evidence.

In his charge to the jury the trial judge said:

Now, as to evidence concerning what she said in the statement, I must ask you to bear in mind that the only evidence you can consider from her is the evidence she

[Page 603]

gave in this courtroom. She has had questions and answers put to her that were made at some earlier time and she has, in most cases, rejected them in the sense that she says she simply cannot remember them. Those questions and answers put to her which she could not remember, do not constitute evidence because she has not accepted what has been said to her, and I must expressly direct you that those portions of that prior statement are not to be taken as evidence of the truth of the statements contained therein, but merely serve to test her credibility as a witness, so once again I repeat that in light of her continued inability to remember those questions and answers, they do not form part of her evidence and accordingly are not to be taken as evidence of the truth of what is contained therein, but are only to be considered by you in testing or determining her credibility as a witness.

The Court of Appeal unanimously held that the trial judge had erred in permitting Crown counsel to cross-examine Mrs. St. Germaine concerning the statement. The reason given by Chief Justice Farris is as follows:

In my view, the Judge was in error in ruling that the witness could be cross-examined by the Crown as an adverse witness. At the stage when the application was made initially to cross-examine on the basis of s. 9(2), the evidence of the witness can be summarized as follows:

(1) That McInroy and Jordan had returned to her house at approximately the same time as Jordan said they did.

(2) That she had a conversation in the kitchen with McInroy.

(3) That she had gone for a ride with McInroy and he had instructed her to throw a paper bag out of the window.

There could be no reason for the Crown to challenge these three items of evidence. The Crown’s purported purpose in using the previous statement was on the issue of her credibility. But credibility was not in issue. Mrs. St. Germaine had testified to nothing damaging to the Crown’s case. She had simply disclaimed any present relevant testimonial knowledge of the conversation with McInroy. In such a case a prior inconsistent statement of facts favourable to the proponent of the witness may not be used to impeach her.

With great respect, I am not in agreement that there was error in this case on the part of the trial judge. The basis for the Court’s conclusion that

[Page 604]

there was error is stated in the first sentence of the passage quoted “in ruling that the witness could be cross-examined by the Crown as an adverse witness”. Following this statement reference is made to the evidence given by Mrs. St. Germaine prior to questions and answers leading to the Crown’s application. Her earlier evidence was not adverse to the Crown’s position. The inference is that this prevents her from being regarded as an adverse witness.

Section 9(2) is not concerned with the cross-examination of an adverse witness. That subsection confers a discretion on a trial judge where the party producing a witness alleges that the witness has made, at another time, a written statement inconsistent with the evidence being given at the trial. The discretion is to permit, without proof that the witness is adverse, cross-examination as to the statement.

The task of the trial judge was to determine whether Mrs. St. Germaine’s testimony was inconsistent with her statement to the police. In my opinion he was properly entitled to conclude that it was. At trial Mrs. St. Germaine swore that she could not recall any part of the conversation with McInroy in the kitchen of her house on the night of the killing, although only some seven months earlier she had given to the police, in her written statement, the details of that conversation, including McInroy’s admission that he was the murderer. If her statement at trial as to her recollection was true, inconsistency would not arise, but the trial judge saw Mrs. St. Germaine and heard her evidence on the voir dire. It was quite open to him to conclude that she was lying about her recollection and to form his own conclusions as to why she was refusing to testify as to her true recollection. Chief Justice Farris says in terms that “the trial judge clearly did not believe her when she said she had a lack of recall”. This being so there was evidence of an inconsistency between what she said at the trial, i.e. that she had no recollection of a conversation, and what was contained in her written statement, i.e. a detailed recollection of it.

[Page 605]

In Wolf v. The Queen[3], this Court upheld a conviction for perjury against a person who had been the complainant on a charge of unlawfully causing bodily harm. He had given a signed statement to the police in connection with that charge. At the preliminary hearing he said that he could not remember the events described in the statement. The issue before this Court was as to whether his evidence at the preliminary hearing was given “with intent to mislead” within s. 120 of the Criminal Code. This Court held that the case was not one of mere error, honestly made, but that the circumstances justified the conclusion that the failure of memory was dishonest and deliberately asserted to prevent the Court from arriving at a decision on credible evidence.

