R v Soni, 2014 ABQB 649

Court of Queen ’ s Bench of Alberta Citation: R v Soni, 2014 ABQB 649 Date: 20141023 Docket: 110247475Q2 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Jayant Soni Accused _______________________________________________________ Reasons for Decision on Voir Dire #1 of the Honourable Madam Justice D.L. Shelley _______________________________________________________ Background [ 1 ] Mr.

Soni stands trial for dangerous driving causing death and street racing causing death pursuant to ss. 249(4) and 249.4(4) of the Criminal Code . [ 2 ] The Crown seeks to enter, as evidence in the trial, a statement of claim (the “Statement of Claim”), filed in this Court by Mr. Soni on April 10, 2012 against Marc Lablanc, administrator ad litem of the Estate of Jeremie Lablanc, deceased, and Marc Lablanc. Jeremie Lablanc is the deceased complainant in the charges faced by Mr.

Soni in this trial. [ 3 ] A voir dire was held to determine the admissibility of the Statement of Claim in these proceedings. [ 4 ] The Statement of Claim was entered as an exhibit on the voir dire . No other evidence was presented concerning the status of the civil lawsuit initiated by the Statement of Claim. [ 5 ] These are my reasons for deciding that the Statement of Claim ought not to be admitted in evidence in this trial.

The Issues [6] The main issue is whether the Crown ought to be permitted to enter the Statement of Claim and, if so, on what basis and forwhat purpose. [7] In determining these issues, I will consider: 1) whether the sealing of the copy of the Statement of Claim by the Clerk of the Court brings it within the judicial documentsexception; 2) whether the facts alleged in the Statement of Claim constitute “admissions”; 3) if so, whether the allegations in the Statement of Claim are declarations against interest; and 4) if not, whether the allegations would be admissible under the principled exception to hearsay.

Position of the Parties A. Crown’s Position [8] The Crown relies on: R v Starr, 2000 SCC 40; R v Mapara, 2005 SCC 23; R v White, (SCC), [1999] 2SCR 417; R v Kobold, (SK KB), [1928] 3 WWR 294 (Man CA); R v Tatomir, 1989 ABCA 233; leave denied [1989]53 CCC (3d) vii (SCC); R v Prochazka (1997), (AB KB), 199 AR 227 (QB); R v C(WB) (2000), (ON CA), 130 OAC 1 (CA); aff’d on other grounds 2001 SCC 17; R v Reid, 2007 ABPC 34; R v Truong, 2008 BCSC 1151. [9] The Crown takes the position that the Statement of Claim fits into a traditional hearsay exception and is thereforepresumptively admissible unless Mr.

Soni overcomes that presumption. It relies on the judicial document exception and submits that theStatement of Claim should be admitted for the truth of its contents. [10] The Crown further submits that Starr and Mapara must be read together and stand as authority that the Court should beflexible on questions of admissibility in permitting exceptions using a principled analysis.

Put another way, the adoption of theprincipled approach is a rejection of a pigeon-hole approach and must be applied to both the inclusion and exclusion of evidence. [11] The adoption of the principled approach will result in a revisiting of the hearsay exceptions as well as the creation of newexceptions. In all cases, the principled approach will require consideration of the reliability and necessity of the evidence sought to beeither included or excluded. Furthermore, there is a distinction to be drawn between threshold reliability and ultimate reliability.

TheCrown submits that threshold reliability is met in this case and that I, as the trier of fact in a judge alone trial, will be in a good positionto assess the weight that should be placed on the Statement of Claim. [12] The Crown submits that the judicial documents exception applies here. The Crown points to the case law cited above whereinvarious documents were admitted under that exception. [13] The Crown submits that the Statement of Claim was filed on behalf of Mr. Soni and accordingly it should be considered anadmission from his own mouth created with the benefit of counsel.

