Date: 20010223
Docket: T-2492-84
Neutral citation: 2001 FCTD 111
BETWEEN:
COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL
Applicant
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is a motion under Rule 220(1)(b) of the Federal Court Rules, 1998 for a ruling on the admissibility as evidence of certain exhibits (cc, dd, gg, hh, jj, kk, mm, nn, pp) and of appendix "J" attached to an expurgated report dated June 20, 1984 prepared by the Canadian Armed Forces. The motion also seeks a ruling on the admissibility of the transcript of testimony of Captain W.J. York, now deceased, had given under oath before the Canadian Armed Forces committee that produced the aforesaid expurgated report.
[2] It appears from the submissions made to the Court that following the tragic events occurring May 8, 1984, a committee of inquiry was established by the Canadian Armed Forces. This committee was chaired by Lieutenant-Colonel Martineau, who submitted his report on June 20, 1984.
[3] During this inquiry by the Canadian Armed Forces, a number of soldiers were interrogated. At the time of their interrogation by the Canadian Armed Forces, these soldiers were confronted with some statements they had made to officers of the Sûreté du Québec as well as to military police officers. The statements were to be used to establish evidence for the criminal trial that was held the following year.
[4] The respondent has already accepted and the parties have mutually agreed that the testimony presented in the criminal trial will also be placed in evidence during the trial that is to be held in the fall in this matter.
[5] The issue now in dispute is whether the exhibits that were shown to the witnesses at the time of their interrogation by the Canadian Armed Forces are an integral part of their testimony, or whether the said statements should be excluded as hearsay, as the respondent submits.
[6] These exhibits and this appendix "J" all consist, therefore, of some statements provided to the Sûreté du Québec by some soldiers, all of them stationed at the Carp Base at the time of the disputed events. Furthermore, these statements are contemporaneous with the events since they date from May or June 1984, that is, in the weeks following the tragic events.
[7] It appears from the transcript of the soldiers' testimony before the committee of inquiry that these statements to the Sûreté du Québec were commented on to varying degrees by those who made them when they were questioned under oath. The committee of inquiry filed the said statements in the record.
[8] The applicant suggests that these statements filed in the report of the Armed Forces committee as exhibits and appendix should be admitted as evidence at the trial, so the trial judge can examine all of the relevant evidence.
[9] The applicant also suggests that the production of these written statements in evidence meets the tests of necessity and reliability established by the cases and authorities in such matters.
[10] The respondent, for its part, considers that the applicant has been foreclosed since June 30, 2000 from requesting the filing in evidence of the statements and that the statements fail to meet the requisite tests of necessity and reliability to be admissible as hearsay exceptions.
[11] In regard to the argument that the applicant is foreclosed from requesting the filing of the said statements, the respondent has not succeeded in persuading me of the merits of this argument.
[12] Indeed, the Court ratified an agreement between the parties on June 30, 2000.
[13] The decision speaks for itself and it unnecessary to return to it.
[14] This decision of June 30 followed an exchange of correspondence between the parties, some letters from the applicant dated March 21 and April 26, 2000. In its letter of April 26, 2000, the applicant explained that it was seeking the filing of the statutory declarations made to the Sûreté du Québec and duly signed by the soldiers.
[15] In a letter of reply dated June 28, 2000, the respondent accepted in part the filing of a number of documents, and at the pre-trial conference, which was held two days later, on June 30, 2000, the Court ratified the agreement through an order.
[16] It is clear in my mind that this request made on April 26, 2000 that the statutory declarations made by the Sûreté du Québec and duly signed by the soldiers be filed was not accepted by the respondent, but neither was it the subject matter of the order rendered on June 30, 2000.
[17] This issue, in my opinion, simply remained unresolved and the respondent has failed to convince me that the applicant waived requesting the filing in evidence of the statements and is now foreclosed from doing so.
[18] As to whether the said statements are admissible in evidence, I must now examine them in regard to the tests that have been laid down.