The granting of the Crown’s application was a matter for the sole discretion of the trial judge and in my view he had adequate grounds for exercising that discretion as he did. Having granted the application the Crown was entitled to cross-examine Mrs. St. Germaine before the jury. The trial judge was careful to explain, in the passage I have already quoted, the limited extent to which that cross-examination might be considered by the jury.

The majority of the Court of Appeal, having held that the trial judge was in error in permitting cross-examination of Mrs. St. Germaine under s. 9(2), went on to hold that the statement of Mrs. St. Germaine to the police could properly be placed before the jury under the doctrine described by Wigmore as “past recollection recorded” because she had testified that her statement represented what she believed to be true at the time she gave it even though she said she did not recollect her conversation with McInroy at the time of the trial. Reference was made to English authority permitting the receiving in evidence of a memorandum by a witness who, by the aid of it, can only recall that some event occurred and that he made a truthful memorandum of it. The majority held that the statement was admissible as probative of the matter asserted in it.

[Page 606]

It was on the issue of the admissibility of the statement based on this ground that Robertson J.A. dissented and it is on the basis of that dissent that the appellants appealed to this Court.

In view of the conclusion which I have already expressed that there was no error on the part of the trial judge in permitting the cross-examination of Mrs. St. Germaine under s. 9(2), it is unnecessary to express any conclusion respecting the opinion of the majority of the Court of Appeal as to the legal basis upon which the statement of Mrs. St. Germaine could be placed before the jury and from which opinion Robertson J.A. dissented.

In my opinion the appeal should be dismissed.

ESTEY J.—I have had the opportunity of reading the reasons for judgment by my brother, Mart-land J., and with respect concur in his conclusion that the appeal should be dismissed. I differ only from the position taken by Martland J. in that, in my view of s. 9 of the Evidence Act and of the common law relating to the admissibility of prior inconsistent statements, the jury is entitled, and should have been so instructed here, to take into their consideration the contents of the prior inconsistent statement not only on the issue of determining credibility of the witness, St. Germaine, but also in determining the issues of fact arising in the trial to which the contents of the prior statement may be relevant. Put another way, once the prior inconsistent statement has been proven, either through the witness who has made the statement or by other evidence, the contents of the prior inconsistent statement become evidence before the tribunal of fact in the same way as the testimony during the trial by the witness in question forms a part of the record; and it is left to the trier of fact to determine which, if either, of the statements by the witness, that is the testimony in court or the prior statement, sets out the truth partially, totally, or not at all. It is in my respectful view both an error in law and an offence against common sense to instruct the jury that the witness’s prior statement, particularly when given in the circumstances of this case, may be considered by the jury only on the issue as to credibility of the witness, St. Germaine, and must be disregarded on the issues of fact arising in this statement; and, more precisely,

[Page 607]

that the jury must be told that the prior statement may not be considered by them as proof or even as some evidence relating to the matters asserted in that statement.

My brother, Martland J., has set out the salient facts and therefore, for my purposes, only the following short portion of the evidence of the witness, St. Germaine, need be reproduced:

Q. Did you have a conversation with Howie McInroy in the kitchen?

A. Yes.

Q. Would you tell the court what conversation you had with him?

A. I don’t recall.

Q. Can you recall any of it?

A. No.

together with:

Q. Now, Mrs. St. Germaine, would you look over to the very bottom of the last page, that’s 11. Would you read the words that are just after the last answer on that page. Would you read that to the jury, please?

A. “I have read this statement and it is true and correct.”

Q. And you read that particular statement there, “I have read this statement and it is true and correct”, and you signed your name, did you not?

A. Yes, I did.

Q. Now, in any of the questions, or in any of the answers I have read to you, were you lying?

A. No.

Q. If you weren’t lying, Mrs. St. Germaine, then you were telling the truth, weren’t you, at that time?

A. I was telling what I believed at that time.

Q. And you believed it to be the truth?

A. I’m sorry, I didn’t—

Q. And you believed it to be the truth?

A. Yes.

The rule is of long standing in the law of evidence that documentary evidence will be admitted through a witness in the witness box who, although the witness cannot recall the substance of the document or perhaps the precise event

[Page 608]

described or recorded therein, is able to swear to its truth at the time of the trial. Such documents may take the form of business records or deeds where the witness has either made the entry in the document or signed the instrument, acknowledging execution or other event. Where time has elapsed or where the witness in his daily life participated in a large number of such events or transactions, it is entirely unrealistic to expect a witness to say, or indeed to believe him if he did say, that upon examining the instrument he was able to recall his entry or the event. The law in acknowledging these realities has long recognized the procedure whereby the witness may incorporate in his testimony the contents of such deeds or documents when he adopts those contents as part of his testimony.