The involvement of counsel in its creation and filing creates acircumstantial guarantee of trustworthiness of the statements contained in the Statement of Claim. Involvement of counsel alsoeliminates any concern regarding the voluntariness of the statement, the state of mind of Mr. Soni when it was made, or Mr. Soni’scapacity at such time. The Statement of Claim constitutes a statement made to this Court through counsel. Furthermore, the Crown asksme to infer that the Statement of Claim would have been drafted in a manner most beneficial to Mr. Soni’s own position. [14] The Crown points out that Mr.

Soni has control over his lawyer’s file in the civil proceedings and could have called evidencein the voir dire to deny or qualify the statements contained in the Statement of Claim. [15] Finally, the Crown submits that admission of the Statement of Claim would not render the trial unfair and would have verylittle prejudicial effect. B. Mr. Soni’s Position [16] Mr. Soni relies on: ss. 13.6 to 13.8 of the Alberta Rules of Court; s. 3(1) of the Limitations Act, RSA 2000, c L-12; s. 4.02.4of the Sample CRIMJI Jury Instructions; R v Youvarajah, 2013 SCC 41; R v Evans, (SCC), [1993] 3 SCR 653, 145 AR81. [17] Mr.

Soni objects to the admission of the Statement of Claim for several reasons. He points out that the statements contained inthe Statement of Claim were not made by him under oath and submits they are nothing more than a series of unproven allegations,broadly drawn, using words chosen by his counsel, who did not have a duty to verify the truth of the statements included in the Statementof Claim. There is no evidence that Mr. Soni ever adopted the statements contained in the Statement of Claim or that he even understandswhy particular statements were included.

The statements, being allegations which must be proven in court, should not be confused withstatements of fact. The Statement of Claim is equivalent to an indictment in a criminal proceeding and is proof of nothing. [18] Furthermore, Mr. Soni argues that the Statement of Claim is analogous to the compelled Motor Vehicle Act statements dealt

with in White . Mr. Soni argues that the two year limitation period imposed under Alberta’s Limitations Act compelled him to file the Statement of Claim. [ 19 ] Mr. Soni also relies on Youvarajah , in which a non-accused witness in a criminal trial had adopted and signed an agreed statement of facts which had been prepared by counsel and admitted in a prior criminal proceeding. The Supreme Court of Canada refused to allow its admission in a subsequent criminal trial even though it had been adopted previously and never retracted.

The Court pointed out the dangers of using out-of-court statements in criminal proceedings. Mr. Soni submits that Youvarajah was a much stronger case for admission and yet admission was denied. [ 20 ] In Evans the Supreme Court of Canada dealt with the admissibility of out-of-court statements as admissions of the accused. The Court concluded that the out-of-court statements could not be used as admissions of their truth unless they fell under an exception to the hearsay rule.

The Court concluded that the trial judge should have first considered whether the evidence proved on a balance of probabilities that the statements had been made by Mr. Evans. It is only after this preliminary determination has been made and the judge concludes that the statement was made by an accused that the judge can move to the second stage of the analysis, a consideration of the contents of the statement in the light of other evidence in determining the issue of innocence or guilt. [ 21 ] Mr.

Soni points out that anyone (other than a person who is subject to a vexatious litigant order) can file a statement of claim without scrutiny of any sort. A statement of claim can include any allegation, however outlandish, and still be accepted for filing by the Court. This does not make the statements contained in the statement of claim facts. Furthermore, a statement of claim can be discontinued, amended, struck or dismissed anytime. [ 22 ] Mr.

Soni submits that the Crown has provided no authority in support of its position that a plaintiff, whether himself or someone else, should be assumed to have impliedly adopted the statements contained in a statement of claim filed by that plaintiff. Furthermore, the Crown has provided no proof of its actual adoption by Mr. Soni. [ 23 ] Mr. Soni refers to the Crimji Jury Instruction cited above for the proposition that evidence in a criminal matter includes viva voce testimony, exhibits entered and admissions made in the criminal trial. Statements made in pleadings in civil matters are not evidence. [ 24 ] Mr.

Soni submits that a statement of claim does not fall under a judicial documents exception and that, even if it did, it would still have to meet the necessity and reliability criteria. He submits that the Crown has not established necessity in this case and that the Statement of Claim has no features of reliability attached to it. [ 25 ] Mr. Soni submits that it would be unfair to admit the statement of claim, that its admission would result in actual or potential mischief, and that it ought not to be admitted. Analysis 1.

Does sealing of a copy of the Statement of Claim by the Clerk of the Court bring it within the judicial documents exception? [ 26 ] The Crown relied on a number of authorities related to the admission of documents that have been certified by the clerk of the court.

If I have correctly understood the Crown’s argument, the Crown suggests that because the copy of the Statement of Claim proposed to be entered as an exhibit has been certified by the Clerk and bears the Clerk’s seal, it is admissible as an exception to the hearsay rule as it constitutes a judicial document. [ 27 ] Certification and sealing of a document by the Clerk of the Court does eliminate the necessity of calling the Clerk of the Court, or his or her delegate, to authenticate a document.

There is no disagreement that the certified copy of the Statement of Claim produced as an exhibit in this voir dire is an authentic and true copy. [ 28 ] However, I do not agree that certification and sealing of a copy of the Statement of Claim as a true copy of the document filed with the court entitles it to automatic admission in this criminal trial for the truth of its contents. [ 29 ] The cases dealing with the effect of sealing of copies of court documents certified by the clerk are not helpful in addressing the real issues before me on this voir dire . [ 30 ] In Kobold , documents, including a statement of claim, were tendered to establish that false statements made under oath were made in a “judicial proceeding”.

The deputy registrar was called to testify that an oath was administered to the accused in the civil context, and a special examiner gave evidence that an oath was administered upon his examination for discovery. [ 31 ] In Tatomir the document in question was a certified copy of an Order of Driving Prohibition Against an Offender. The document was admitted to establish the fact that the accused was prohibited from driving at the relevant time. Similarly, in Prochazka the Court admitted similar proof of a prior conviction and driving prohibition by way of a court sealed copy of an information.

The Criminal Code provided that such a certificate was evidence of the facts alleged therein. The question in those cases was really whether the Crown was required to provide notice prior to adducing the evidence in question. [ 32 ] In Reid , the Court admitted a certified copy of the information and endorsements, together with a recognisance which the

accused was alleged to have breached. Again, the question was whether the Crown was required to provide notice. The contents of acourt file, including a recognizance, were deemed admissible for the same purpose in Truong. [33] In C(WB), the Court admitted a transcript of facts read in court in support of the accused’s prior guilty plea on a similarcharge. It had not been signed or certified.

The Court held that the facts supporting the plea were admissions, and the transcript met therequirements of necessity and reliability. [34] None of these cases supports the proposition that allegations in a Statement of Claim filed in a civil suit are admissible underthe judicial documents exception as admissions and for the truth of their contents. 2. Are the facts alleged in the Statement of Claim “admissions”? [35] Before embarking on this issue, I will dispense with Mr. Soni’s argument that the allegations in the Statement of Claim arecompelled under the Limitations Act.

Contrary to reporting requirements in the traffic safety area, the Limitations Act imposes noobligation on any person to file a claim.

It is not compelled. [36] As for whether it contains “admissions”, the authors of the Civil Procedure Encyclopedia (Edmonton: Juriliber, 2003) at 21-51 cite 352384 Alta v Nosh, [1990] AUD 14 (Alta Master) for the proposition that, until amended, a statement of facts in any pleading isan admission binding the party filing it, despite evidence to the contrary. [37] Further, counsel has implied authority to make an admission on behalf of a client, provided, in the honest exercise of hisjudgment, he thinks it is proper, and provided it is incidental to the suit.

