R. v. Streu, [1989] 1 S.C.R. 1521

Harvey Ewald Streu Appellant

v.

Her Majesty The Queen Respondent

indexed as: r. v. streu

File No.: 20317.

1989: February 23; 1989: June 8.

Present: Wilson, La Forest, L'Heureux‑Dubé, Sopinka and Gonthier JJ.

on appeal from the court of appeal for alberta

Evidence -- Admissibility -- Hearsay -- Accused admitting evidence as fact -- Police officer testifying as to what accused stated -- Whether or not accused's admission admissible.

Appellant was found guilty of possession of stolen property having a value in excess of $200 and his conviction was upheld on appeal. He sold the goods to a police officer, who had posed as a purchaser, for $125. The officer testified that appellant, during conversation leading to the sale, had admitted that the tires and rims belonged to a friend who had "ripped them off". It was assumed that, in the absence of the admission, the evidence was insufficient to meet the criminal standard of proof. At issue was the admissibility of the admission and its evidentiary value.

Held: The appeal should be dismissed.

A party making an admission may adopt a hearsay statement as his or her own for the purpose of admitting the facts therein.

The rationale underlying the exclusion of hearsay evidence is primarily the inherent untrustworthiness of an extra‑judicial statement which has been tendered without affording an opportunity to the party against whom it is adduced to cross‑examine the declarant. This rationale loses its force when the party relies on the hearsay statement in making an admission for he or she is presumably satisfied as to the reliability of the statement. The admission, once established, should be treated no differently than if it had been made in the witness box where a belief or acceptance of a hearsay statement is taken as some evidence of the truth of its contents. The weight to be given to that evidence is for the trier of fact. On the other hand, a statement is not admissible as proof of the truth of its contents if the party simply reports a hearsay statement without either adopting it or indicating a belief in its truth.

The admission in question in this appeal cannot be read as merely reporting a hearsay statement without more. Appellant clearly was relying on the hearsay statement as being true; he either accepted it as being true or at least believed it to be true. Whatever conclusion was reached by the trial judge about the source of the information upon which the appellant's submission was based, the evidence was admissible.

Cases Cited

Applied: R. v. Schmidt, 1948 CanLII 6 (SCC), [1948] S.C.R. 333; considered: R. v. Vogelle and Reid (1969), 1969 CanLII 997 (MB CA), 9 C.R.N.S. 101; R. v. McDonald (1980), 70 Cr. App. R. 288; R. v. O'Neill (1976), 1976 CanLII 1299 (ON CA), 13 C.R. (3d) 193; R. v. Porter, [1976] Crim. L.R. 58; R. v. Rydzanicz (1979), 1979 CanLII 4457 (ON CA), 13 C.R. (3d) 190; R. v. Elliott (1984), 1984 ABCA 300, 15 C.C.C. (3d) 195; referred to: Black v. Hardwell, 1935 CanLII 141 (SK CA), [1935] 2 W.W.R. 172; Stowe v. Grand Trunk Pacific Railway Co., 1918 CanLII 362 (AB SCAD), [1918] 1 W.W.R. 546, aff'd (1918), 1918 CanLII 52 (SCC), 59 S.C.R. 665; Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608; Kitchen v. Robbins, 29 Ga. 713 (1860).

Statutes and Regulations Cited

Criminal Code, R.S.C. 1970, c. C‑34, s. 312(1).

Authors Cited

McWilliams, Peter K. Canadian Criminal Evidence, 2nd ed. Aurora, Ont.: Canada Law Book, 1984.

Wigmore, John Henry. Wigmore on Evidence, vol. 4. Revised by James H. Chadbourn. Boston: Little, Brown & Co., 1972.

APPEAL from a judgment of the Alberta Court of Appeal (1987), 1987 ABCA 45, 76 A.R. 381, dismissing an appeal from conviction by Agrios J. Appeal dismissed.

D. Grant Fedorak, for the appellant.

Jack Watson, for the respondent.

//Sopinka J.//

The judgment of the Court was delivered by

SOPINKA J. -- This is an appeal from the Alberta Court of Appeal which affirmed the decision of the trial judge finding the accused guilty of the charge of possession of stolen property having a value in excess of $200 contrary to s. 312(1) of the Criminal Code, R.S.C., 1970, c. C-34 (now R.S.C., 1985, c. C-46, s. 354).