Here, however, we do not have a witness who adopts the contents of the prior statement signed by her; she simply acknowledges the fact that she signed the statement but has not (the Court of Appeal respectfully to the contrary) adopted it in the witness box as being the truth as she now sees it. The stone wall erected by the witness between herself and the questioner is epitomized in the following excerpt from the transcript:

Q. Can you read the next question:

“Q. Did Howie say anything about being paid for the killing”—or “this killing”?

A. Yes he did. I don’t remember what he said but he told me that he was getting paid for it.”

Were you asked that question and did you give that answer?

A. I don’t ever remember being asked that question.

Q. If you had given that answer, would that answer be true?

A. I don’t know.

For whatever reason, the witness clearly indicates that she does not adopt the prior statement although she acknowledges signing it, and indeed initialing every page; her simple recourse is that she doesn’t know. Robertson J.A., dissenting in the Court of Appeal of British Columbia, concluded that the statement not being adopted in the testimony of the witness St. Germaine by her expres-

[Page 609]

sion of belief in it, cannot be admitted. He would have directed a new trial on the simple ground that the admission of the statement offends the basic rule of evidence that “no evidence is receivable in any Court except that given upon oath or affirmation”. Some authorities have indeed gone further and rejected prior sworn statements on the simple principle that admissible evidence is only that which is given under oath in court. (R. v. Golder[4].)

The majority of the Court of Appeal also concluded that the prior statements of the witness St. Germaine should not have been admitted in evidence pursuant to s. 9(2) of the Canada Evidence Act even for the limited purpose of determining the credibility of the witness by the jury. The majority reached this conclusion because the evidence of the witness was not hostile to the case for the Crown and the credibility of the witness was not in issue. The majority went on to find the statement to be admissible, however, under the doctrine of past recollection recorded.

The prior recorded statement of the witness was here admitted into evidence following the procedure prescribed in s. 9(2) of the Canada Evidence Act. The procedure followed at trial here was described in Regina v. Milgaard by Culliton C.J.S.[5] In refusing leave (1972) 4 C.C.C. (2d) 566, this Court declined to express “a view as to whether, before granting the leave to cross-examine provided for in s. 9(2) of the Canada Evidence Act, the Court is required to conduct a voir dire as to the circumstances in which the statement in writing was obtained”. In my respectful view, the analysis of s. 9(2) by the Saskatchewan Court of Appeal is both correct in law and practical in its result. The trial judge followed such practice here and in doing so, correctly applied s. 9(2). The question now directly raised is what is the effect to be given in law to the contents of the prior inconsistent statement made by the witness, St. Germaine. Section 9(2) was added to the Canada Evidence Act in 1968 (1968-69 (Can.), c. 14, s. 2).

[Page 610]

It comes into the Act without legislative history. The subsection has not been subjected to judicial analysis to my knowledge from the side of the question raised in this appeal. The subsection, while providing a procedural mechanism for the admission of the prior contradictory statement, is silent as to the substantive use, if any, to which such evidence may be put. Taken by itself and in isolation from the judicial and academic debates of the past, the section in my view supports the simple interpretation that, given their plain meaning, the words adopted by Parliament reveal an intention that the evidence is, upon compliance with the prescribed procedure, admitted to the record for application by the tribunal in the same way as other evidence and without any specific limitation.

In other provisions in the Canada Evidence Act, as for example s. 30(1), evidence of a particular kind or from a specific source is made admissible without any assertion as to the use, limited or unlimited, to which it may on proper admission be put. Such provisions have not been construed by the courts so as to curtail the usefulness or the extent of the application of such evidence. It remains then to be seen whether s. 9(2) must, in its proper interpretation, be influenced by the terminology of s. 9(1) and perhaps by its judicial interpretation in the past. Subsection (1) creates a two-stage process:

(a) Should the witness, in the opinion of the Court, ‘prove adverse’ to the party ‘producing’ the witness, such party may contradict the witness by ‘other evidence’; and,

(b) ‘By leave of the Court’ that party may also prove prior statements inconsistent with the witness’s testimony, after the witness is acquainted with the prior statements and the circumstances in which made and after the witness has been asked whether or not the witness made such statement.

