Principled Exception to the Hearsay Rule Fails to Save Mystery Witness Statement

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the use of the principled exception to the hearsay rule with respect to a statement from an unidentified witness.
In today’s case (Biggs v. Doe) the Plaintiff was involved in a serious collision in 2006.  His motorcycle struck the pup trailer of a dump truck.  This resulted in profound injuries which required an above knee amputation for the Plaintiff.
The Plaintiff alleged that an unidentified motorist struck his motorcycle from behind which forced him to lose control causing the collision.  In support of his claim the Plaintiff attempted to introduce the hearsay evidence of an unknown witness present at the scene who apparently could corroborate the Plaintiff’s version of events.  In finding there is no reliability to the proposed evidence Mr. Justice Bernard provided the following reasons in excluding it:
 [61]         Mr. Biggs seeks to tender the unknown woman’s statements to Mr. Lasser for their truth, pursuant to the well-established “principled exception” to the rule against hearsay. The principled exception permits the admissibility of a hearsay statement for its truth if it is shown, by the party seeking to adduce it, to be both necessary and reliable. In relation to the latter, it is threshold (vs. ultimate) reliability that is the evidentiary standard that must be met for admissibility…
[64]         Having due regard for the foregoing legal principles, for the reasons which follow I am not persuaded that the plaintiff has established that there is threshold reliability to the evidence in question; accordingly, the claimed observations of the unknown witness cannot be admitted into evidence for their truth. In short, the plaintiff has not established either that the statements were made in circumstances in which there is no compelling concern about their reliability, or that sufficient means for assessing their reliability exists.
[65]         In this regard, virtually nothing is known about the woman to whom the statements are attributed other than she was present at the scene of the accident, claimed to have seen it, was upset by it, and chose not speak to the police or even identify herself to them in circumstances which cried out for doing so. Her failure to act responsibly is very troubling. It raises concerns about her motives and, thus, the reliability of any words attributed to her.
[66]          Significantly, this woman cannot be linked to a specific vehicle, and there is no evidence of where she was and, thus, what her perspective was at the time of her observations. In the absence of such evidence, no reasonable inferences can be drawn about her ability to make accurate observations and relate them to others.
[67]         The nature of the event the unknown woman witnessed is an important factor. In the instant case, the event was a dynamic one involving multiple motor vehicles moving at relatively high speeds in relation to one another and at the time of the collision with the pup trailer. Even witnesses who are well-positioned, focused, and have clear and unobstructed views are prone to misperceiving or misconstruing such highly dynamic events. 
[68]         The circumstances in which the statements were made and the absence of any recording of relatively complex assertions at a time reasonably proximate to the utterances, raise significant concerns about Mr. Lasser’s ability to restate them with accuracy. In this regard, it is noteworthy that Mr. Lasser was not an investigator and that his focus was on the task of setting out road flares. The unknown witness was in an agitated state and Mr. Lasser neither questioned anything she said nor sought any clarification. Testifying to the gist of what an eyewitness said is troubling when the statements venture well beyond a simple and clear assertion that can be repeated with confidence as to its accuracy. For example, at trial Mr. Lasser remained uncertain as to whether the unknown woman said the events unfolded ahead of her or from behind, as observed through a rear-view mirror.
[69]         Finally, it is of some significance that the unknown witness described events which are inconsistent with other reliable evidence. For example, it is not a matter of controversy that Mr. Booth’s fifth wheel was in the far right lane at all relevant times. This evidence is difficult to reconcile with the unknown woman’s version of events which apparently has the motorcyclist in the same lane as the fifth wheel when it accelerated into the bumper of the fifth wheel to avoid a car merging from his right side. There is no lane to the right of the merge lane; moreover, the unknown witness does not describe a rear impact to the motorcycle.
[70]         For all the foregoing reasons, I am not persuaded that the evidence in question meets the standard of threshold reliability; indeed, in my assessment it falls very far short of it. In the absence of threshold reliability, admissibility under the “principled exception” to the rule against hearsay must fail and, thus, there is no need to determine whether the “necessity” prong of the two-part test has been satisfied.