State v. OttonState v. Otton
YU, J.— While ostensibly concerning the interpretation of an evidentiary rule, this is actually a case about stare decisis. Petitioner Nakia Lee Otton seeks reversal of his convictions for second degree assault and felony harassment. The victim testified at Otton‘s trial, and because her testimony was inconsistent with her prior sworn statement to police about the incident, the trial court admitted the victim‘s prior statement as substantive evidence. Otton acknowledges that the trial court‘s decision and the Court of Appeals opinion affirming that decision were proper in accordance with this court‘s long-standing
FACTUAL AND PROCEDURAL HISTORY
Otton and the victim had a romantic relationship and lived in the same household. The victim was disabled due to a history of multiple brain surgeries and sometimes had difficulties with memory and speaking. Late one night in December 2012, Otton and the victim had a confrontation. After Otton left the house, the victim called 911. When the police arrived, the victim gave a written statement, signed under penalty of perjury, alleging that Otton held her on the bed and against the wall by her neck so that she could not breathe and told her he was going to kill her. The State charged Otton with second degree assault and felony harassment.
At trial, the victim testified that while she would not have intentionally lied to police, her allegations against Otton were false, and that she had called 911 because she was “angry” and “had a couple of drinks.” 2A Verbatim Report of Proceedings (VRP) (Aug. 7, 2013) at 132. At the State‘s request and over Otton‘s objection, the trial court admitted the victim‘s written statement as substantive evidence pursuant to
ISSUE
Should this court reject Smith‘s interpretation of
ANALYSIS
A. Standard of review and principles of stare decisis
A decision to admit or exclude evidence is generally reviewed for abuse of discretion. State v. Griffin, 173 Wn.2d 467, 473, 268 P.3d 924 (2012). But in this case, Otton does not challenge the manner in which the trial court exercised its discretion; he challenges the way this court previously interpreted
“Stare decisis is a doctrine developed by courts to accomplish the requisite element of stability in court-made law, but is not an absolute impediment to change.” In re Rights to Waters of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970). In order to effectuate the purposes of stare decisis, this court will reject its prior holdings only upon “a clear showing that an established rule is incorrect and harmful.” Id. There are also “‘relatively rare’ occasions when a court should eschew prior precedent in deference to intervening authority” where “the legal underpinnings of our precedent have changed or disappeared altogether.” W.G. Clark Constr. Co. v. Pac. Nw. Reg‘l Council of Carpenters, 180 Wn.2d 54, 66, 322 P.3d 1207 (2014) (internal quotation marks omitted) (quoting Carpenters Local Union No. 26 v. U.S. Fid. & Guar. Co., 215 F.3d 136, 141 (1st Cir. 2000)).
When a party asks this court to reject its prior decision, it “is an invitation we do not take lightly.” State v. Barber, 170 Wn.2d 854, 863, 248 P.3d 494 (2011). The question is not whether we would make the same decision if the issue presented were a matter of first impression. Instead, the question is whether the prior decision is so problematic that it must be rejected, despite the many benefits of adhering to precedent—“‘promot[ing] the evenhanded, predictable, and consistent development of legal principles, foster[ing] reliance on judicial decisions, and contribut[ing] to the actual and perceived integrity of the judicial process.‘” Keene v. Edie, 131 Wn.2d 822, 831, 935 P.2d 588 (1997) (quoting Payne v. Tennessee, 501 U.S. 808, 827, 111 S. Ct. 2597, 115 L. Ed. 2d 720 (1991)). With these principles in mind, we turn to the precedent Otton asks us to reject—Smith, 97 Wn.2d 856.
B. The Smith decision and its application in this case
Smith was a case about the proper interpretation of
[t]he declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (i) inconsistent with the declarant‘s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition.
Because such a statement is not hearsay, it is admissible at trial as substantive evidence, that is, to prove the truth of matter asserted in the statement.1
As noted, it is undisputed on appeal that the victim in this case testified at Otton‘s trial, that she was subject to cross-examination about her prior written statement, that the prior written statement was inconsistent with the victim‘s trial testimony, and that the prior written statement was given under oath and subject to the penalty of perjury. The only question is whether her police interview was an “other proceeding” within the meaning of
When confronted with the same question in 1982, this court declined to issue a categorical ruling that a police interview is either always or never considered an “other proceeding.” Smith, 97 Wn.2d at 861. Rather, we held that “[t]he purposes of the rule and the facts of each case must be analyzed. In determining whether evidence should be admitted, reliability is the key.” Id. Applying this approach to the facts presented, Smith held that the police interview at issue in that case was an “other proceeding” because “the complaining witness-victim voluntarily wrote the statement herself, swore to it under oath with penalty of perjury before a notary, admitted at trial she had made the statement and gave an inconsistent statement at trial where she was subject to cross examination.” Id. at 863. The victim‘s sworn statement was therefore admissible as substantive evidence. Id. at 857.
We have not reexamined Smith since it was issued. However, based on Smith, the Court of Appeals has formulated a four-factor test for determining whether an out-of-court statement by a nonparty witness is admissible pursuant to
- whether the witness voluntarily made the statement,
- whether there were minimal guaranties of truthfulness,
- whether the statement was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause, and
- whether the witness was subject to cross examination when giving the subsequent inconsistent statement.
Thach, 126 Wn. App. at 308. Otton does not challenge the trial court‘s discretionary determinations that the police interview at issue here qualified as an “other proceeding” and that the victim‘s written statement was properly admitted in accordance with this four-factor test. He also does not contend that the four factor test is anything but a faithful application of Smith. Rather, he argues that we should reject Smith.
