McInroy et al. v. The Queen

McInroy et al. v. The Queen
Collection
Supreme Court Judgments
Date
1978-10-31
Report
[1979] 1 SCR 588
Judges
Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
British Columbia
Subjects
Criminal law
Decision Content
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. 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 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. 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 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 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. 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- 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? 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? 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? 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. 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? 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? 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. 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 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 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. 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. 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, 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