Facts

The evidence at trial indicated that the appellant attempted to sell four tires and rims to a police officer who posed as a purchaser. The police officer testified to the following conversation with the appellant:

I ask him, referring to the wheels: What are these off of? And he replies: A Volkswagen Rabbit. And I ask: Oh, yeah. From the City here? And he replies: I don't know. My friend ripped them off. I ask: Well, where's the other ones? Harv replies: They're in my house. I reply: Oh, I see. Well, I'll give you twenty bucks apiece. And he replies: I can't let them go for that, they are my friend's wheels. I ask: How much did he want. And Harv replies: He priced them out at one hundred and thirty apiece. That's for the rims. I reply: I'm not paying that much. Just yesterday I bought a 1984 Datsun for $180.

Harv replies: Well, I know they're hot and all but they're his tires. I reply: Let me talk to your friend then. Harv replies: I know he'll be mad at me if I only get that much.

The appellant and the police officer proceeded to a garage at the end of a lane near the appellant's home to complete the sale. The appellant expressed concern that they not be observed. The police officer further testified that he paid the appellant $125 for the tires and rims.

The Courts Below

In convicting the accused, the learned trial judge stated:

I have been satisfied beyond a reasonable doubt that the requirements of this offence have been met by the Crown. Defence has stated that Crown has failed to prove that the goods were in fact stolen. Each indicia by itself would not be sufficient; I agree with Mr. Fedorak. The sale price by itself, in view of the decision of our Court of Appeal, although raising suspicions, would not be sufficient. However, when one looks at all of the circumstances, the statements made by the accused to the undercover officer, the sale price for the goods which admittedly is one-tenth of their new value, (and it is not argued they were new) and to that I add all of the behaviour of the accused which in my view shows that he was in possession of stolen goods. If the words spoken to the Constable are examined carefully, coupled with the rest of the information, there is, as suggested by Mr. Yusep, circumstantial evidence from which I may draw an inference, and I do draw that inference. I feel under the circumstances it cries for an explanation.

The majority of the Court of Appeal was of the view that there was sufficient circumstantial evidence apart from the admission by the appellant upon which a conviction could be based. Hetherington J.A., dissenting, would have allowed the appeal on the ground that the appellant's lack of personal knowledge of the theft of the items rendered his statement of no evidential value in relation to the question of whether the items were stolen. She was of the opinion that no other circumstantial evidence existed upon which the trial judge could have inferred that the items were stolen.

The Issue

I am prepared to assume that, in the absence of the admission made by the appellant, the evidence before the trial judge was insufficient to meet the criminal standard of proof. The central issue therefore is the admissibility of the admission and its evidentiary value.

The Authorities

The following are the relevant authorities referred to in this Court. In R. v. Vogelle and Reid (1969), 1969 CanLII 997 (MB CA), 9 C.R.N.S. 101 (Man. C.A.), the accused, Vogelle, met the accused, Reid, outside a store and after walking together for several blocks the latter removed some cloth from under his jacket and handed it to Vogelle who put it into a shopping bag. Seeing a constable, the two ran but were apprehended. Vogelle told the police that he had purchased the cloth from a girl and "figured it was hot". Reid's statement contained the following admission: "Because of the price that had been paid for the cloth it had to be stolen from some place. I do not know where the stuff was stolen from." The accused appealed against convictions for possession under $50. Property in the stolen goods was allegedly that of a person or persons unknown. It was argued upon appeal that the Crown had failed to prove that the goods were stolen.

In allowing the appeal, Dickson J.A. (as he then was), speaking for the majority, identified the elements of the offence and then continued, at pp. 104-5:

The theft and the ownership may be proven by direct evidence of the owner or some other person, or they may be proven by circumstantial evidence. The circumstances of the accused's possession may lead compellingly to the conclusion that the goods are stolen goods and the owner someone other than the accused. If circumstantial evidence is relied upon, however, it must be received with caution. There is no onus upon an accused to prove that he came into possession of the goods honestly. He does not have to account for his possession. Refusal or failure to give a satisfactory explanation as to the manner in which he acquired the goods, or even conflicting explanations, do not afford proof that the goods were stolen.

He went on to state that the trend in Canada was a reluctance to draw conclusions of guilt from circumstances giving rise to suspicion. In this case (at p. 107):

The statements given to the police, with the evidence of the shopping bag and flight, fall short of proving that the goods were stolen. A finding of guilt must rest firmly upon fact or inference, not upon suspicion or upon an inference drawn from another inference.

Freedman J.A., dissenting, concluded, at p. 108, that the circumstantial evidence in this case was "... of such a character as would lead any reasonable person to draw the inference that a theft had taken place."

In R. v. McDonald (1980), 70 Cr. App. R. 288 (C.A.), no direct evidence existed that the property, a television set, had been stolen. The accused admitted to the police that he believed it to be stolen. He also stated that he had bought the set for £90 from an unknown man at a betting shop. The accused stated that he believed the property to be worth three times that amount. Counsel for the accused moved that there was no case to answer, which was rejected by the trial judge. The issue before the Court of Appeal was whether, at the end of the prosecution's case, there was any evidence upon which a jury, properly directed, could have found the accused guilty.

