R. v. Olderskog, 2010 ABQB 744

Court of Queen ’ s Bench of Alberta Citation: R. v. Olderskog, 2010 ABQB 744 Date: 20101201 Docket: 061261624S1 Registry: Grande Prairie Between: Her Majesty the Queen Respondent - and - Ernest Ole Olderskog Appellant _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice E.A. Hughes _______________________________________________________ Introduction [ 1 ] The Appellant, Ernest Ole Olderskog, appealed his convictions under the Wildlife Act . At the hearing of the appeal, I orally dismissed all grounds of appeal set out in the Appellant’s Memorandum.

However, late in oral argument, counsel for the Appellant raised a new ground of appeal, that being whether the trial judge erred in finding the Appellant had lied in his statement to the Investigating Wildlife Officer when the statement was admitted “for the truth of its contents”. These lies were used by the trial judge in convicting the Appellant. As a result of this new issue being raised at the hearing, both counsel filed additional written argument. [ 2 ] I have concluded I must allow this ground of appeal. Therefore, I set aside the convictions and order a new trial on all counts.

Facts [ 3 ] At the commencement of the Appellant’s trial, the Crown and Defence entered a book of documents as an exhibit by consent. One of the documents in the booklet was the statement made by the Appellant to a Wildlife Officer which was both inculpatory and exculpatory. The inculpatory aspects of the statements included that the Appellant was in the region where the shooting occurred, that the Appellant had been hunting earlier that day, the Appellant had a 9mm Magnum in his possession on the day in question, and the Appellant had not lent his gun to anyone since 1970.

Exculpatory portions of the statement included the Appellant’s assertion that he did not shoot the deer and the reason he gave for being in the location, which was to use the washroom. [ 4 ] When the exhibit was tendered by the Crown, the Crown stated: Contained within that exhibit book as Exhibit 9 [tab 9] is the statement of Mr.

Olderskog, which I understand is not being contested as to voluntariness or Chartering, and the contents are being admitted for the truth of their ... the truth of its contents . (Trial Transcript at 3-4)) [emphasis added] [ 5 ] Defence affirmed the Crown’s statement as to the admission of the Appellant’s statement. [ 6 ] At the appeal hearing, counsel for the Appellant raised the new argument that the admission of the Appellant’s statement for the truth of its contents created an agreed statement of facts, and as a result, the trial judge had no choice but to accept the Appellant’s statement as truthful.

Therefore, the trial judge erred by finding the Appellant had lied in the exculpatory portions of the statement. Issue What was the effect of the Crown and Defence introducing the Appellant’s statement “for the truth of its contents”? Analysis [ 7 ] When evidence is adduced “for the truth of its contents,” it is also considered to be submitted “as proof of the facts asserted therein”: John Sopinka, Sindney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada 2d ed. (Markham: Butterworth, 1999) at

article 6.16. The term “for the truth of its contents” generally arises in discussions on the admissibility of hearsay evidence. The rule against hearsay provides that an out-of-court statement cannot be adduced for the truth of its contents.

An out-of-court statement can be offered for a purpose other than for the truth of its contents and not offend the rule against hearsay: Ron Delisle, Don Stuart & David Tanovich, Evidence: Principles and Problems, 8 th ed. (Scarborough: Thomson, 2007) at 681. [ 8 ] Generally, the trier of fact has the discretion to determine the probative value of the evidence put forward by the parties: David M. Paciocco & Lee Stuesser, The Law of Evidence, 5 th ed. (Toronto: Irwin Law, 2008) at 41.

However, where parties submit an agreed statement of facts to the court, both the parties and the court are bound to accept and not depart from the agreed statement of facts: Chenier v. Stephens , [2000] O.J. No. 2721 at para. 11 (Sup. Ct. J.) ; Cardinal v. Canada (1998), 222 N.R. 218 at para. 5 (F.C.A.) ; R. v. Lamothe , [2005] O.J. No. 5714 at para. 6 (Sup. Ct. J.) .

[ 9 ] Conversely, absent an agreed statement of facts, the mere entering of documents into evidence by the consent of both parties does not mean that the parties are agreeing that the documents are being adduced for the truth of their contents: Gottardo v. Gottardo , 2007 CarswellOnt 4035 at para. 12 ; Hervieux-Payette c. Societe St-Jean-Baptiste de Montreal, 2002 CanLII 8266 (QC CA) , [2002] R..J.Q. 1669 at para. 66 (C.A.) Rothman J.A., dissenting. Similarly, parties are able to agree on an exhibit book without agreeing to the truth of the contents thereof: Jusza v.

Dobosz , 2003 ABQB 512 , 340 A.R. 125 at para. 34 ; Rankin v. Madawaska Club Ltd. , [1968] O.J. No. 348 at paras. 5-6 . Furthermore, parties are able to lead contradictory evidence to rebut the truth of the contents of the exhibits in an agreed exhibit book: Sawridge Band v. Canada , 2004 FC 1721 , 263 F.T.R. 313 at para. 27 . [ 10 ] However, where parties consent to entering a document for the truth of its contents, one of the parties cannot later challenge the admissibility and use of the document: R. v. deKock , 2009 ABCA 225, 454 A.R. 102 . In deKock , banking records were entered into evidence at trial.

On appeal, the Appellant contested the use and admissibility of the banking records.

The Court of Appeal found that the records had been admitted for the truth of their contents as the records were attested to by a banker’s affidavit and additionally, the Appellant’s counsel on appeal indicated that the records were admitted “to avoid having somebody from the bank come and swear it all”: DeKock at para. 27. [ 11 ] The key issue here is whether the admission by both counsel that the Appellant’s statement was admitted “for the truth of its contents” amounted to or had the same effect as an agreed statement of facts.

I find the admission did create an agreed statement of facts when I take into account the assertions of both counsel at this point in the trial. As a result, the trial judge was bound by the admission and fell into err when he rejected some of the Appellant’s evidence. Conclusion [ 12 ] The Appellant’s appeal is allowed and a new trial is ordered. Heard on the 14 th day of June, 2010. Additional written argument filed on August 17 th , 2010 and September 17 th , 2010. Dated at the City of Calgary, Alberta this 26 th day of November, 2010. E.A. Hughes J.C.Q.B.A. Appearances: Jasmine K. Sihra for the Crown

Charles D. Cousineau for the Accused