EVIDENCE |
Hibbert v. Canada
T-1317-96
Joyal D.J.
27/6/00
10 pp.
Hearsay--Action for damages suffered by plaintiff while inmate at Warkworth Institution--Plaintiff claiming defendant's servants (correctional officers) negligent or in breach of statutory duties by failing to protect plaintiff from violent assault--Incident took place in Institution music room when other inmate, after initial scuffle there, allegedly walked to weight room, through area supervised by officers got iron bar, came back and hit plaintiff on head, resulting in seriously impaired vision in right eye--Plaintiff alleging correctional officers on duty should have known what other inmate about to do--Action dismissed--Witness to incident signed contemporaneous statement before correctional officer, stating after plaintiff had punched other inmate in face few times, other inmate grabbed iron bar and struck plaintiff with it--No question of leaving music room--Although statement hearsay evidence, allowable as meeting twofold test for coming within exception to hearsay rule, i.e. circumstantial guarantee of trustworthiness and necessity (unavailability of witness for cross-examination): R v. Khan, [1990] 2 S.C.R. 531; R. v. Smith, [1992] 2 S.C.R. 915; R. v. B (K.G.), [1993] 1 S.C.R. 740--Witness now missing--Statement reliable as made right after events to officer in charge of investigation who did not have any personal interest and was following internal procedure, and signed by witness--In absence of any favourable evidence, plaintiff has failed to discharge requisite burden of proof to succeed--No evidence correctional officers negligent or in breach of duties with respect to care and protection of inmates.