[19] Let us first look at the test of necessity. For the purposes of admissibility of out-of-court statements, it is not necessary to show an absolute necessity. Messrs. Justices Sopinka and Lederman and Professor Bryant, commenting on the Supreme Court of Canada judgment in R. v. Khan, [1990] 2 S.C.R. 531, state, in The Law of Evidence in Canada (Butterworths, 1998), at page 195:
There are various degrees of necessity, ranging from the fact that the declarant is deceased, or ill, or incompetent to testify, or otherwise unavailable, to the fact that, although he or she is available to testify, little would be gained by the declarant's attendance in court.
and at page 196:
There may be situations where the declarant is available but his or her attendance would add little, i.e., where a declarant has no independent recollection of events other than what he or she wrote down in the statement; where a declarant's attendance in court would needlessly add to the length of a trial merely to establish a point which could be readily accepted through hearsay evidence;
In some instances, although the declarant is able to testify at trial, the better evidence may be the declarant's out-of-court remarks made at a time much closer to the events in question. In this way, a fuller and more complete rendition of the events is achieved.
"Necessity" therefore, does not mean absolute necessity. Perhaps mere expediency or convenience will suffice.
[20] The respondent suggests that there is no reason to conclude that the statements are necessary to the understanding of the transcripts of testimony the parties have agreed should be produced, since the soldiers concerned were questioned not on the content of their statement but solely on the existence of the statement.
[21] The respondent further adds that the content of the statements adds nothing to that of the transcripts already in evidence, so filing them as evidence would be of no use in resolving this litigation.
[22] It is undeniable that the courts have so far adopted the position that witnesses, when available, should testify before the Court and that this testimony is usually the best evidence.
[23] If each of the soldiers who wrote the statements in dispute appears next November to testify, they will be able to provide testimony on what they recall of the events and they will necessarily be confronted with, on the one hand, their testimony to the committee of inquiry, which will be part of the record, and, on the other hand, the testimony to the criminal courts and, if that is not sufficient, they can also be confronted with their written statements made to the police, which are the subject matter of this proceeding. The two sets of testimony under oath, before the committee of inquiry and the criminal courts, and a statement made to a police officer should be sufficient to indicate what really happened during these events of May 1984.
[24] However, I have been given no confirmation as to the participation of these soldiers as witnesses at the trial that is to be held next November. My understanding is that if these statements are accepted for presentation as evidence, the soldiers will not be called to testify by the applicant. As to the respondent, she has not yet confirmed to me whether the presence of these witnesses will be required.
[25] It remains to assess whether the out-of-court statement of the witnesses made two or three weeks after the events in question is likely to be more relevant than the oral testimony of these witnesses, sixteen years after the events. It is probable that these statements made to the police are very close to what these soldiers might come and say after sixteen years, especially because the soldiers will have no choice but to reread their testimony to the committee of inquiry and to the criminal courts and their statement to the police in order to refresh their memory.
[26] Another factor that it is important to keep in mind is that the witnesses who wrote these statements are not actually third parties to these events; they are all officials of the respondent and they testified freely before a committee of inquiry established by the respondent in the days following the unfortunate events of May 1984.
[27] The statements made to the police were made on the Carp Base itself and in some cases the statements were made not to officers of the Sûreté du Québec but to officers of the military police, who are also officials of the respondent.
[28] Furthermore, all or almost all of the statements were exhibited to the soldiers at the time of their testimony to the committee of inquiry to get them to acknowledge the said document and to file it as an appendix to the report and even to put some questions to the witness concerning the statement.
[29] I conclude, therefore, that although the degree of necessity in this specific case seems weak, it nevertheless does appear to me to be sufficient to find that the said documents meet the test of necessity.
[30] I must now examine the degree of reliability required by the law for such documents to be admissible in evidence.
[31] It seems that in every case, other than the case of Corporal Filion, the disputed statements were acknowledged by their authors when they were testifying under oath before the Armed Forces committee. The statements all have to do with the events that are in dispute in this case and they are contemporaneous with the events that occurred in May 1984, since the statements were all made between May 8, 1984, the date of the event, and June 20, 1984, the date of the Armed Forces report.
