Supreme Court of Canada

Lucier v. The Queen, [1982] 1 S.C.R. 28

Date: 1982-01-26

Armand Lucier Appellant;

and

Her Majesty The Queen Respondent.

File No.: 15801.

1981: June 9; 1982: January 26.

Present: Laskin C.J. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR MANITOBA

Criminal law—Evidence—Statements against penal interest—Hearsay—Exception to the hearsay rule—Whether such statements having an inculpatory effect on the accused admissible.

Accused was charged with arson in the burning of his house. A friend of the accused, who was severely burned and died a few days later, made two statements at the hospital to R.C.M.P. officers admitting that he had personally set the house afire and had been hired by the accused to do so. At trial, the statements were admitted into evidence and the accused convicted. An appeal was dismissed by the Court of Appeal.

Held: The appeal should be allowed.

In a proper case, statements tendered on behalf of the accused and made by an unavailable person may be admitted at trial if they can be shown to have been made against the penal interest of the person making them; but such a rule could not apply to statements which have an inculpatory effect on the accused. Such statements implicating the accused robs him of the invaluable weapon of cross-examination which has always been one of the mainstays of fairness in our courts.

R. v. O’Brien, 1977 168 (SCC), [1978] 1 S.C.R. 591; R. v. Demeter, 1977 25 (SCC), [1978] 1 S.C.R. 538, followed; The Sussex Peerage (1844), 8 E.R. 1034 (H.L.); Teper v. The Queen, [1952] A.C. 480, referred to.

APPEAL from a judgment of the Court of Appeal for Manitoba (1979), 1979 3034 (MB CA), 1 Man. R. (2d) 182, 50 C.C.C. (2d) 535, dismissing an appeal from a judgment of Darichuk J. Appeal allowed.

Paul Walsh, for the appellant.

Stuart Whitley, for the respondent.

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The judgment of the Court was delivered by

RITCHIE J.—This is an appeal brought as of right pursuant to s. 618(1)(a) of the Criminal Code and is accordingly limited to the questions of law on which Mr. Justice O’Sullivan dissented in the Court of Appeal for Manitoba. The said s. 618 (1)(a) reads as follows:

618. (1) A person who is convicted of an indictable offence and whose conviction is affirmed by the court of appeal may appeal to the Supreme Court of Canada

(a) on any question of law on which a judge of the court of appeal dissents,…

The grounds of appeal are referred to in the following terms in the notice of appeal to this Court:

AND FURTHER TAKE NOTICE that the grounds of the said appeal are the grounds in law set forth by The Honourable Mr. Justice O’Sullivan of the Court of Appeal for Manitoba, in his dissent from the Judgment of the said Court of Appeal for Manitoba which said grounds of dissent in law are more particularly set out in the Reasons for Judgment of the said The Honourable Mr. Justice O’Sullivan in the formal Certificate of Decision of the said Court of Appeal for Manitoba, namely:

1. THAT the learned trial Judge erred in law in permitting the introduction into evidence of a confession/statement by a deceased person accusing an accused, as an exception to the rule against hearsay evidence; and

2. THAT the learned trial Judge erred in law assuming the said confession/statement implicating the accused were admissable [sic], in admitting into evidence such portion of the said statement which was an accusation directed against the accused.

The appellant was convicted at trial by His Honour Judge W. Darichuk in the County Court Judges’ Criminal Court for the Dauphin Judicial District on the following charge, namely:

THAT he the said ARMAND LUCIER on or about the ninth day of November in the year of our Lord one thousand, nine hundred and seventy-seven at or near the Rural Municipality of Shell River in the Dauphin Judicial District, in the Province of Manitoba, did unlawful-

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ly and wilfully set fire to a building, to wit: a dwelling house, the property of Armand Lucier.

The appellant’s appeal from this conviction was dismissed in a judgment of the Court of Appeal for Manitoba and it is from this judgment that the appeal is now taken on the grounds referred to above which are more fully set forth in the reasons for judgment of Mr. Justice O’Sullivan.

The facts of this case are essentially undisputed and reveal that the appellant’s house was destroyed by fire at a time when he was absent from the locality and shortly after he had increased his fire insurance policy by the sum of $20,000. The circumstances immediately preceding this fire are recounted by the appellant’s friend, one Dumont, who had himself been in the house at the time of the fire with the result that he was seriously burned and upon escaping to his sister’s house nearby he was ultimately removed to a hospital in Winnipeg. There he was visited by a constable of the R.C.M.P to whom he made a statement admitting that he had personally set the house afire and that he had been hired to do so for the purpose by the appellant who had undertaken to pay him $500 for the task. Dumont later made a further statement to another R.C.M.P. officer which was to the same effect in that he admitted responsibility for setting the fire and implicated the accused in the undertaking. Both these statements were made to persons in authority after Dumont had been duly cautioned and they were in my view contrary to his penal interest. A few days later Dumont died and it is the question of whether or not his statements should be admitted against the appellant which lies at the root of this appeal. After a careful review of the leading cases on the somewhat vexed question as to the admissibility of statements made against penal interest, the Court of Appeal concluded that the Dumont statements were admissible.

It is, of course, obvious that the account given by the policemen of what Dumont had told them was hearsay evidence and in fact it might be characterized as double hearsay in that it constituted the policemen’s recollection of what the deceased said about what was said to him by the

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appellant concerning the lighting of the fire. The rule against the admission of hearsay evidence has been constantly repeated over the years and is succinctly stated by Lord Norman in Teper v. The Queen, [1952] A.C. 480, at p. 486 where he said:

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 demeanour would throw on his testimony is lost.

The Sussex Peerage case, decided in 1844 (1844), 11 Cl. and Fin. 85, 8 E.R. 1034 (H.L.), recognized an exception to the hearsay rule in respect of a statement made by a deceased person against his pecuniary interest, but this exception did not apply to a statement against penal interest. The advisability of extending the application of the exception to declarations against penal interest has been debated in a number of cases and by Wig-more in his text on evidence (5 Wigmore, Evidence, 3rd ed., paras. 1476 and 1477). However, the matter has been determined in this Court in R. v. O’Brien, 1977 168 (SCC), [1978] 1 S.C.R. 591. Dickson J., who delivered the judgment of the Court, said at p. 599:

The effect of the rule in The Sussex Peerage case, as it has been generally understood, is to render admissible a statement by a deceased that he had received payment of a debt from another or that he held a parcel of land as tenant and not as owner, but to render inadmissible a confession by a deceased that he and not someone else was the real perpetrator of the crime. The distinction is arbitrary and tenuous. There is little or no reason why declarations against penal interest and those against pecuniary or proprietary interest should not stand on the same footing. A person is as likely to speak the truth in a matter affecting his liberty as in a matter affecting his pocketbook. For these reasons and the ever-present possibility that a rule of absolute prohibition could lead to grave injustice I would hold that, in a proper case, a declaration against penal interest is admissible according to the law of Canada; the rule as to absolute exclusion of declarations against penal interest, established in The Sussex Peerage case, should not be followed.

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In R. v. Demeter (1975), 1975 685 (ON CA), 10 O.R. (2d) 321, the Ontario Court of Appeal, while not deciding the issue of the admissibility of declarations against penal interest, did enunciate the principles which would have to apply to determine if a statement alleged to be against penal interest could be admitted. On the appeal to this Court, 1977 25 (SCC), [1978] 1 S.C.R. 538, it was stated at p. 545 that the principles enunciated by the Court of Appeal would be a valuable guide if this Court decided that declarations against penal interest were not, per se, inadmissible. Those principles are as follows [at p. 544]:

1. The declaration would have to be made to such a person and in such circumstances that the declarant should have apprehended a vulnerability to penal consequences as a result. In Sussex Peerage the Lord Chancellor would not have admitted the declaration in any event of the rule because it was made to the declarant’s son. In ordinary circumstances where a declaration is made for instance to an unestranged son, wife or mother, the psychological assurance of reliability is lacking because of [sic] risk of penal consequences is not real and the declarant may have motives such as a desire for self‑aggrandizement or to shock which makes the declaration unreliable.

2. The vulnerability to penal consequences would have to be not remote.

3. “…the declaration sought to be given in evidence must be considered in its totality. If upon the whole tenor the weight is in favour of the declarant, it is not against his interest”: Re Van Beelen, p. 208; R. v. Agawa (1975) 1975 482 (ON CA), 11 O.R. (2d) 176.

4. In a doubtful case a Court might properly consider whether or not there are other circumstances connecting the declarant with the crime and whether or not there is any connection between the declarant and the accused.

5. The declarant would have to be unavailable by reason of death, insanity, grave illness which prevents the giving of testimony even from a bed, or absence in a jurisdiction to which none of the processes of the Court extends. A declarant would not be unavailable in the circumstances that existed in R. v. Agawa.

Having regard to the judgment of this Court in the Demeter and O’Brien cases, it must now be recognized that in a proper case, statements tendered on behalf of the accused and made by an unavailable person may be admitted at trial if they

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can be shown to have been made against the penal interest of the person making them; but neither the two cases to which I have just referred nor any of the wealth of authorities cited in the courts below apply such a rule to statements which have an inculpatory effect on the accused. On the contrary, wherever such statements have been admitted it will be found that they have an exculpatory effect. The difference is a very real one because a statement implicating the accused in the crime with which he is charged emanating from the lips of one who is no longer available to give evidence robs the accused of the invaluable weapon of cross-examination which has always been one of the mainstays of fairness in our courts.

In the present case the statements made by Dumont which were tendered by the prosecutor are obviously inculpatory of the appellant and in my opinion this is not a “proper case” for admitting them so that the learned trial judge did err in permitting their introduction into evidence and I would accordingly allow this appeal on the first ground specified in the Notice of Appeal, quash the conviction and direct a new trial in accordance with the alternative relief sought by the appellant.

Appeal allowed.

Solicitors for the appellant: Walsh, Prober, Yard, Gutkin, McManus, Winnipeg.

Solicitor for the respondent: The Attorney General of Manitoba, Winnipeg.