IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Mr. Dougan brings an application for a stay of proceedings on the basis of delay. Pursuant to that application, Mr. Dougan is adducing affidavit evidence with respect to the prejudice caused to him by reason of the delay.  Crown objects to three areas in the affidavits on the basis of admissibility.  Those three areas relate to (1) Mr. Dougan being refused an assistant guide licence; (2) a cougar hunt investigation; and (3) hearsay evidence regarding damage to Mr. Dougan’s reputation and business.

[2]           With respect to the cougar hunt, Crown objects on the basis of relevance.  The cougar hunt transpired in December, 2013 as a result of which charges flowed.  Ms. Kilgore argued that the evidence, if believed, would tend toward an abuse of process argument and not a delay one.  No abuse of process application is before the court.  Ms. Kilgore argued that the evidence, being irrelevant to the question before me, is a red herring designed to taint the conservation officers with malafides.

[3]           Mr. Church, on the other hand, argued that what happened in December, 2013 is “an example writ large of what [Dougan] says has been happening” since this matter began.  It indicates the lengths the conservation officers have gone to drive Mr. Dougan out of business.  The hunt is relevant because it relates to the conduct of the conservation officers, the economic effect it has had on Mr. Dougan, and the consequences to his reputation.

[4]           Certainly there are strong elements in the allegations and the purported evidence that tend significantly more toward abuse of process than to delay - if true and without justification. However, one of the alleged prejudices to Mr. Dougan in these proceedings has been the harm to his reputation while he waited for this matter to be tried.  If the delay does lie at the feet of the Crown, then these would be appropriate factors for me to take into consideration.  I am admitting the evidence with respect to the cougar hunt. The parties will have to ensure that their affiants are available for cross-examination at the continuation if required by counsel.

[5]           With respect to the issuance of the assistant guide licence, this is a more troubling aspect.  Ms. Kilgore objected to the admissibility of this evidence on the basis that it was completely speculative and irrelevant to the issue of delay.  Ms. Kilgore then speculated how the letter was issued with the false information it contained.  There is no other known way that the information the BC Recreational Fisheries and Wildlife Program Manager purported to rely upon could have come to his attention other than by word of mouth from other conservation officers in other jurisdictions.  The fact that the licence was denied on false premises is not only related to the harm to Mr. Dougan’s reputation, but to the prejudice he suffered in the interim, if indeed the delay lies at the feet of the Crown.  This evidence is admissible.

[6]           The hearsay evidence is significantly more troubling.  The rules against hearsay have been much relaxed over the years but have not been eradicated entirely.  Necessity and reliability typically remains the test for its admissibility.  Typically, the challenge to hearsay is its inherent frailty with respect to perception, memory, narration and sincerity.  There is no opportunity to cross examine for inaccuracies or falsehoods. There is no way to test how informed the speakers are when making their statements.

[7]           That is no more obvious than in a case such as this where it is hard to determine – short of cross examination - whether hunters are refusing Mr. Dougan’s services because of these outstanding charges or because of the conviction in Yukon.  Further, with other outstanding charges intervening in British Columbia, those too may have had impact on whether hunters are refusing to use Mr. Dougan’s services.

[8]           On the other hand, damage to reputation is a factor to be considered where there has been delay.  Reputation is about perceptions of a person in the community regardless of the veracity of the underlying assumptions.  This is even more the case when the press has been fully engaged in the trial coverage as it has been with this trial. How then is the evidence on reputation to be received?

[9]           Mr. Church has conceded that some hearsay should not be admitted and so I will not address those concessions.  What remains is the evidence of the outfitters who have told Mr. Dougan that hunters seeking guide services are aware of the allegations and so they do not wish to use Mr. Dougan’s services.  There are also passages in Mr. Dougan’s affidavit where he has declined to name people who have spoken to him for fear that they will be harassed in the same manner he believes he has been harassed and his clients have been harassed.  Mr. Church argued that this may well be hearsay but it is admissible because it goes to show the damage that has been done to Mr. Dougan’s reputation.