[32] On its side, the respondent suggests that the said statements do not bear the signature of the police officers who requested them from the soldiers, and do not indicate that they were freely and voluntarily signed and reproduce fully and accurately the entirety of the comments taken down from the declarants.
[33] At the hearing I indicated my scepticism with these arguments, since the statements in question were exhibited a few days later to those who had signed them when they were testifying before the Armed Forces committee and all of the declarants acknowledged them and manifested no reluctance about these statements, so the police who took down these complaints did not have to sign them in order to attest to their authenticity.
[34] I conclude that the said statements meet the tests of necessity and reliability that have been established by law and by the courts, while reminding the parties that they are hearsay.
[35] Although it is not impossible or unreasonable to require the appearance of the soldiers or the members of the Sûreté du Québec to testify concerning these statements, it is more than probable that the witnesses who signed the statements will have a hard time dredging up memories more precise than those already assembled in their two written accounts and in the statements at issue here.
[36] I have also reviewed some comments by Derek Guthrie J. in Frederick J. Ridley v. Financière Manuvie, [2000] R.J.Q. 1880, at page 1885:
[Translation]
It is true that since the decisions of the Supreme Court of Canada in R. v. K.G.B.,(18)R. v. Smith(19) and R. v. Khan,(20) there has been a tendency in the law of evidence to liberalize admissibility and, simultaneously, to put greater emphasis on the weight to be given to the evidence. Although these decisions were rendered in criminal cases, they are also authoritative in civil matters in Quebec. Articles 2870 to 2873 C.C.Q. and article 294.1 C.P.C. reflect this tendency.(21)
Moreover, in R. v. Keegstra,(22) Chief Justice Dickson of the Supreme Court of Canada confirmed that seeking and discovering the truth is an activity that is intrinsically good. In Frenette v. Metropolitan Life Insurance Co.,(23) L'Heureux-Dubé J., speaking on behalf of a unanimous bench, confirmed that the search for the truth is one of the principles of fundamental justice. In Canada v. Nicolovski,(24) Cory J. of the Supreme Court of Canada held that the ultimate objective of a criminal or civil trial must be the search for and discovery of the truth. Finally, in R. v. W.J.F.,(25) McLachlin J. recently held that hearsay evidence may sometimes be necessary if all of the relevant and reliable evidence is to be presented to the court and justice is to be done.
Articles 2870 to 2873 C.C.Q. are derogations from the prohibition of hearsay now found in the law. They denote a relaxation of the rules in this regard and express the legislature's intention to relax a prohibition that was excessively restrictive in the past. That being said, they do not automatically override the rules of the Code of Civil Procedure.
___________________________
(18) [1993] 1 S.C.R. 740.
(19) [1992] 2 S.C.R. 915.
(20) [1990] 2 S.C.R. 531.
(21) See my remarks in Deslongchamps v. Deslongchamps, [1994] R.J.Q. 1930 (S.C.), 1933.
(22) [1990] 3 S.C.R. 697, 728.
(23) [1992] 1 S.C.R. 647, 675.
(24) [1996] 3 S.C.R. 1197, 1206; see also my remarks in Leblanc v. Keyserlingk, [1998] R.J.Q. 877 (S.C.), 881.
(25) [1999] 3 S.C.R. 569, 585-86.
[37] Consequently, the exhibits attached to the expurgated report of the Canadian Armed Forces, cc, dd, gg, hh, jj, kk, mm, tt, pp, at page 3 of the expurgated report and the statements contained in Appendix "J", page 437 of the expurgated report, are declared admissible as evidence and will be filed for purposes of examination by the Court during the trial that is to be held in November 2001.
[38] There remains one further point to be decided: the necessity, reliability and relevance of the transcript of the testimony given by Captain York before the Armed Forces committee.
[39] The applicant wishes to file the transcript of Captain York's testimony to the Armed Forces committee and the respondent is opposed. It is admitted by the parties that Captain York is deceased. According to Captain York's testimony, he was the officer in charge of logistics at the Carp Base at the time of the events of May 1984 and in this capacity he was ultimately responsible for the security of the stores located in the vault of the Carp Base.
[40] Captain York was not called to testify during the criminal proceedings, nor did he sign any statement to the Sûreté du Québec in relation to the events. It appears, therefore, that the only version of the events that he ever gave officially is the one contained in the transcript of his testimony to the Armed Forces committee. I must once again examine the question from the standpoint of the two tests.
[41] In regard to the necessity test, it is obviously impossible to obtain the appearance of the declarant as a witness. The respondent argues that the transcript of Captain York's testimony will add nothing to what is already in evidence through the filing of the transcript of the testimony of twenty or so soldiers who were heard by the committee of inquiry. She argues that there is nothing in Captain York's testimony that does not already appear in the testimony of the other soldiers.
[42] In so far as I am concerned, this argument is highly debatable, since, as often happens when a few dozen individual testify in Court, their testimony sounds alike and one could occasionally say that this or that testimony has added nothing new other than to corroborate the testimony already given by other persons.
[43] For my part, that in no way deprives of its relevance the testimony of the military officer ultimately responsible for the stores containing the weapons and ammunition allegedly procured by Corporal Lortie before leaving the Carp Base.
[44] The applicant referred to Monette v. Société hôtelière Canadien Pacifique (Mtl. S.C., 500-05-010926-853, March 16, 2000), in which Madam Justice Courteau held:
[Translation] ... in the Court's opinion, the condition of necessity is fulfilled, in that it is impossible to obtain the appearance of the declarant as a witness. Jean Turgeon died in July 1999.
[45] I have no hesitation, therefore, in concluding that Captain York's testimony is necessary in the circumstances.
[46] As to the test of reliability, the respondent suggests that she was unable to verify the reliability of Captain York's testimony as she has in regard to the other soldiers. It should be recalled that Captain York was examined by some representatives of the respondent herself and that he testified under oath. As to the questioning in regard to whether the transcript of Captain York's testimony, like that of the other soldiers who testified before the Armed Forces committee, could be reliable, the applicant referred the Court to a passage from the committee's report, at page 448:
The Board took pains to preserve as much of the original sentence structure as possible and to insure that the essence of testimony was not altered in anyway by not even correcting some obvious errors in syntax and sentence structure. It is the opinion of this Board that there are no distortions, alterations or any other misrepresentations of any testimony presented to the Board.
[47] I have no hesitation, therefore, in finding that the admissibility as evidence of the transcript of the testimony given by Captain York to the committee of inquiry of the Canadian Armed Forces is justifiable in terms of its relevance, and that it fulfills the tests of necessity and reliability. It may therefore be filed.
[48] For all of these reasons, THE COURT
ALLOWS the applicant's motion;
DECLARES that exhibits cc, dd, gg, hh, jj, kk, mm, nn, pp and appendix J, which exhibits and appendix are attached to an expurgated report dated June 20, 1984 prepared by the Canadian Armed Forces, are declared admissible as evidence as is the transcript of the testimony of Captain W.J. York, the said testimony having been given under oath before the committee of the Canadian Armed Forces;
NOTES that the testimony of the officers Forrester and Muise will be filed to serve as testimony, like the transcript of the other testimony previously filed;
NOTES the filing of an agreement on the quantum signed February 16, 2001 by all of the parties;
NOTES that the respondent informed the Court that she will call only two witnesses, Brigadier General Simpson and Private Denis Lortie.
The parties should make themselves available for a teleconference next April 12 at 9:00 a.m. to review any issues that could remain unresolved between now and the commencement of the trial in November 2001.
Pierre Blais
J.
OTTAWA, ONTARIO
February 23, 2001
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET NO: T-2492-84
STYLE: Commission de la santé et de la sécurité du travail
v.
Her Majesty the Queen
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: February 16, 2001
REASONS FOR ORDER AND ORDER OF BLAIS J.
DATED: February 23, 2001
APPEARANCES:
Michel Beaupré for the applicant
Michel Miller for the respondent
SOLICITORS OF RECORD:
Kronström, Desjardins for the applicant
Société en nom collectif
Sainte-Foy, Quebec
Morris Rosenberg for the respondent
Deputy Attorney General of Canada
Ottawa, Ontario