R. v. O'Brien, (1977) 16 N.R. 271 (SCC)

• Judge: Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.
• Court: Supreme Court (Canada)
• Case Date: June 24, 1977
• Jurisdiction: Canada (Federal)
• Citations: (1977), 16 N.R. 271 (SCC);76 DLR (3d) 513;[1978] 1 SCR 591;[1977] 5 WWR 400;[1977] SCJ No 65 (QL);35 CCC (2d) 209;16 NR 271;1977 CanLII 168 (SCC)

R. v. O'Brien (1977), 16 N.R. 271 (SCC)

MLB headnote and full text

R. v. O'Brien

Indexed As: R. v. O'Brien

Supreme Court of Canada

Laskin, C.J.C., Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré, JJ.

June 24, 1977.

Summary:

This case arose out of a charge against the accused of possession of a narcotic for the purpose of trafficking. The accused was tried and convicted. After his conviction another man told the accused's lawyer that he, not the accused, had committed the offence. The man refused to make the statement in circumstances where it might be used against him in a criminal proceeding. Soon afterward the man died of a drug overdose. The accused sought and obtained leave to adduce fresh evidence from the British Columbia Court of Appeal. The Court of Appeal held that the statement of the dead man as related by the accused's lawyer as a witness was admissible. The Court of Appeal directed the acquittal of the accused. The Crown appealed.

The Supreme Court of Canada allowed the appeal, set aside the acquittal and held that the statement was inadmissible. The Supreme Court of Canada held that a statement against penal interest could be admitted as an exception to the hearsay rule, broadening the old rule which limited admissibility to declarations against pecuniary interest. See paragraphs 1 to 16. The Supreme Court of Canada held, however, that the statement in issue was inadmissible, because it was made in circumstances in which no penal consequences could flow from it. See paragraphs 17 to 22.

Evidence - Topic 1552

Hearsay rule exceptions - Statements against interest - Interest defined - After the accused was convicted another man told the accused's lawyer that he, not the accused, had committed the offence - The Supreme Court of Canada stated that a statement against penal interest could be admitted as an exception to the hearsay rule, broadening the old rule which limited admissibility to declarations against pecuniary interest - See paragraphs 1 to 16 - The Supreme Court of Canada held that the statement in issue was inadmissible, because it was made in circumstances in which no penal consequences would flow from it - See paragraphs 17 to 22.

Evidence - Topic 1553

Hearsay rule exceptions - Statements against interest - What constitutes a statement against interest - After the accused was convicted another man told the accused's lawyer that he, not the accused, had committed the offence - He refused to make the statement in circumstances where it might be used against him in a criminal proceeding - The Supreme Court of Canada held that a statement against penal interest could be admitted as an exception to the hearsay rule, broadening the old rule which limited admissibility to declarations against pecuniary interest - See paragraphs 1 to 16 - The Supreme Court of Canada held that the statement in issue was inadmissible, because it was made in circumstances in which no penal consequences would flow from it - See paragraphs 17 to 22.

Cases Noticed:

Subraniam v. Public Prosecutor, [1956] 1 W.L.R. 956(P.C.), appld. [para. 4].

Ratten v. Reginam, [1971] 3 All E.R. 801 (A.C.), appld. [para. 4].

Teper v. The Queen, [1952] A.C. 480(A.C.), appld. [para. 4].

Tucker v. Oldbury D.C., [1912] 2 K.B. 317, refd to. [para. 6].

Standen v. Standen (1790), 1 Peake's N.P. 45, consd. [para. 7].

Middleton v. Malton (1829), 10 B. & C. 317, consd. [para. 7].

Powell v. Harper (1833), 172 E.R. 1112, consd. [para. 7].

The Sussex Peerage (1844), 8 E.R. 1034, not folld. [para. 8].

Ward v. H.S. Pitt & Co.; Lloyd v. Powell Duffryn Steam Coal Company, [1913] 2 K.B. 130, appld. [para. 9].

Donnelly v. United States (1913), 228 U.S. 243, not folld. [para. 10].

United States v. Harris (1971), 403 U.S. 573, refd to. [para. 12].

Hines v. Commonwealth (1923), 117 S.E. 843, refd to. [para. 13].

Sutter v. Easterly (1945), 189 S.W.(2d) 284, refd to. [para. 13].

People v. Lettrich (1952), 108 N.E.(2d) 488, refd to. [para. 13].

People v. Spriggs (1946), 60 C.(2d) 868, refd to. [para. 13].

New York v. Brown (1969), 26 N.Y.R.(2d) 88, refd to. [para. 13].

Blocker v. State, 114 S.W. 814, refd to. [para. 13].

McClain v. Anderson Free Press, 102 S.E.(2d) 750, refd to. [para. 13].

Scolari v. United States (1969), 406 F.(2d) 563, consd. [para. 14].

Statutes Noticed:

Criminal Code of Canada, R.S.C. 1970, c. C-34, sect. 610 [para. 23].

Authors and Works Noticed:

Baker, The Hearsay Rule, p. 564 [para. 15].

Jefferson, Declarations Against Interest; an Exception to the Hearsay Rule, 58 Harv. L. Rev. 1 [para. 15].

Morgan, Declarations Against Interest, 5 Vand. L. Rev. 451 [para. 15].

Wigmore on Evidence (3rd Ed.), vol. 5, paras. 1476, 1477 [para. 15].

Counsel:

M.M. de Weerdt, Q.C. and H.J. Wruck, for the Crown;

John D. McAlpine, Q.C. and Keith R. Hamilton, for the accused.

This case was heard on December 13, 1976, at Ottawa, Ontario, before LASKIN, C.J.C., MARTLAND, JUDSON, RITCHIE, SPENCE, PIGEON, DICKSON, BEETZ and de GRANDPRE, JJ., of the Supreme Court of Canada.

On June 24, 1977, DICKSON, J., delivered the following judgment for the Supreme Court of Canada: