Appendix K Memorandum of Law - s. 9(2) of the Canada Evidence Act

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Appendix K Memorandum of Law Justice Estey’s dissenting opinion in McInroy was a major component in the Supreme Court of Canada’s 1993 watershed decision on the substantive admissibility and evidentiary value of prior inconsistent statements under s. 9 of the CEA in R. v. B(K.G.) 79 . (8) The Meaning of ‘Inconsistency’ Under Section 9(2) of the CEA An issue respecting the meaning of the term ‘inconsistency’ under s. 9(2) of the CEA arose in McInroy, a murder trial involving multiple accused. A key Crown witness, Kathy St. Germaine, provided a statement to the police indicating that she had a conversation with one of the accused, Howie McInroy. Her statement indicated that McInroy confessed to the murder during their conversation. At McInroy’s trial, held seven months after she gave her statement to the police, St. Germaine was called by the Crown and testified that she could not recall the conversation. The Crown argued that her testimony was inconsistent with her prior statement to the police and made an application to cross-examine St. Germaine on the statement under s. 9(2) of the CEA. During the voir dire, St. Germaine acknowledged her initials on each page of the statement and acknowledged her signature at the end of the document. She also testified that she recalled giving the statement to the police. However, when questioned on the contents of the statement, she maintained that she could not remember the conversation with the accused. 80 At the conclusion of the voir dire, the trial judge initially rejected the Crown’s application to cross-examine St. Germaine in the presence of the jury, but subsequently reversed himself and granted the application. Accordingly, the Crown cross-examined St. Germaine on her statement in front of the jury and she again testified that she could not recall her conversation with the accused. Near the end of the cross-examination, she agreed with Crown counsel that she did not lie, and had told the police the truth at the time she gave the statement. However, she maintained that she could not recall her conversation with the accused. Justice Martland, who wrote for the majority, stated as follows at pages 602 to 605: In his charge to the jury the trial Judge said: Now, as to evidence concerning what she said in the statement, I must ask you to bear in mind that the only evidence you can consider from her is the evidence she gave in this courtroom. She has had questions and answers put to her that were made at some earlier time and she has, in most cases, rejected them in the sense that she says she simply cannot remember them. Those questions and answers put to her which she could not remember, do not constitute evidence because she has not accepted what has been said to her, and I must expressly direct you that those portions of that prior statement are not to be taken as evidence of the truth of the statements contained therein, but merely serve to test her credibility as a witness, so once again I repeat that in light of her continued inability to remember those questions and answers, they do not form part of her evidence and accordingly are not to be taken as evidence of the truth of what is contained therein, but are only to be considered by you in testing or determining her credibility as a witness. The Court of Appeal unanimously held that the trial Judge had erred in permitting Crown counsel to crossexamine Mrs. St. Germaine concerning the statement. The reason given by Chief Justice Farris is as follows [at p. 264]: 79 [1993] 1 S.C.R. 740 (“B(KG)”). 80 The portion of the case containing Crown counsel’s cross-examination of St. Germaine on the voir dire is located at pages 595 to 601 of the judgment: see McInroy, supra note 62. It is noteworthy that Justice Martland (for the majority) concluded that the questions and answers on the voir dire were “very similar to those which are cited in the Milgaard case, at pp. 218-9”: see McInroy, supra note 62. 2599
Appendix K Memorandum of Law In my view, the Judge was in error in ruling that the witness could be cross-examined by the Crown as an adverse witness. At the stage when the application was made initially to cross-examine on the basis of s. 9(2), the evidence of the witness can be summarized as follows: (1) That McInroy and Jordan had returned to her house at approximately the time as Jordan said they did. (2) That she had a conversation in the kitchen with McInroy. (3) That she had gone for a ride with McInroy and he had instructed her to throw a paper bag out of the window. There could be no reason for the Crown to challenge these three items of evidence. The Crown’s purported purpose in using the previous statement was on the issue of her credibility. But credibility was not in issue. Mrs. St. Germaine had testified to nothing damaging to the Crown’s case. She had simply disclaimed any present relevant testimonial knowledge of the conversation with McInroy. In such a case a prior inconsistent statement of facts favourable to the proponent of the witness may not be used to impeach her. With great respect, I am not in agreement that there was error in this case on the part of the trial Judge. The basis for the Court’s conclusion that there was error is stated in the first sentence of the passage quoted “in ruling that the witness could be cross-examined by the Crown as an adverse witness’. Following this statement reference is made to the evidence given by Mrs. St. Germaine prior to questions and answers leading to the Crown’s application. Her earlier evidence was not adverse to the Crown’s position. The inference is that this prevents her from being regarded as an adverse witness. Section 9(2) is not concerned with the cross-examination of an adverse witness. That subsection confers a discretion on a trial Judge where the party producing a witness alleges that the witness has made, at another time, a written statement inconsistent with the evidence being given at the trial. The discretion is to permit, without proof that the witness is adverse, cross-examination as to the statement. The task of the trial Judge was to determine whether Mrs. St. Germaine’s testimony was inconsistent with her statement to the police. In my opinion, he was properly entitled to conclude that it was. At trial Mrs. St. Germaine swore that she could not recall any part of the conversation with McInroy in the kitchen of her house on the night of the killing, although only some seven months earlier she had given to the police, in her written statement, the details of that conversation, including McInroy’s admission that he was the murderer. If her statement at trial as to her recollection was true, inconsistency would not arise, but the trial Judge saw Mrs. St. Germaine and heard her evidence on the voir dire. It was quite open to him to conclude that she was lying about her recollection and to form his own conclusions as to why she was refusing to testify as to her true recollection of a conversation, and what was contained in her written statement, i.e., a detailed recollection of it. … The granting of the Crown’s application was a matter for the sole direction of the trial Judge and, in my view, he had adequate grounds for exercising that discretion as he did. Having granted the application the Crown was entitled to cross-examine Mrs. St. Germaine before the jury. The trial Judge was careful to explain, in the passage I have already quoted, the limited extent to which that cross-examination might be considered by the jury. [Emphasis added]. McInroy holds that where a witness claims that he or she has no recollection of the matters contained in a prior statement, it is within the sole discretion of the trial Judge to find that the witness is lying about his or her lack of recollection and conclude that there is an ‘inconsistency’ between the witness’ testimony and the prior statement. 81 That is, an ‘inconsistency’ will arise under s. 9(2) of the CEA even when a witness 81 See also the excerpt from Witnesses, supra note 15, containing an explanation of the McInroy case and comments on meaning of the term ‘inconsistency’ . 2600
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Appendix K Memorandum of Law - s. 9(2) of the Canada Evidence Act

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