(Notwithstanding the presence of “or” in the subsection prior to the reference to the need for the leave of the court relating to the prior inconsistent statements, it is clear that in subs. (1) all this must follow a determination that the witness is adverse. The transposition or interchangeability of “and” and “or” has plagued legislative draftsmen before.

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(Vide Maxwell, The Interpretation of Statutes (12th ed.) p. 232. Vide also Greenough v. Eccles[6], (per Williams J. p. 802.)) The only link between the two subsections of s. 9 is the concluding provision in subs. (2) enabling the Court to take into consideration in the process of forming an opinion as to whether a witness is ‘adverse’ under subs. (1), any cross‑examination permitted under subs. (2).

Section 9(1) of the Canada Evidence Act is the present day version of s. 22 of the Common Law Procedure Act of the United Kingdom, 1854, and has formed part of the laws of evidence in criminal proceedings in this country since its enactment in 1869 in the Criminal Law Procedure Act (S.C. 32-33 Vict., c. 29, s. 68). Since the passage of this legislation, the courts have been repeatedly engaged in attempts to determine whether the statute simply codified the then existing common law or whether the statute went further and established additional rights of cross-examination and new sources of substantive evidence. It is at least clear that where a witness is declared to be adverse and has denied the truth of the prior statement, the prior statement may be admitted into evidence for the purpose of determining the credibility of the witness. However, the effect of the section as it has been interpreted is to allow the statement to be put before the trier of fact for the limited purpose of negating the witness’s credibility so that in substance, the jury is left with nothing if they believe the prior statement was in fact made by the witness and that it countermands the testimony given in open court. Rex v. Leonard Harris[7], at p. 149, which is discussed in Rex v. Kadeshevitz[8], per Riddell J. at p. 219; R. v. Golder, supra, p. 457; R. v. Duckworth[9]. In this Court the effect of s. 9(1) was discussed by Kerwin J., as he then was, in Deacon v. R.[10], at p. 534:

The fact that the sketch was put in as an exhibit, and therefore the writing, does not take the exhibit out of the category of something merely going to the credibility of the witness and raise it to the status of something that as

[Page 612]

against the accused is to be taken as evidence of the truth of the statements contained in the writing. A contrary proposition would be entirely foreign to our criminal law.

Rand J. spoke to the same effect at pp. 537-538:

That such statements generally are limited to credibility and cannot be used as evidence of the truth of the facts to which they relate, is well established: R. v. Dibble, 1 Cr. App. R. 155; R. v. Harris, 20 Cr. App. R. 144; R. v. Francis & Barber, [1929] 3 D.L.R. 593, 51 Can. C.C. 343. It is quite true that it may be difficult to dissociate the matters of such statements from the facts brought before the jury by the witness and to nullify the influence they may have on the minds of the jurors in dealing with the evidence as a whole; but anything short of this would expose a person to a fabricated account of events, too dangerous to risk. But the whole field of cross-examination, in the discretion of the court, is opened and the matters of the statement can thus be brought within the test of the testimonial response of the witness. This might be taken as a reason for leaving all the facts, including the statement, to the consideration of the jury, but the long experience of the courts is against it.

Twenty years prior to the introduction of the Common Law Procedure Act, Denman C.J. in Wright v. Beckett[11], at p. 419, discussed the common law rule under which a witness on being found hostile by the court, could be cross-examined by the party calling the witness, and then observed in connection with prior inconsistent statements:

The other danger is, that the statement, which is admissible only to contradict the witness, may be taken as substantive proof in the cause. But this danger equally arises from the contradiction of an adverse witness: it is met by the Judge pointing out the distinction to the jury, and warning them not to be misled. It is not so abstruse but that Judges may explain it, and juries perceive its reasonableness; and it is probable that they most commonly discard entirely the evidence of him who has stated falsehoods, whether sworn or unsworn.

Following the Common Law Procedure Act and its criminal law parallel, the courts continued to apply the rule of Wright v. Beckett, supra, without any critical analysis of what is now s. 9(1);

[Page 613]

although at least one judge in Greenough v. Eccles supra, acknowledged that the status of prior inconsistent statements was “to some extent an unsettled point” at common law. (Williams J. at p. 802).

