Tag: Past Recollection Recorded

Plaintiff Statement to Police Excluded Based on Hearsay Objection

(Update: November 6, 2012 – the trial judges liability decision was upheld by the BC Court of Appeal in reasons for judgement released today)
In my effort to archive ‘voir dire‘ rulings dealing with civil procedure issues in personal injury cases, I summarize recent reasons for judgement released by the BC Supreme Court, New Westminster Registry, addressing the admissibility of a Plaintiff’s post accident statement to police.
In last week’s case (Nerval v. Kherha) the Plaintiff was involved in an intersection collision in Abbotsford in 2007.  She sued for damages.  Following the collision the Plaintiff provided a statement to the investigating officer regarding the circumstances of the crash.  At trial the Plaintiff testified as to how the collision occurred.  She also wished to introduce her statement to the investigating officer.  The Defendant objected arguing this statement could not properly be admitted.  Mr. Justice Armstrong agreed and ruled that the statement was inadmissible.  The court provided the following concise reasons:

[47]Ms. Nerval applied to tender her statement to Cst. Baskin because she could not recall the events surrounding the collisions. A voir dire was held. Cst. Baskin reported that Ms. Nerval had told him that she was making a left-hand turn to go westbound on Sandpiper. At the time there was a van facing southbound indicating a left turn and an intention to go eastbound on Sandpiper. She said she did not see any other motor vehicle coming towards her. She did not remember if she had her signal light on; there was no mention of a signal light in his notes. Ms. Nerval told him that the other van had its signal on. That is the totality of his conversation with Ms. Nerval.

[48]The defence opposed the admission of this statement into evidence on the basis that it fails to meet the requirement of necessity. The defence argues that to be admissible the statement must be used to rebut an allegation of recent fabrication, be a prior inconsistent statement, or be a statement contemporaneous with an event reported in the statement.

[49]I conclude that the statement is not admissible. The circumstances under which the statement was taken do not reflect that it was taken contemporaneously with the event. The evidence did not support the suggestion that it was a contemporaneous report. There was no suggestion that the statement was inconsistent with the evidence given by Ms. Nerval at the trial and no suggestion that the there was an allegation of recent fabrication of evidence.

[50]If I am wrong in my conclusions regarding the admissibility of the statement, I would otherwise have concluded that the statement did not contain any information that materially augmented the evidence of Ms. Nerval at trial.

Excluding Prejudicial Evidence in BC Civil Claims


One exception to the general rule that relevant evidence should be admitted in a civil trial deals with prejudice.  If the prejudicial effect of relevant evidence outweighs it’s probative value a trial judge has the discretion of excluding it.  The BC Court of Appeal recently discussed this principle in the context of an ICBC claim.
In today’s case (Gray v. ICBC) the Plaintiff was involved in a motor vehicle collision.  She was allegedly at fault for this crash and was sued by the driver and passenger in the other vehicle involved in the collision.  The Plaintiff was insured with ICBC.  ICBC denied coverage to the Plaintiff arguing that she was impaired at the time of the crash and therefore in breach of her insurance.  The Plaintiff sued ICBC arguing she was not impaired and that ICBC was required to provide her coverage.
After the crash the Plaintiff was given a breathalyzer test by the Vancouver Police Department and her test yielded readings well above the legal limit.  At trial the Plaintiff argued that the breathalyzer readings were faulty because the machine was not set up properly.  ICBC responded with expert evidence stating that “there is nothing to indicate that the Breath Test Supervisor did not set up this instrument correctly“.   The Plaintiff countered pointing out that there was nothing in the police files indicating what set up steps were taken by the Breathalyzer Supervisor.  This left ICBC scrambling and in the course of trial they were able to locate the Breathalyzer Supervisor and the notes detailing the set up steps that were taken at the relevant time.
The Plaintiff objected to this evidence being introduced arguing that it’s late disclosure was severely prejudicial.  The trial judge agreed.  The Court held that while the supervisor could testify he could not rely on  or refer to the breathalyzer maintenance notes in giving his evidence.  Ultimately the Plaintiff succeeded at trial with the judge finding that she was not in breach of her insurance.  ICBC appealed arguing the trial judge was wrong in excluding the evidence.  The BC Court of Appeal allowed the appeal and ordered a new trial.  In doing so the BC High Court provided the following reasons about the exclusion of prejudicial evidence:
As Mr. Justice Wood said, speaking for this Court in Anderson (Guardian ad litem) v. Erickson (1992), 71 B.C.L.R. (2d) 68 (C.A.), “There is no doubt that a Judge trying a civil case in Canada has a discretion to exclude relevant evidence on the ground that its prejudicial effect outweighs its probative value”…

[27]         In my view, the trial judge erred in her approach to the exclusion of the documentary evidence prepared by Mr. Czech. In exercising her discretion, she was required to balance the probative value of the evidence against the potential prejudice to Ms. Gray of its admission and to make a judgment whether the prejudice outweighed the probative value. It is apparent that she did not undertake this exercise. Rather, she excluded the evidence after balancing the prejudice to the respondent, Ms. Gray, if the evidence were admitted against the prejudice to the appellants if it were excluded. Thus, she erred in principle in her approach and in failing to take into account a critically important factor – the probative value of the impugned evidence. It follows that she did not exercise her discretion judicially.

[28]         Moreover, the trial judge erred in prohibiting Mr. Czech from using his records to refresh his memory. Witnesses are entitled to refresh their memory by any means, including by inadmissible evidence: see R. v. Fliss, 2002 SCC 16, [2002] 1 S.C.R. 535.

Interestingly the BC Court of Appeal did not determine whether the evidence should have been excluded, rather that the wrong test was used.  The Court directed a new trial requiring the correct principle to be applied in deciding whether the evidence should be admitted.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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