



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Johnny 
          v. I.C.B.C.,







2007 
          BCCA 43



Date: 20070125





Docket: CA33074

Between:

Troy 
    Jonathon Johnny

Respondent

(
Plaintiff
)

And:

Leonard John Palmantier and Jason Darrin Houde

(Defendants)

And:

Insurance 
    Corporation of British Columbia

Appellant

(
Third Party
)










Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Mr. Justice Donald




The 
          Honourable Mr. Justice Chiasson








A.M. 
          Mersey


Counsel for the Appellant




G. 
          Hilliker, Q.C. and J.U. Buckley


Counsel for the Respondent




Place 
          and Date of Hearing:


Vancouver
,
British Columbia




12 January 2007




Place 
          and Date of Judgment:


Vancouver
,
British Columbia




25 January 2007








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Chiasson




Concurred 
          in by:




The 
          Honourable Chief Justice Finch
The Honourable Mr. Justice Donald



Reasons 
    for Judgment of the Honourable Mr. Justice Chiasson:

[1]

This is an appeal from a judgment determining that Mr. Palmantier was 
    the driver of an automobile involved in a single vehicle accident in which 
    the respondent was an occupant.

[2]

For the reasons that follow, I would dismiss the appeal.

Background

[3]

The plaintiff and Mr. Palmantier had been drinking heavily overnight 
    and into the day of June 9, 2001.  They left the Toosey Indian Reserve to 
    drive 45 km to Williams Lake, British Columbia in Mr. Palmantiers truck (which 
    was registered in the name of Jason Houde).  Soon thereafter the vehicle left 
    the road and went off a steep slope into a ravine.

[4]

Both the respondent and Mr. Palmantier were thrown out of the vehicle 
    and injured.

[5]

The respondent sued Mr. Palmantier and Mr. Houde for damages arising 
    out of the accident.  The defendants did not respond to the litigation.  The 
    appellant insurer was joined to the litigation as a third party pursuant to 
    s. 21 of the
Insurance (Motor Vehicle) Act
, R.S.B.C. 1996, c. 
    231.

[6]

After a four-day hearing, the trial judge determined that Mr. Palmantier 
    was the driver and adjourned consideration of his negligence, any contributory 
    negligence by the respondent, damages and costs.

The trial

[7]

During the course of the trial, evidence was adduced that the respondent 
    denied being the driver to a police officer at the scene of the accident and 
    that approximately one hour later he admitted being the driver to a nurse 
    at a hospital.

[8]

The trial judge held that the statement to the police officer was inadmissible 
    hearsay evidence and admitted the statement to the nurse as being a statement 
    against interest.

[9]

As to the statement to the police, he said in paras. 31 and 32 of his 
    reasons for judgment:

. 
    . . there are insufficient circumstantial guarantees of trustworthiness 
    to meet the threshold requirement of reliability.

. . .

. . . counsel for the plaintiff argues that the plaintiffs exculpatory 
    statement to Cst. Meaver should be admitted as a relevant circumstance to 
    be considered in deciding what weight, if any, should be attached to the plaintiffs 
    inculpatory statement to nurse Harrison about an hour later . . . I think 
    this point is well taken, and I will return to it later in these reasons.

[10]

After accepting the respondents evidence that he did not know who 
    was driving, in para. 109 of his reasons for judgment the trial judge stated, 
    . . . it would be unfair to ignore the plaintiffs denial of driving to Cst. 
    Meaver, when deciding what weight should be given to his admission of driving 
    to nurse Harrison.

[11]

In para. 111, the trial judge concluded:  . . . having regard to all 
    of the circumstances, little weight should be attributed to the plaintiffs 
    admission of driving to nurse Harrison.

[12]

The significance of the admission to nurse Harrison was apparent from 
    the trial judges comments in para. 115:

If any appreciable weight could be assigned to the plaintiff's 
    admission to nurse Harrison, I have no doubt that the admission would rebut 
    the inference that Mr. Palmantier was driving.  That is, it would raise at 
    least an equal probability that the plaintiff was driving, with the result 
    that the plaintiff would not have met his burden of proof.  However, I have 
    decided that almost no weight should be given to the plaintiff's admission 
    to nurse Harrison. . . .

Positions 
    of the parties

[13]

The appellant asserts that the trial judge erred by using the contents 
    of inadmissible hearsay evidence in weighing the contents of admissible evidence.  
    It contends that once the statement to the police officer was excluded as 
    evidence, it could play no further part in the trial.

[14]

The respondent says that the trial judge was entitled to use the evidence 
    as he did because it was not being used for the truth of its contents.  Counsel 
    noted that evidence that otherwise is hearsay often is used for purposes other 
    than the truth of its contents and referred to the rule concerning prior consistent 
    statements.

Discussion

[15]

In my opinion, the trial judge was entitled to use the statement to 
    the police officer as part of the narrative or context of the case.

[16]

My view is that the statement was merely one of the factors he took 
    into account in assessing the weight to be given to the admission to the nurse.

[17]

At the time of both statements, the respondent was seriously injured, 
    in pain and intoxicated.  At trial he did not remember who was driving.  It 
    would have been inappropriate for counsel to argue that the respondent was 
    the driver because he said so to the nurse and there was no evidence that 
    he denied being the driver.  Such evidence did exist.  In my view, it was 
    relevant to the weight to be given to the statement to the nurse.

[18]

Although counsel for the appellant contends that the statement to the 
    police officer could not have been given to a jury, I see no reason why this 
    would have to be the case.  A jury could be instructed that it must not consider 
    the statement as true, but that it could take into account the fact that the 
    statement was made.  That is, at a minimum it would be relevant to the state 
    of mind of the respondent within an hour of giving the statement to the nurse.

[19]

An analogous example of the use of evidence which is inadmissible for 
    the truth of its contents is the rule concerning prior consistent statements.  
    Such statements are not admissible for the truth of their contents, but can 
    be used to rebut an implication of recent fabrication.  (see:
R. v. 
    Evans
, [1993] 2 S.C.R. 629 at 643;
R. v. Stirling
, 2007 
    BCCA 4.)

[20]

I do not say that the statement to the police officer could rebut or 
    supplant the statement given to the nurse and, in my view, that is not the 
    use that was made of it by the trial judge.  He was careful to stress that 
    the statement given to the police officer was not being used for the truth 
    of its contents.  To use the fact that the statement had been made in the 
    overall context of considering the weight to be given to the statement made 
    to the nurse was proper.  In my view, it would have been an error not to do 
    so.

Conclusion

[21]

I would dismiss this 
    appeal.

The Honourable 
    Mr. Justice Chiasson

I agree:

The Honourable Chief Justice Finch

I agree:

The Honourable 
    Mr. Justice Donald