Before dealing in detail with the phraseology of s. 9, it may be helpful to consider the basic evidentiary principles. The primary test of admissibility is, of course, relevance, and as Lord Simon said in D.P.P. v. Kilbourne[12], at p. 756: “Evidence is relevant if it is logically probative or disprobative of some matter which requires proof; or in the negative sense, in the words of Duff C.J., evidence which has “no real pertinency as to any issue between the Crown and the accused…” is to be excluded. Picken v. R.[13], at p. 458. In this appeal the evidence in issue consists of a statement by the witness, St. Germaine, that the accused had told her:

(a) he had killed somebody;

(b) it was a ‘snitch’ who had put four people in jail;

and

(c) the accused had been paid to do the killing.

It must surely pass without debate that such testimony is relevant and hence, admissible, subject to whatever exclusionary principles which may apply. The basic exclusionary rule is of course the rule against hearsay evidence which has been defined by Cross in his textbook on evidence (4th ed., 1974, at p. 6) as “a statement other than one made by a person while giving oral evidence in the proceedings”. It has been said by many learned authors that the exclusionary rule is based upon a denial of an opportunity to cross-examine the maker of the statement and the absence of the oath at the time of the making. Vide Phipson on Evidence, 12th ed., 1976, para. 636, at p. 273 and Cross on Evidence, supra, p. 415. The hearsay rule is generally illustrated in cases where the statement in question is made by a third party not in the witness box to the witness; hence the discussion

[Page 614]

in Teper v. The Queen[14], at p. 486 in the judgment of Lord Normand:

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 demeanor would throw on his testimony is lost.

There are many instances where the courts have ruled out statements by third parties to the witness where the statement has been recorded and made under oath so that the presence or absence of the oath on the occasion of the prior statement does not appear to be the critical test; see for example R. v. Campbell[15]. Here, however, the speaker of the “hearsay” is indeed in the witness box available for cross-examination and subject to the scrutiny of the trier of fact. If anything more need be said, attention could be drawn to several exceptions to the hearsay rule where necessity, such as the death of the maker of a statement has led to the invention of a series of exceptional rules. I have in mind dying declarations, declarations against interest, and the res gestae exception.

Much has been written over the last 50 years on the proper characterization in the law of evidence of prior inconsistent statements and the position of these statements under the hearsay rule. In Arch-bold, Pleading, Evidence & Practice in Criminal Cases (39th ed., 1976) at pp. 692-3 it is stated:

It is submitted that the rule has been correctly formulated by Professor Cross: “Express or implied assertions of persons other than the witness who is testifying, and assertions in documents produced to the court when no witness is testifying are inadmissible as evidence of that which is asserted” (Cross, Evidence, 4th ed., p. 387). A witness’s own previous statements are not excluded in this formulation of the rule. A statement by witness X when narrated by witness Y may however fall within the prohibition.

The observations of Lennox J.A. in Rex v.

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Duckworth[16], at p. 253, are on point:

It has often been said, and might be repeated in this case: “Once the statements are repeated in Court they cannot be effaced from the mind of the jury.” It is all true; and no caution, and no explanation of the law of evidence, that any Judge could give, could make it otherwise. But, all the same, it is express statutory law that inconsistent statements of adverse witnesses may be disclosed, and the preponderance of judicial opinion was only crystallised in the statute, after almost centuries of discussion and with clear apprehension and full notice and knowledge that when disclosed it must sometimes happen, and sometimes with a measure of rough justice too, and none the less, perhaps, because the Judge has learnedly and laboriously dwelt upon the fine distinction between evidence of the statement and evidence of the facts stated, that some alert juryman, unlearned in the law, will say: “I can’t just make it out, the Judge says it’s evidence and it isn’t evidence, and there was a mighty lot of fuss about it, so it must be important, but I tell you we know this much anyway, it just fits snugly with things we all know are true.”

The English Criminal Law Revision Committee, under the chairmanship of Davies L.J., in its Eleventh Report on Evidence (General), 1972, at p. 149 observed that the rule permitting the use of the prior inconsistent statement on the issue of credibility of the witness but prohibiting the use of the statement for the proof of the matters therein asserted is “wholly unrealistic and difficult for a jury to appreciate”. The American judicial view is predominantly to the same effect. In Di Carlo v. United States[17], Justice Learned Hand wrote at p. 368 of the situation as it prevailed under the common law where the court has granted permission to cross-examine upon finding a witness to be hostile:

Not only may the questions extend to cross-examination, but, if necessary to bring out the truth, it is entirely proper to inquire of such a witness whether he has not made contradictory statements at other times. He is present before the jury, and they may gather the truth from his whole conduct and bearing, even if it be in respect of contradictory answers he may have made at other times…

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The possibility that the jury may accept as the truth the earlier statements in preference to those made upon the stand is indeed real, but we find no difficulty in it. If, from all that the jury see of the witness, they conclude that what he says now is not the truth, but what he said before, they are none the less deciding from what they see and hear of that person and in court. There is no mythical necessity that the case must be decided only in accordance with the truth of words uttered under oath in court.

Certiorari was denied by the United States Supreme Court, 368 U.S. 706. Friendly J., giving the judgment of the Court in United States v. De Sisto[18] (certiorari denied, 377 U.S. 979) makes the same point:

The rule limiting the use of prior statements by a witness subject to cross-examination to their effect on his credibility has been described by eminent scholars and judges as ‘pious fraud’, ‘artificial’, ‘basically misguided’, ‘mere verbal ritual’, and an anachronism ‘that still impede(s) our pursuit of the truth.’ …The sanctioned ritual seems peculiarly absurd when a witness who has given damaging testimony on his first appearance at a trial denies any relevant knowledge on his second; to tell a jury it may consider the prior testimony as reflecting on the veracity of the later denial of relevant knowledge but not as the substantive evidence that alone would be pertinent is a demand for mental gymnastics of which jurors are happily incapable. Beyond this the orthodox rule defies the dictate of common sense that ‘The fresher the memory, the fuller and more accurate it is… Manifestly, this is not to say that when a witness changes his story, the first version is invariably true and the later is the product of distorted memory, corruption, false suggestion, intimidation, or appeal to sympathy… [but] the greater the lapse of time between the event and the trial, the greater the chance of exposure of the witness to each of these influences.’

It is of course anomalous that a witness may upon cross-examination contradict his evidence‑in-chief whereupon a jury or a judge sitting alone will take the evidence of the witness both in chief and on cross-examination under advisement in ascertaining the truth. However, if the witness denies a prior proven statement, the trier of fact, according

[Page 617]

to the observations of the Court in Wright v. Beckett, supra, may, in attempting to discern the truth, make use of the prior inconsistent statement only in determining whether to believe the witness’s evidence in court. The trier may then find that the testimony of the witness given in court is not credible and none of his statements will then be applied in the determination of the truth.

In Cross on Evidence, supra, the learned author at pp. 416-7 makes this observation concerning the restricted use of the prior statement:

The objections to the reception of prior inconsistent statements as evidence of the facts stated are that the statements were not made on oath and the witness swears that they are untrue. The court and jury will generally be well advised to ignore both the statement and the testimony, but, in rare cases, such as those in which the witness has been “got at” since he made the statement, there may be excellent reasons for accepting it as true.

In Wigmore on Evidence, vol. 3A (Chadbourn rev. 1970) para. 1018(b), after setting out the rule in Deacon v. R., supra, the author goes to the heart of the issue:

It does not follow, however, that Prior Self-Contradictions, when admitted, are to be treated as having no affirmative testimonial value, and that any such credit is to be strictly denied them in the mind of the tribunal. The only ground for doing so would be the Hearsay rule. But the theory of the Hearsay rule is that an extrajudicial statement is rejected because it was made out of Court by an absent person not subject to cross‑examination (post, 1362). Here, however, by hypothesis the witness is present and subject to cross-examination. There is ample opportunity to test him as to the basis for his former statement. The whole purpose of the Hearsay rule has been already satisfied. Hence there is nothing to prevent the tribunal from giving such testimonial credit to the extrajudicial statement as it may seem to deserve. Psychologically of course, the one statement is as useful to consider as the other; and everyday experience outside of court-rooms is in accord.

To the same effect, vide Professor E.M. Morgan, “Hearsay Dangers and the Application of the

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Hearsay Concept” 62 Harv. L. Rev. 177, at p. 196. As in the case of Wigmore on Evidence, the learned author goes on to conclude: “Consequently there is no real reason for classifying the evidence as hearsay”. Finally, McCormick on Evidence (2nd ed. 1972) joins the almost unanimous parade of legal writers when the author states at pp. 603-604:

It is hard to escape the view that evidence of a previous inconsistent statement, when declarant is on the stand to explain it if he can, has in high degree the safeguards of examined testimony. Allowing it as substantive evidence pays an added dividend in avoiding the ritual of a limiting instruction unlikely to be heeded by a jury. Accordingly, jurisdictions which shy away from admitting prior statements of witnesses generally may not hesitate to admit when the statement is inconsistent with already-given testimony.

As I have pointed out, the common law rule permitted the cross-examination of a witness called by the party if the court found the witness to be hostile. Such cross-examination included prior inconsistent statements. At least one authority in the prestatute period considered the cross-examination to be evidence admissible on the issue of the truth of the matters asserted in the prior statement rather than being merely admissible on the limited issue of credibility of the witness. Chief Baron Pollock, with the concurrence of Baron Parke, stated, in discussing the common law rule in Attorney General v. Hitchcock[19], at p.261:

If you ask a witness whether he has not made a certain statement which would be material, and opposed to part of his testimony, you may then call witnesses to prove that he has made the statement, and the jury are at liberty to believe either the one account or the other. (Emphasis added.)

Whatever may be the correct interpretation of s. 9(1) (in these proceedings it is not necessary to determine that question), there is nothing contained in subs. (1) which has any controlling influence over the provisions of subs. (2). Furthermore, there is nothing in the wording employed in subs.

[Page 619]

(2) which limits the use or application of the contents of prior inconsistent statements admitted in the manner prescribed in s. 9(2), in the determination of the truth of the matters therein asserted. Put more specifically, in the context of these proceedings, there is nothing in subs. (2) which indicates that the subsection is procedural only and that evidence thereby adduced is inadmissible on the substantive issues in the proceedings.

Section 9(2) of the Evidence Act then falls to be examined not in the light of the old common law rule and the cases decided thereunder, but as to what the proper interpretation of the statutory provision may be. Nowhere does the legislature reveal an intention to limit the impact of s. 9(2) to procedural or mechanical matters only. Certainly nothing emerges from the terminology of the two subsections to indicate a positive intention to preclude the application of these provisions to substantive law or principle. It follows therefore that, unencumbered by the earlier cases under the common law, the proper interpretation of the statute emerges, that is to say matters elicited on cross-examination including the existence of the prior inconsistent statement form part of the evidence going to the trier of fact for such application as that tribunal might make of all such evidence in reaching conclusions on the facts.

The evidentiary question here to be answered is very narrow. The prior statement has been recognized by the witness, St. Germaine, as her own and the statement has been proven in accordance with the standards of evidence applicable thereto. The issue is simply what effect may be given to this statement by the jury. In my view, the law as enunciated in Deacon v. R., supra, appears to flow from the state of affairs prevailing under the common law and, as adopted in the United Kingdom authorities, as being the continuing principle to be applied after the advent of what is now s. 9(1). Section 9(2) did not come into the law until 1968, long after the Deacon case was settled. In my view, the proper interpretation of s. 9(2) permits the trier of fact, once the procedural requirements of the subsection have been met, to take into its appreciation all the testimony given by the witness including his explanations and denials with

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reference to the proven prior inconsistent statements. Any other conclusion not only lacks the ring of reality but is transparently a rule adopted for comfort in the full awareness by the Court that regardless of the instructions to the jury, the content of the prior inconsistent statement will be weighed by the jury along with the testimony of the witness given in court in the process of determining which statements and evidence of the witness (if any) are to be believed and incorporated in their findings or conclusions on the facts.

As I have said at the outset, I would agree with the disposition of this appeal as proposed by my brother, Martland J.

Appeal dismissed.

Solicitors for the appellant McInroy: Rankin, Robertson, Giusti, Chamberlain & Donald, Vancouver.

Solicitors for the appellant McInroy: Stevenson & Doell & Co., Victoria.

Solicitors for the appellant Rouse: R.A. Jatko, Vancouver.

Solicitors for the respondent: Davies & Co., Vancouver.