IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20100531

Docket: M090334

Registry:
Vancouver

Between:

Jodi Evelyn Jones

Plaintiff

And

Chun Wah Ma and
Kin Shu Chau

Defendants

Before:
The Honourable Mr. Justice Ehrcke

Oral Ruling on Voir Dire

[1]            
THE COURT: In this personal injury trial, the plaintiff seeks to
introduce into evidence a conversation she had with the defendant, Chun Wah Ma,
at the scene of the motor vehicle accident. Immediately after the accident
occurred, the plaintiff got out of her vehicle, approached the defendant driver
of the other vehicle, and asked her if she was okay. She nodded yes. The
defendant Ma said she was sorry, that she was lost, that she had wanted to make
a U-turn, that she had caused the accident, and that it was her fault.

[2]            
The plaintiff had a cell phone with her, and rather than write the
statement down, she asked the defendant if it was okay if she recorded their
conversation on the cell phone. The defendant said yes. The plaintiff then
pressed the record button and had a short conversation, the recording of which
is now tendered in evidence. In that conversation the defendant Ma repeated
what she had earlier said, namely, that she was lost, that she had wanted to
make a U-turn, that she caused the accident, and that it was her fault.

[3]            
A voir dire was held to determine the admissibility of this
evidence, as the defendant objects that it is inadmissible hearsay. On the voir
dire, the plaintiff agreed in cross-examination that she did not tell Ms. Ma
that their conversation would be used in a lawsuit. She also agreed that Ms. Ma
had a red spot on her forehead, which looked like a place where she hit her
head in the accident.

[4]            
Ms. Ma testified on the voir dire and said that she
generally understands English, but sometimes has difficulty when people speak
quickly. She said she hit her head on the windshield when the accident occurred.
She said she remembered the conversation and that she understood the plaintiff
wanted to make an audio recording. She said she did not understand the
recording would be used in a lawsuit and that it would be different if she had
known. She did not know why she said she was lost, because in fact she was not
lost, but was looking for a place to park.

[5]            
Counsel for the defendant submits that the conversation is hearsay and
should not be admitted in evidence.

[6]            
Counsel for the plaintiff submits that the statements of the defendant
Ma are admissions by a party, and are therefore either not hearsay or are
admissible as a traditional common law exception to the hearsay rule.

[7]            
In response, counsel for the defendant submits that all the traditional
exceptions to the hearsay rule are now subject to a reliability/necessity
analysis under the principled approach to hearsay set out by the Supreme Court
of Canada in R. v. Starr, [2000] 2 S.C.R. 144. Counsel for the defendant
relies on the decision of this court in Pasko v. Pasko, 2002 BCSC 435.

[8]            
With respect, I do not find the Pasko decision helpful on this
point, as it dealt with a very different question of the admissibility of a
statement made by a person who was deceased at the time of trial. It did not
deal with the issue before me, namely the admissibility of an out-of-court admission
by a party to a lawsuit.

[9]            
That issue was specifically addressed by the Ontario Court of Appeal in R.
v. Foreman (2002), 62 O.R. (3d) 204 (C.A.). In that case Doherty J.A.,
delivering the judgment of the Court, said at pages 215 to 216:

Admissions, which in the broad sense refer to any statement
made by a litigant and tendered as evidence at trial by the opposing party, are
admitted without any necessity/reliability analysis. As Sopinka J. explained in
R. v. Evans [1993] 3 S.C.R. 653, at page 664:

The rationale for admitting admissions has a different basis
than other exceptions to the hearsay rule. Indeed, it is open to dispute
whether the evidence is hearsay at all. The practical effect of this
doctrinal distinction is that in lieu of seeking independent circumstantial
guarantees of trustworthiness, it is sufficient that the evidence is tendered
against a party. Its admissibility rests on the theory of the adversary system
that what a party has previously stated can be admitted against the party in whose
mouth it does not lie to complain of the unreliability of his or her own
statements. As stated by Morgan, “[a] party can hardly object that he had
no opportunity to cross-examine himself or that he is unworthy of credence save
when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence”
(1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140).
The rule is the same for both criminal and civil cases subject to the special
rules governing confessions which apply in criminal cases.  [Emphasis in
original].

[10]        
I agree with that statement of the law. It was adopted by our Court of
Appeal in R. v. Terrico, 2005 BCCA 361. Admissions made by one party to
litigation are generally admissible if tendered by the opposing party, without
resort to any necessity/reliability analysis.

[11]        
The evidence tendered by the plaintiff in this case of her conversation
with the defendant Ma at the scene of the accident is admissible in evidence.

[12]        
The cell phone recording which was marked as Exhibit A on the voir dire
and the transcript of the recording which was marked as Exhibit B may now both
be marked as exhibits on the trial proper.

[13]        
The fact that the defendant did not understand at the time of the
conversation that what she said might be used in litigation is not a basis for
excluding the evidence. This is a civil case. Unlike a criminal case, there is
no issue here about voluntariness of a statement to a person in authority and
no issue about compliance with the requirements of the Canadian Charter
of Rights and Freedoms. Counsel for the defendant agrees that the plaintiff
was not a person in authority and that she was not a state agent, as those
terms are used in the context of confessions in criminal cases.

[14]        
The defendant’s concern that only part of the conversation was recorded,
that the defendant had hurt her head, that the defendant did not know the use
to which the recording would be put, and that the statement might therefore not
be reliable, are matters that can be explored in cross-examination and may go
to the weight to be attached to this evidence. They do not form a basis for the
exclusion of the evidence.

The
Honourable Mr. Justice W. F. Ehrcke