[10]        Mr. Church provided an excerpt from Pacificador v. Canada (Minister of Justice), 1997 CarswellOnt 5613, which provides at paragraph 9:

[11]        In my view, reputation evidence falls very much in the same category. It is inconceivable, inconvenient and inexpedient to bring in every underlying witness on the issue of a person’s reputation.  While the best evidence may be the people whose own opinions have changed as a result of the passage of time and the allegations, that alone is not what makes up reputation.  It is the sum of the whole perception of the man in his community.

[12]        I had expressed to counsel my concern that reputation is, by its very nature, largely hearsay.  In order to prove reputation and damage to it, some degree of hearsay is going to be necessary.  I also expressed my concern that I did not want a parade of witnesses coming to corroborate what reputation witnesses have to say.  That is neither expedient or convenient.  The evidence is, however, relevant.

[13]        Ms. Kilgore argued that nowhere else in criminal matters is hearsay suspended except in the matter of sentencing.  While this application arises in the context of a quasi criminal proceeding, it is on an application where the burden lies on the Defendant to prove on the balance of probabilities that there has been delay, that it is not as a result of his actions, and that he has suffered prejudice as a result of that delay. She argued that the rule against hearsay is not suspended for such an application.

[14]        There is a dearth of case law considering section 11(b) of the Charter with respect to how damage to reputation is to be established.  Typically, reputation falls under character evidence which has its own set of rules in the context of proving or defending a criminal charge.  The same considerations do not apply to an application under s. 11(b) of the Charter.

[15]        Reputation, of course, is different from character.  Character is reality; reputation is perception.  In a civil defamation lawsuit, the court looks to the impact of the damage to the reputation on a person’s employment or profession.  Typically in a defamation suit, reputation evidence is led by witnesses who have had dealings or are acquainted with the defamed person.  In this case fellow guides, conservation officers and other hunters would have that most direct information.

[16]        There is some direct evidence from outfitters that they cannot deal with Mr. Dougan so long as these charges are outstanding.  It is not their evidence in that respect that is the concern.  The actions taken by the outfitters as a consequence of what they have heard from their clients, the hunters, is directly admissible and inoffensive.

[17]        What the hunters have said to those outfitters is hearsay.  That hearsay goes directly to the issue of reputation.  It is unnecessary when addressing harm to reputation to bring in each and every hunter those outfitters have spoken to.  The Crown cannot, however, test or assail the premise upon which the hunters made those comments.  That directly impacts the weight of the hunter’s comments, but not the admissibility.

[18]        Ms. Kilgore relied upon R. v. Owens, [2008] O.J. No. 4815.  That case insofar as it relates to hearsay evidence, dealt with an unsworn handwritten statement to show that crucial evidence had been denied due to the passage of time.  This ties in with her objection to a letter written by a hunter and appended to Mr. Dougan’s affidavit.

[19]        Paragraph 18 refers to and Exhibit “D” is the letter from Eric Schlukebir, who was present on the cougar hunt.  His letter is unsigned and addressed to “whom it may concern”.  I have ruled that the issue of the cougar hunt is relevant but what remains is the issue of whether this letter is classic hearsay that ought to be excluded.  It is problematic because it very much reflects what is happening to Mr. Dougan, at least from his perspective and that of some of his clients.  However, it is unsworn, unsigned and untestable.  Its value would go no further than to show how Mr. Dougan’s reputation is unfolding but could not go to the truth of any of the statements made in that letter.  I admit the letter not for the truth of the contents with respect to the incidents surrounding the cougar hunt, but for the limited purpose of how it reflects on Mr. Dougan’s reputation.

[20]        The Crown objects to paragraph 19 because Ms. Kilgore cannot test the veracity of the statement made by the representative of Cabela’s.  Again, this evidence goes to the reputation of Mr. Dougan.  The source is identifiable.  It is a matter of expediency and convenience that I receive reputation evidence in this manner.  This evidence is admissible. 

[21]        However much hearsay may be permissible on such an application, one such form that must not be admitted is hearsay from unidentified people.  It is not sufficient to say that the substance, veracity or timing of that hearsay can be explored through cross-examination of Mr. Dougan.  The reliability components of such evidence cannot be tested in any useful manner.  I appreciate Mr. Dougan’s concerns that he fears these people will be harassed in the similar fashion that he believes other supporters have been harassed.  However, this is not evidence whose reliability the court can take any comfort from.

[22]        I am allowing the hearsay evidence contained in Mr. Dougan’s affidavit except: