Judgments

[1993] 2 C.F. 651

A-945-91

Réjean A. Éthier (Appellant) (Applicant)

v.

The Commissioner of the Royal Canadian Mounted Police and The Public Service Commission (Respondents) (Respondents)

Indexed as: Éthier v. Canada (RCMP Commissioner) (C.A.)

Court of Appeal, Hugessen, Stone and Décary JJ.A.—Ottawa, February 26, 1993.

Evidence — Appeal from Motions Judge’s decision rejecting appellant’s supplementary affidavit and exhibits thereto as hearsay — Law of hearsay changed by two recent SCC decisions — Hearsay evidence now admissible on basis of reliability, necessity — Reliability criterion met — Declarants most likely truthful as documents advanced by appellant to support own case — Possibility of mistake remote — Criterion of necessity met, respondents, by counsel, having blocked normal means of access to material — Production of documents by supplementary affidavit most practical and convenient way to bring them forward — Appeal allowed, new hearing ordered.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Access to Information Act, R.S.C., 1985, c. A-1.

Federal Court Act, R.S.C., 1985, c. F-7, s. 18.

Federal Court Rules, C.R.C., c. 663, R. 332.1(6) (as enacted by SOR/90-846, s. 10).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

R. v. Khan, [1990] 2 S.C.R. 531; (1990), 59 C.C.C. (3d) 92; 79 C.R. (3d) 1; 113 N.R. 53; 41 O.A.C. 353; R. v. Smith, [1992] 2 S.C.R. 915; (1992), 94 D.L.R. (4th) 590; 75 C.C.C. (3d) 257; 15 C.R. (4th) 133; 139 N.R. 323; 55 O.A.C. 321.

APPEAL from decision of Motions Judge ([1992] 1 F.C. 109; (1991), 45 F.T.R. 310 (T.D.)) rejecting appellant’s supplementary affidavit and exhibits thereto as hearsay. Appeal allowed.

COUNSEL:

Charles T. Hackland and Patricia Brethour for appellant (applicant).

Geoffrey S. Lester for respondents (respondents).

SOLICITORS:

Gowling, Strathy & Henderson, Ottawa, for appellant (applicant).

Deputy Attorney General of Canada, for respondents (respondents).

The following are the reasons for judgment of the Court delivered orally in English by

Hugessen J.A.: We are all of the view that the learned Motions Judge [[1992] 1 F.C. 109] erred when he rejected the appellant’s supplementary affidavit sworn 29 April 1991 and the exhibits thereto on the grounds that they were hearsay. In the Motions Judge’s favour let it be said at once that he did not have drawn to his notice the then recent decision of the Supreme Court of Canada in R. v. Khan.[1] The subsequent decision of the Supreme Court in R. v. Smith[2] had, of course, not even been delivered at the time of the judgment under appeal.

As we read them, those two decisions dramatically clarified and simplified the law of hearsay in this country. As Lamer C.J. said in Smith, they “signalled an end to the old categorical approach to the admission of hearsay evidence. Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence, and its necessity.” (At page 933.)

The evidence here sought to be introduced consisted of materials which the appellant had obtained from the Public Service Commission, one of the respondents, following a request under the Access to Information Act.[3] It is not without significance that respondent’s counsel had generally refused requests for production of such documents during the preliminaries leading up to the hearing in the Trial Division. The documents are in two categories, file notes and memoranda relating to an investigation carried out by the Public Service Commission at appellant’s request (exhibit A), and contemporary official documents generated by the Commission or by the Royal Canadian Mounted Police (exhibit B). Both categories relate directly either to the decision to hold an open competition to fill for an indeterminate period the position then held by the appellant on a term basis, or to the competition itself. Those two matters were, of course, the very subject of the section 18 [Federal Court Act, R.S.C., 1985, c. F-7] proceedings in the Trial Division.

In our view, in the circumstances of this case, the documents in question meet the first criterion of reliability. We, of course, say nothing of the weight they should have at this stage, but on a prima facie basis we think that the manner in which they were generated is such as to “substantially negate the possibility that the declarant was untruthful or mistaken.”[4] These are the respondents’ own documents created during an internal investigation into alleged improprieties in the appointment process. To the extent that they are advanced by the appellant to support his case, it is almost inconceivable that the various declarants would have said anything that was untrue. As to the possibility of mistake, while it is always present, we can see nothing in the circumstances which would lead us to believe that it is realistic in this case, at least in so far as the preliminary question of admissibility is concerned, to say that the declarants erred.

There can equally be no serious question as to the criterion of necessity in the circumstances. Respondents, by their counsel, had blocked any normal means of access to the material. Even once it was obtained through Access to Information Act proceedings it was hardly realistic to expect appellant’s solicitor to approach the various declarants and seek affidavits from them, assuming that he could have done so without committing a serious breach of professional ethics. Their production, by means of the supplementary affidavit, was clearly the most practical and convenient way to bring them forward without putting in jeopardy any of the respondents’ rights to reply or explain if they wished to do so.

In the Trial Division the respondents also objected to the production of the supplementary affidavit on the grounds of the prohibition in Rule 332.1(6) [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/90-846, s. 10)].[5] The Motions Judge did not deal with this question in his reasons for judgment and respondents’ counsel conceded on the hearing of the appeal that the decision on the evidentiary question could and should be determinative of the question of whether discretion should be exercised in favour of allowing the supplementary affidavit to be filed.

In view of the conclusion we have reached on the admissibility of the supplementary affidavit, we do not think we should deal with the other grounds advanced by the appellant. The whole evidentiary basis upon which the Motions Judge proceeded has now changed. We have carefully considered whether we should now proceed to decide the merits of the section 18 application in his place and have concluded that it is not appropriate that we should do so. The Motions Judge was clearly of the view that the inferences which he could draw from the appellant’s material were not strong enough to overcome in his mind the positive assertions in the respondents’ affidavits that no impropriety had taken place. The material which we have now found to have been wrongly excluded is manifestly of a nature to permit other, similar inferences to be drawn and we are simply unable to say whether their cumulative effect would have been enough to change the result in the Judge’s mind. There must, therefore, be a new hearing.

The appeal will be allowed, the order of the Trial Division dated August 6, 1991, will be set aside and a new hearing ordered. The appellant is entitled to his costs of the appeal; the costs of both hearings in the Trial Division will be at the discretion of the Motions Judge.

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