The Court of Appeal held that the case against the accused did not depend on the accused's statement that he believed the set to be stolen. Instead, he made admissions based upon what he himself knew -- namely, that he bought the set from an unknown man in a betting shop for £90 when he thought the set was worth £280. The Court concluded, at p. 290:

In our judgment the appellant had admitted circumstances within his own knowledge from which the jury were entitled to infer that the set had been stolen.

In R. v. O'Neill (1976), 1976 CanLII 1299 (ON CA), 13 C.R. (3d) 193 (Ont. C.A.), the only evidence against the accused regarding the theft of a stereo and turntable --the subjects of the charge against her of unlawful possession -- was her statement to the police. In response to the question of whether she knew that the items were stolen the accused replied "yes". She then added that she had been given the items by a male friend.

The Court of Appeal followed R. v. Porter, [1976] Crim. L.R. 58, in finding that the hearsay statement of the accused was not proof that the items were stolen. The Court, at p. 194, cited the editorial commentary following R. v. Porter with approval:

It is one thing for the accused to admit facts of which he has personal knowledge and for an inference to be drawn from those facts that the goods are stolen. It is another thing for the accused to `admit' facts of which he has no personal knowledge.

In R. v. Rydzanicz (1979), 1979 CanLII 4457 (ON CA), 13 C.R. (3d) 190 (Ont. C.A.), the accused was charged with having in his possession a quantity of stolen cigarettes. The accused stated to the police that he saw his friend Mike enter the shopping centre and come out with a whole shopping cart full of cartons of cigarettes. The accused added that he helped Mike put the cigarettes in the back of the truck. The accused also stated that he knew that the cigarettes were stolen when he saw Mike come out of the shopping centre.

The accused was acquitted at trial on the strength of R. v. O'Neill, supra. The Court of Appeal overturned the acquittal because the trial judge had overlooked the fact that the accused stated that he saw Mike go into the store and come out with a shopping cart full of cigarettes. The Court of Appeal, at p. 192, held that:

That admission was based on the personal knowledge of the respondent, and constituted evidence of relevant fact in a chain of circumstances in support of an inference that the cigarettes were stolen.

Aside from the accused's stated belief, sufficient circumstantial evidence existed to support a finding that the goods were stolen. The Court of Appeal added that it is a question of fact whether the inference that the goods were stolen should be drawn by the trier of fact.

In R. v. Elliott (1984), 1984 ABCA 300, 15 C.C.C. (3d) 195 (Alta. C.A.), the accused was charged with possession of certain roof panels, the property of person or persons unknown, knowing them to "have been obtained by the commission in Canada of theft" contrary to s. 312 of the Criminal Code. The items involved were worth approximately $1,300 although the accused testified that he paid $150 for them, having purchased them from an unknown person in a bar. He did not receive a sales slip for the goods and the police testified that the accused told them that because of the low price he paid he realized they were "hot". There was no evidence as to where the goods had been obtained or who their owner was. On appeal by the accused from his conviction, the appeal was allowed and an acquittal entered.

The majority held that it was clear that the element of theft can be proved by circumstantial evidence. In this case, the circumstantial evidence was not strong enough to support the inference that the goods were stolen:

Here the only evidence of theft is proof of purchase for far below value, at a bar, from a stranger, without a bill of sale. Certainly, this gives rise to the suspicion that the goods which are being sold were stolen. Certainly in a civil case a court could prove on a balance of probabilities that a theft had occurred but I am of the opinion that proof of theft beyond all reasonable doubt has not been established by these facts alone. There has to be more. (At p. 201)

Foisy J. held that the circumstances in this case were strong enough to support the inference that the goods were in fact stolen. He agreed in the result, however, because he held that the Crown had failed to prove that the theft had been committed in Canada.

Analysis

Although they do not always make it clear, some of these authorities deal with the question relating to the use to be made of an admission based on hearsay as a matter of weight, and others, as a matter of admissibility. In deciding which position is correct, account must be taken of the decision of this Court in R. v. Schmidt, 1948 CanLII 6 (SCC), [1948] S.C.R. 333, a case that apparently was not drawn to the attention of the Court of Appeal and is not referred to in the factum of either party in this Court. That case dealt with a charge of incest between the accused and his alleged sister. Letters were introduced by the prosecution which contained admissions as to the relationship. The Court of Appeal held that this evidence was inadmissible and quashed the conviction with Roach J.A. dissenting. This Court held that although based on hearsay, the evidence was admissible. Inasmuch, however, as other evidence, which was inadmissible, had been admitted at the trial, a new trial was ordered. Kerwin J. stated, at p. 335:

On the second point the majority of the Court of Appeal (1) took the view that if the accused believed he was a brother of the complainant, there was nothing to show that such a belief was founded on anything except hearsay. On the other hand, the dissenting judge believed that what was written by the accused was an admission entitled to be relied upon in the same way, although not necessarily with the same force, as if the accused, while in the witness box and while denying the act of intercourse, had under oath stated that he and Elsie were brother and sister.

He continued at p. 336:

Ordinarily an admission of a fact made by a party is evidence against him of that fact. The statement in section 1053 of the third edition of Wigmore on Evidence that admissions are not subject to the rule for testimonial qualifications of personal knowledge is borne out by the decision, referred to by the author, of the Court of Appeal of Alberta in Stowe v. Grand Trunk Pacific Railway Co., affirmed in this Court.

Kerwin J. approved the reasoning of Roach J.A., dissenting in the Court of Appeal, who tested the admissibility of the admission by drawing a parallel between it and a statement made on the stand by the same party. Kerwin J. concluded, at p. 336:

In such a case as this there is no reason why a statement by the accused of his relationship with the complainant is not evidence any more than if he had stated it in the witnessbox, as referred to by Roach, J.

Kellock J., who agreed in the result, stated at p. 338:

Dealing first with the letters, I think the abbreviation "Brot." is to be interpreted as having been used as an abbreviation of the word "brother" and the jury were entitled to treat both letters, if they considered the handwriting of the accused to have been proved, as admissions against him.

Furthermore it is clear that a party making an admission may adopt a hearsay statement as his or her own for the purpose of admitting the facts therein. See Black v. Hardwell, 1935 CanLII 141 (SK CA), [1935] 2 W.W.R. 172, and Stowe v. Grand Trunk Pacific Railway Co., 1918 CanLII 362 (AB SCAD), [1918] 1 W.W.R. 546, aff'd (1918), 1918 CanLII 52 (SCC), 59 S.C.R. 665.

The rationale underlying the exclusion of hearsay evidence is primarily the inherent untrustworthiness of an extra-judicial statement which has been tendered without affording an opportunity to the party against whom it is adduced to cross-examine the declarant. This rationale applies equally in both criminal and civil cases. It loses its force when the party has chosen to rely on the hearsay statement in making an admission. Presumably in so doing, the party making the admission has satisfied himself or herself as to the reliability of the statement or at least had the opportunity to do so. The significance of this factor is evident in the decision of this Court in Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608, in which evidence was admitted as an exception to the hearsay rule where the party against whom the evidence was tendered had the opportunity to test the accuracy of the evidence.

I agree with the following statement in Kitchen v. Robbins, 29 Ga. 713 (1860), cited by 4 Wigmore, Evidence, s. 1053 (Chadbourn rev. 1972) for which I am indebted to McWilliams, Canadian Criminal Evidence (2nd ed. 1984), at p. 428:

Are no admissions good against a party, unless founded on his personal knowledge? The admissions would not be made except on evidence which satisfies the party who is making them against his own interest, that they are true, and that is evidence to the jury that they are true.

Accordingly, once it is established that the admission was in fact made, there is no reason in principle for treating it any differently than the same statement would be treated had it been made in the witness box. In the latter case, if a party indicates a belief in or acceptance of a hearsay statement, that is some evidence of the truth of its contents. The weight to be given to that evidence is for the trier of fact. On the other hand, if the party simply reports a hearsay statement without either adopting it or indicating a belief in the truth of its contents, the statement is not admissible as proof of the truth of the contents.

Conclusion and Disposition

Turning to the admission in question in this appeal, it is impossible to read it as merely reporting a hearsay statement without more. Clearly the appellant was relying on the hearsay statement as being true. Either he accepted it as being true or at least believed it to be true.

Furthermore, the trial judge may very well have concluded that the appellant had personal knowledge to state: "I know they're hot". These words are not necessarily limited by the previous comments: "I don't know. My friend ripped them off". No evidence was led by the appellant who did not testify. The trial judge might have reached this conclusion or the conclusion that the appellant accepted his friend's explanation, believed it to be true, or indeed satisfied himself from all the circumstances that the property was stolen. In any of the above alternatives, the evidence was admissible. Any evidentiary weakness in the information on which the admission was based was a matter of weight and not admissibility. This was a matter for the trial judge who considered the statement along with other evidence and concluded that the accused was guilty beyond a reasonable doubt. This result was affirmed by the majority of the Court of Appeal. There are, therefore, concurrent findings of fact with which this Court should not ordinarily interfere. For these reasons, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Kolthammer, Zazula & Fedorak, Edmonton.

Solicitor for the respondent: Jack Watson, Edmonton.