The fact that the client has not expressly authorized theadmission to be made does not, in itself, entitle a client to subsequently withdraw it: The Law of Evidence in Canada, 4th ed (Markham,Ontario: LexisNexis, 2014) at §19.3. [38] However, in Korte v Deloitte, Haskins & Sells (1996), 1996 ABCA 15 , 178 AR 199 (CA), Hunt J.A., for the Court,expressed the view that an allegation in a statement of claim, without more, is not an admission. The plaintiffs applied to amend theirstatement of claim where the pleadings had not yet closed.

They argued that the allegation which they sought to amend was not anadmission, on the ground that an admission must be responsive and, in the context of pleadings, must be something that is responsive toan allegation made by the opposite party. The Court found that the Rules tended to support that view.

Hunt J.A. concluded at para 15: I do not find it necessary to decide whether it is ever possible to have an admission in a Statement of Claim, although in the face of theRules mentioned above I am inclined to the view that it is not. [39] Master Prowse cited Korte as authority for this proposition in Jackson v Yee, 2009 ABQB 679, 486 AR 242. As well, inCanadian National Railway v Huntingdon Real Estate Investment Trust, 2013 MBCA 3 at para 108, the Court cited Korte as supportfor the principle that admissions of fact are rarely found in a statement of claim. [40] Ontario courts have reached the same conclusion.

Leach J., in Petrasovic Estate v 1496348 Ontario Ltd (cob Honest LawyerRestaurant), 2012 ONSC 4897 at paras 25-31, embarked on an extensive review of the relevant case law. He concluded that, in order toconstitute an admission, an allegation in a statement of claim must be an unambiguous deliberate concession made by the party pleadingit to a position taken by the opposing party, and such an admission would be rare in a statement of claim. The Court in Wolfe v Wyeth,2013 ONSC 7867 undertook a similar review and reached the same conclusion.

It held that the proposed amendments in that case did notinvolve the withdrawal of an admission, but rather removed particularity and description from the statement of claim. [41] In 1194388 Ontario Inc v Toronto-Dominion Bank, 2014 ONSC 215 at para 20, the Master held that the defendant’sadmission in its statement of defence of the plaintiff's allegation in the statement of claim did not make the allegation in the statement ofclaim an admission. [42] I conclude that Korte reflects the general state of the law regarding whether allegations in a statement of claim, without more,constitute “admissions” for the purposes of the civil rules regarding amendments amounting to withdrawal of allegations. [43] Korte premised its analysis on the former Rules of Court.

Current Rule 7.2(

a) provides that, on application supported by anaffidavit, the Court may at any time in an action give

summary judgment or an order to which an applicant is entitled when “admissionsof fact are made in a pleading or otherwise”. However, where litigation is not resolved in that manner, Rule 6.37 sets out the procedurerelating to a notice to admit. Rule 6.37(7) provides that an admission under that Rule is made only for the specific purpose for which it ismade and may not be used as an admission against the party making it on any other occasion, or in favour of a person other than theperson requesting the admission, without the agreement of the party making the admission.

One might argue that Rule 6.37 is onlyintended to apply to facts not set out in the allegations contained in the Statement of Claim. However, the Rule is not expressly restrictedin that respect. [44] There is nothing before me that suggests the allegations in the Statement of Claim were deliberate concessions to a positiontaken by a defendant. Further, the position of Mr. Soni in the vehicle may have been a non-essential averment in the Statement of Claimin the civil context, subject to possible future amendment.

There is nothing to suggest that such an amendment would have prejudiced thedefendant. [45] In Burns v Burns, (AB KB), [1961] AJ No 9, 35 WWR 27 (SC), Farthing J. in chambers held that a partycan abandon part of his pleadings at any time. Current Rule 4.36(1) confirms that before a date is set for trial, a plaintiff may discontinueall or any part of an action against one or more defendants. Discontinuance means that Rule 6.37(7) is no longer available to a defendant

in a civil suit, and an allegation in a statement of claim could not be converted thereafter to the more definitive status contemplatedthrough the notice to admit procedure or otherwise. [46] The only information before me concerning the civil suit brought pursuant to the Statement of Claim is the certified copy ofthe Statement of Claim itself.

