R. c. Gordon Gray, 2021 QCCA 882
In the case of prior inconsistent statements, the lack of contemporaneous cross-examination, “is also the most easily remedied by the opportunity to cross-examine at trial”.
[19] As stated by Lamer, C.J. in R. v. B.(K.G.), in the case of prior inconsistent statements, the lack of contemporaneous cross-examination, “is also the most easily remedied by the opportunity to cross-examine at trial”.[3]
[20] Consequently, the “cross-examination of a recanting witness at trial [is] an almost perfect substitute for contemporaneous cross-examination”.[4]
”Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis”.
[22] Admissions or statements against interest are admitted against an accused without the need for corroborating evidence because they are inherently reliable. It is either a hearsay exception or not hearsay at all.[5]
[23] The trial judge did not take into account that the admissibility of the respondent’s admission to Ms. Chandler rested upon a different evidentiary foundation. With respect, it was a legal error not to do so.
[24] In R. v. Evans, Sopinka J. explained the applicable rule:
The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all. The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, « [a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath » (Morgan, « Basic Problems of Evidence » (1963), pp. 265-66, quoted in McCormick on Evidence, supra, at p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.[6]
[25] Evans has consistently been followed by the Supreme Court.[7]
[26] Hence, as stated by Charron, J. in R. v. S.G.T., “[w]hen statements are made by an accused to ordinary persons, such as friends or family members, they are presumptively admissible without the necessity of a voir dire”.[8]
[27] Therefore, when Ms. Chandler testified at the respondent’s first trial about the statement he had made to her, it was admissible evidence.[9] It remained admissible evidence as part and parcel of the recanted prior inconsistent statement.
[28] In R. v. Foreman, Doherty, J.A. wrote that ”[a]dmissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis”.[10]
[29] In R. v. Hart,[11] albeit in a different context, Moldaver, J. discussed the Mr. Big confessions of an accused from the perspective of the law applicable to the admissibility of an accused’s confessions to a person who is not a person in authority:
[63] In cases where the Mr. Big technique has been used, the ensuing confessions have typically been received at trial. Under the existing case law, they have been admitted under the party admissions exception to the hearsay rule (see R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653, at p. 664; R. v. Osmar, 2007 ONCA 50, 84 O.R. (3d) 321, at para. 53). The admissibility of party admissions flows from the adversarial nature of our trial system, and the belief that “what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements” (Evans, at p. 664).
[30] The British Columbia Court of Appeal in R. v. Moir[12] concluded that the preceding analysis in Hart has not been overtaken by Bradshaw.
[31] After Bradshaw, in R. v. Skeete,[13] the Ontario Court of Appeal confirmed the continued relevance of Evans and Hart with respect to the admissibility of admissions made by an accused as a specific exception to the hearsay rule.
[32] In R. v. Lo,[14] Watt, J.A. considered whether the admissibility of an accused’s admission required independent circumstantial guarantees of trustworthiness. He concluded that it did not:
[80] In Evans, Sopinka J. said that the rationale for admitting evidence of admissions has a different basis than the other hearsay exceptions, if the evidence is hearsay at all. Admissions do not require independent circumstantial guarantees of trustworthiness. It is enough that the admissions are tendered against the party making them. Thus, admissibility is grounded on the theory of the adversary system; that what a party has previously said (or done) can be admitted against that party in whose mouth it ill lies to complain of the unreliability of their own statements: Evans, at para. 24.
[33] The recanted testimony of Ms. Chandler contained a confession by Mr. Gray. No necessity/reliability analysis had to be undertaken and independent circumstantial evidence of trustworthiness through corroboration was not required before it could be admitted.
[34] The factual circumstances in R v. B.(K.G.) support this conclusion.