There is no evidence as to the current status of that lawsuit, including: whether the defendants have filed astatement of defence admitting any of the statements set out in the Statement of Claim; whether proceedings have been taken (forexample questioning) which have supported or contradicted the statements made in the Statement of Claim; whether any notices to admithave been served and, if so, whether they have been responded to; and whether there has been any amendment to, or discontinuance of,the Statement of Claim. 3.

If the allegations in the Statement of Claim constitute admissions, are theydeclarations against interest? [47] The Courts in Ward v HS Pitt & Co, [1913] 2 KB 130 at 137-38, R v Demeter, (SCC), [1978] 1 SCR 538 andR v O'Brien, (SCC), [1978] 1 SCR 591 have provided the following requirements in order to establish that a statementconstitutes a declaration against penal interest (or pecuniary or proprietary interest), thereby falling within an exception to the hearsayrule: (

a) the declarant made a statement of a fact of which he had peculiar knowledge; (

b) the fact was to the declarant’s immediate prejudice, i.e. it was against his interest at the time when he stated it. If it may beconstrued for his interest or against it or may only be against his interest in certain future events, it is inadmissible; (

c) the declarant should have known the fact to be against his interest when he made it, because it is on the guarantee of truthbased on a man’s conscious statement of a fact “even though it be to his own hindrance”, that the whole theory of admissibility depends; (

d) the declaration would have to be made to such a person and in such circumstances that the declarant should haveapprehended a vulnerability to penal consequences as a result; otherwise, the declarant may have motives which make the declarationunreliable; the circumstances must be such that those hearing the statement might act on it or relate it to those who might act on it; (

e) the vulnerability to penal consequences would have to be not remote; (

f) the overall weight of the statement must be contrary to the interests of the declarant; if, when considered in its totality, theweight is in favour of the declarant, it is not against his interest; (

g) in a doubtful case, a Court might properly consider whether or not there are other circumstances connecting the declarantwith the crime and whether or not there is any connection between the declarant and the accused; and (

h) the declarant would have to be unavailable by reason of death, insanity, grave illness which prevents the giving of testimonyeven from a bed, or otherwise unavailable to testify, or due to absence in a jurisdiction to which none of the processes of the Courtextends. [48] Mr. Soni’s motive in the civil context was the pursuit of damages. In that context, the allegations in the Statement of Claimwere favourable to Mr. Soni’s pecuniary interests, in that they placed him in the vehicle and alleged wrongdoing against the defendants,both of which were necessary for the purposes of his civil suit.

In this sense, they were self-serving rather than against his interest. [49] There is nothing before me to suggest that Mr. Soni should have apprehended a vulnerability to penal consequences as a resultof making the allegations in the Statement of Claim.

If he did, any penal consequences were remote at the time, given the case law to theeffect that: allegations, without more, are not admissions even for the purposes of the civil lawsuit; a plaintiff retains an unfetteredability to discontinue his action before a trial date is set; and the Rules provide an express limitation regarding admissions obtainedthrough the notice to admit procedure.

He would reasonably have expected, given the case law set out above, that even a fact admittedthrough the notice to admit procedure would not be admissible as an admission in any other context without his consent. [50] The Court in R v Baksh, (ON SC), [2005] OJ No 2971, 199 CCC (3d) 201 (Sup Ct Just) considered aformal admission obtained in the criminal context. Specifically, the Crown sought to adduce an agreed statement of facts from theaccused’s first collapsed criminal trial in his second criminal trial as reliable formal admissions by the accused.

Defence counselsubmitted that the agreed facts ceased to have any independent evidentiary existence following the mistrial declaration, were not ordinaryadmissions in law, or were protected under s. 13 of the Charter as ineligible for use in any subsequent proceeding. [51] Hill J. held that the agreed statement did not constitute testimony, and thus was not precluded from use in a subsequentproceeding by s. 13. Further, the statement was voluntarily made with the benefit of legal advice and was never repudiated. Theadmissions were unqualified and general in nature.

The accused benefited from the withdrawal of charges and certain advantagesassociated with the delay of the trial's completion. There was no prejudice arising from the accused’s new defence. Therefore, the agreedstatements of facts survived as ordinary admissions subject to the right of the accused to explain, attack, or otherwise counter, as with anyother non-judicial admission. However, Hill J. held: 82 A statement of facts signed by an accused and provided to the prosecution in an effort to have a charge withdrawn, or to have theCrown agree to an acquittal, constitutes a statement or admission by the accused.

Where the tendered statement of facts is not subject toan express or implied limitation as to its use, the informal admission is properly receivable as evidence against the declarant in asubsequent legal proceeding. [52] Rule 6.37(7) is an express limitation as to the use that may be made of facts established through the notice to admit proceduresin a civil suit in Alberta. Korte and the Rules support the conclusion that even an admission established through the procedure relating to

a notice to admit is made only for the specific purpose for which it is made and may not be used as an admission against the partymaking it on any other occasion, or in favour of a person other than the person requesting the admission, without the agreement of theparty making the admission. It would be illogical if a mere allegation in a claim, without more, was not implicitly subject to the samelimitation. [53] For all of these reasons, a plaintiff (including Mr.

Soni) can reasonably be taken to expect that the use to be made of anallegation in a statement of claim, without more, does not constitute an admission and is probably limited to that particular proceeding,undermining the suggestion that it is a statement against interest for the purposes of criminal charges. [54] Therefore, I conclude that, even if I had found that the allegations in the Statement of Claim constituted admissions, theywould not fall within the hearsay exception of declarations against interest. 4.

Would the allegations in the Statement of Claim be admissible as hearsayunder the principled exception to hearsay? [55] The courts have drawn a distinction between statements against interest and hearsay: R v Foreman (2002), (ON CA), 62 OR (3d) 204, [2002] OJ No 4332, 169 CCC (3d) 489 (CA), R v NRR, 2013 ABQB 288 at paras 378-80. [56] In R v Evans, (SCC), [1993] 3 SCR 653, the Court explained that the rationale for admitting an admissionrests on the theory of the adversary system; a party cannot object that he had no opportunity to cross-examine himself or that he lackscredibility unless speaking under oath. [57] In contrast, the principled exception to hearsay relies on independent circumstantial guarantees of trustworthiness: R v B(KG), (SCC), [1993] 1 SCR 740.

The onus is on the person who seeks to adduce the statement to establish thesecriteria on a balance of probabilities: R v Khelawon, 2006 SCC 57, [2006] 2 SCR 787. [58] Some posit that the declaration against penal interest exception may have been overtaken by the principled approach tohearsay, in light of R v Starr, 2000 SCC 40 , [2000] 2 SCR 144: McWilliams' Canadian Criminal Evidence, 5th ed (Toronto:Canada Law Book, 2013-) at 7-168. [59] In any event, where the application for admission of a statement under the traditional exception fails, it may be possible toadmit it under the principled exception to hearsay. [60] The criminal cases cited in Baksh are clear to the effect that a formal agreed statement of facts obtained in the criminalcontext is inadmissible unless it amounts to an admission accepted by counsel for the accused as applicable to the subsequent trial.

Forexample, without the consent of the accused, admitted facts on a guilty plea on one count are subject to an implied limitation and cannotbe used to determine that the accused was a party to a related offence on another count, unless accepted by counsel for the accused asapplicable: R v McGuigan, (SCC), [1982] 1 SCR 284. Similarly, a withdrawn guilty plea cannot be used in evidence ina subsequent trial.

The evidence that an accused had previously pleaded guilty to the charge but had been allowed to withdraw such pleais legally inadmissible: R v Thibodeau, (SCC), [1955] SCR 646, R v DMB (2005), (ON CA), 74 OR(3d) 603, 194 OAC 51. [61] The authors of The Law of Evidence in Canada, 4th ed (Markham, Ontario: LexisNexis, 2014) explain: §19.1 A formal admission in civil proceedings is a concession made by a party to the proceedings that a certain fact or issue is not indispute. Formal admissions made for the purpose of dispensing with proof at trial are conclusive as to the matters admitted.

As to thesematters, other evidence is precluded as being irrelevant but, if such evidence is adduced, the court is bound to act on the admission evenif the evidence contradicts it. A formal admission should be distinguished from an informal admission. The latter is admitted intoevidence as an exception to the hearsay rule and does not bind the party making it, if it is overcome by other evidence. … §19.5 Formal admissions are only binding for the purposes of the particular case in which they are made.

However, there is a conflictof authority as to whether an admission made at the first trial continues to bind when a new trial is ordered. We think that an admissionfor the purpose of dispensing with evidence is generally intended to apply only to the trial which is in progress or imminent and not in thediffering circumstances that may prevail at a new trial. Accordingly, the admission is no longer binding at the new trial in the formalsense, but may be introduced as an informal admission. The party who made the admission may, therefore, lead evidence to explain orcontradict the previous statement. [62] David M.

Paciocco and Lee Stuesser, in The Law of Evidence, 4th ed (Toronto, Canada: Irwin Law Inc, 2005) at 139 state: In civil cases, formal admissions may be made by way of the pleadings, in agreed statement of facts, or by submissions of counsel. Incriminal cases the most common "formal" admission is that of the guilty plea.

Section 655 of the Criminal Code also allows an accusedto admit any fact alleged by the Crown against him. We will primarily be concerned with "informal" admissions. An "informal"admission is not conclusive proof of an issue, nor does it in any way bind the parties; it is always open to be contradicted or explained. [63] The Court in Baksh discussed admissibility of “judicial admissions” from earlier civil proceedings in subsequent civilproceedings: 95 Where a judicial admission is withdrawn or otherwise exists from an earlier civil proceeding, it is nevertheless admissible inevidence as an evidentiary admission at the instance of the adversary opposed in interest:

Where an admission in a pleading has been withdrawn it can no longer be used as a conclusive judicial admission, but it is admissible inevidence at the instance of the adversary as an evidentiary admission, with the party who made the admission free to explain why it wasmade and withdrawn: McCormick, Evidence s. 242 (1954). In Donnison v. Donnison (1984), (SK CA), 35 Sask.

R.183 (C.A.), the court held that generally admissions contained in a pleading may be read as evidence against a party at trial, but where anorder has permitted the withdrawal of an admission because of error or inadvertence, the withdrawn admission may not be read inevidence against that party; the party may be cross-examined on the pleading and such evidence will form part of the total evidencewhich the trial judge must consider. (Holmested and Watson, Ontario Civil Procedure, at pp. 51-26, 27). 96 In civil cases, where an order has permitted the withdrawal of a formal admission because of error or inadvertence, the admission isnot directly admissible against the party who made it (Holmested and Watson, Ontario Civil Procedure, at pp. 51-26-7) but mayconstitute evidence upon which that party may be cross-examined: Holmested, at pp. 51-26-7; Donison v.

Donison, [1984] S.J. No. 686(QL) (C.A.), at para. 7; Capital Distributing Co. v. Blakey et al. (1997), (ON SC), 33 O.R. (3d) 58 (Gen. Div.), atpp. 61-2. An admission in the superseded or amended pleading continues to exist "as an utterance once deliberately made by the party":Wigmore, at s. 1067. An admission in a pleading which is struck out, while it can no longer be relied upon as a formal admission, mightstill be adduced as an informal admission: The Law of Evidence (2nd), Sopinka et al., at s. 19.4 citing O'Kelly v. Downie (1924), (MB CA), 17 D.L.R. 395 (Man.

C.A.), at p. 396. [64] This discussion in Baksh relates to statements in civil proceedings which are sought to be admitted in subsequent civilproceedings. [65] Assuming, for the purposes of the analysis, that the allegations in the Statement of Claim could be considered an informal“admission” or an “utterance once deliberately made by” Mr.

Soni, susceptible to admission in his criminal trial, I would still be requiredto assess necessity and reliability. [66] The necessity requirement would be met in the sense that an accused cannot be compelled to testify in his criminal trial: see,for example R v Bridges, 2005 MBQB 142. [67] Regarding reliability, the Supreme Court explained in Khelawon that hearsay evidence is presumptively inadmissible unlessan exception to the hearsay rule applies, primarily because of a general inability to test its reliability.

The reliability requirementidentifies those cases where the concerns arising from the inability to test the evidence are sufficiently overcome to justify admitting theevidence as an exception to the general exclusionary rule.

The reliability requirement will generally be met by showing that: (1) there isno real concern about whether the statement is true or not because of the circumstances in which it came about; or (2) no real concernarises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonethelessbe sufficiently tested by means other than contemporaneous cross-examination.

In all cases, the trial judge has a residual discretion toexclude admissible hearsay evidence where its prejudicial effect outweighs its probative value. [68] Here, the allegations in the Statement of Claim are not statements taken under oath. Nothing is known about thecircumstances of the inclusion of the allegations in the Statement of Claim. I have nothing upon which to base a finding that they werestatements made by Mr. Soni and recorded by his counsel. Counsel in a civil suit generally has implied authority to make an admissionon behalf of a client.

That does not necessarily provide a basis upon which a Court can infer that the plaintiff actually made the statementto his lawyer or the information was obtained directly from the plaintiff. Nor does the implied authority of counsel enlighten the Court asto the circumstances surrounding the statement. I do not, in this case, have any evidence that Mr. Soni expressly authorized the inclusionof the allegations in the Statement of Claim. [69] Further, assuming that Mr.

Soni did provide these statements to his lawyer and authorized their inclusion, there is no evidenceas to what he was told regarding the statement or the importance of telling the truth. The motivation of Mr. Soni in making the statementin the civil context is clear: pecuniary gain. There is nothing to suggest he was specifically told of any penal consequences in the eventof a false or inaccurate statement.

I also do not know if he was told that such an allegation could or could not be used for any otherpurpose, including in criminal proceedings against him, without his consent. [70] There are no notes or other evidence before me of any discussions surrounding the inclusion of the allegations in theStatement of Claim. There is no evidence of any questioning of Mr. Soni before the preparation of the Statement of Claim, as therewould be in the case of a KGB statement, for example. There is no videotape or other recording of Mr.

Soni supplying the information. [71] In sum, there is no information before the Court that would enable it to assess reliability. Therefore, I find that the allegationsin the Statement of Claim do not meet the reliability threshold for admission into evidence. [72] The Crown submits that in this judge alone trial, I am in a good position to assess the weight that should be placed on theStatement of Claim, and therefore the threshold reliability should not necessarily be a bar to its admission, as it might be in a jury trial.

Inmy view, the early determination of threshold reliability promotes judicial economy in any trial, and properly informs the parties as tothe evidence which will ultimately be before the Court. [73] Even if both necessity and reliability were established, I would find that the prejudicial effect outweighs the probative value.For the reasons outlined above, the probative value of the allegations in the Statement of Claim is weak. The prejudicial effect, however,is potentially significant. The explanation could be offered only through Mr. Soni as a witness.

Therefore, he would have to choosebetween declining to provide an explanation and exposing himself to cross-examination, potentially facing the introduction of a priorcriminal record and waiving solicitor-client privilege. Conclusion

[ 74 ] For the above reasons I decline to admit the Statement of Claim in evidence in this trial. Heard on the 15 th day of October 2014. Dated at the City of Edmonton, Alberta this 23 rd day of October, 2014. D.L. Shelley J.C.Q.B.A. Appearances: J.P. Quenneville for the Crown B. Beresh S. Straub (Student-at-Law) for the Accused