C. Otton has not shown that Smith is incorrect or harmful
Smith reasonably held that the phrase “other proceeding” must be interpreted in a
1. Otton has not shown that Smith is incorrect
Where a party asks this court to reject its previous decision, the party must show that the previous decision is “incorrect.” Stranger Creek, 77 Wn.2d at 653. Otton contends that Smith is incorrect because it conflicts with (1) the plain language of
a. Interpretation of evidentiary rules
“This court interprets court rules the same way it interprets statutes, using the tools of statutory construction.” State v. Hawkins, 181 Wn.2d 170, 183, 332 P.3d 408 (2014). We therefore begin with the plain language of the rule. Id.
Smith noted that the first proposed version of the federal rule would have allowed “all prior inconsistent statements to be used as substantive evidence,” but a requirement “that the statement be made under oath, subject to penalty for perjury” was later added “to assure reliability.” Smith, 97 Wn.2d at 859-60. However, further proposals to restrict the rule by requiring greater procedural formalities (that the statements be given during grand jury proceedings and subject to cross-examination at the time they were given) were rejected. Id. at 860. This history shows that statements admitted under the rule must meet a certain level of reliability and must have been given with some level of procedural formality, but that the phrase “other proceeding” was intentionally left “open-ended.” Id. at 861.
Smith also considered “the original purpose of the sworn statement,” and noted that the statement given in that case “was taken as standard procedure in one of the four legally permissible methods for determining the existence of probable cause.” Id. at 862 (citing State v. Jefferson, 79 Wn.2d 345, 347, 485 P.2d 77 (1971)). The court noted that “‘[o]ther proceeding’ under the rule would clearly cover” three of the four methods—grand jury proceedings, inquest proceedings, and filing a criminal complaint before a magistrate. Id. at 863. It would therefore be an anomaly to categorically exclude the fourth method—“police investigations into alleged criminal activity, and the taking of statements from witnesses and the presentment of them to the prosecuting attorney.” Id. at 862.
Otton, however, argues that based on applicable principles of statutory interpretation, this court must hold that an “other proceeding” “mean[s] something similar to the preceding specific terms ‘trial’ or ‘hearing.‘” Suppl. Br. of Pet‘r at 6. This, according to Otton, would include “judicial proceedings, often adversarial, where the declarant is officially placed under oath and subject to questioning” but not proceedings like those at issue here, where voluntary, sworn witness statements are given outside “a courtroom or
By focusing on the terms “trial” and “hearing,” Otton takes into account only some of the context in which the term “other proceeding” is used. However, we must “give[] effect to the plain language of a court rule, as discerned by reading the rule in its entirety and harmonizing all of its provisions.” State v. George, 160 Wn.2d 727, 735, 158 P.3d 1169 (2007) (emphasis added). This means we must consider the fact that the plain language of
Perhaps most problematically, even if we were to agree that the victim‘s statement here was not given at an “other proceeding,” Otton does not propose a workable analytical framework for future cases. See Key Design Inc. v. Moser, 138 Wn.2d 875, 883, 983 P.2d 653 (1999) (adhering to precedent in part because “Key Design proposes no alternative rule which would provide the clarity and certainty it says the [previous] rule lacks“). He certainly proposes a bright-line rule that witness statements given to investigating police officers are never admissible under
We thus conclude that Smith‘s interpretation of
b. Decisions from other jurisdictions
Where our prior interpretation is inconsistent with the decisions of “the vast majority of our sister states,” there may be good reason to reconsider our own approach. Davis v. Baugh Indus. Contractors, Inc., 159 Wn.2d 413, 417, 150 P.3d 545 (2007). However, a decision is not necessarily incorrect merely because it lacks universal acceptance. See Key Design, 138 Wn.2d at 883 (argument “about the rule being extreme, unusually strict, and not generally accepted or favored” held insufficient). In this case, the decisions of other jurisdictions do not show that Smith‘s interpretation of
We begin with the one jurisdiction that clearly and completely disagrees with Smith—Florida. Florida courts have specifically rejected Smith‘s case-by-case approach and instead use a “‘bright line’ test” to interpret Florida‘s version of
Notably, in the seminal case establishing Florida‘s bright-line test, the court was plainly troubled by the circumstances under which the statement at issue in that case was made: the witness who gave the statement was 16 years old at the time, he was accused of participating in the homicide then under investigation, and he did not give his statement until he had been in custody (“although supposedly not ‘under arrest‘“) for over six hours and subjected to “a long process
Nevertheless, the Florida court rejected a case-by-case approach, and it did so explicitly as a matter of legislative deference:
While the legislature and Congress may have been ultimately concerned with the “reliability” of a particular statement, they sought to vindicate that concern only by establishing given and objective criteria as to the circumstances, including the kind of forum, under which it was given. And it is for the legislature, not the courts, to determine not only the policy to be promoted, but the means by which that end is to be achieved.
Id. at 79. In Washington, however, evidentiary rules are adopted by this court pursuant to its inherent powers under the state constitution. State v. Gresham, 173 Wn.2d 405, 428, 269 P.3d 207 (2012). “[W]hen interpreting court rules we are not concerned about usurping the role of the legislature because we alone are uniquely positioned to declare the correct interpretation of any court-adopted rule.” Jafar v. Webb, 177 Wn.2d 520, 527, 303 P.3d 1042 (2013).
Moreover, ER 801 is subject to amendment according to prescribed procedures, and
Otton also suggests that federal courts interpreting the federal equivalent of
Moreover, like the Florida court in Delgado-Santos, the federal court in Dietrich was plainly concerned about the fact that the statements at issue were of questionable substantive reliability, in part because they were given by an individual who was under imminent threat of arrest for allegations related to the ultimate crime at issue. Dietrich, 854 F.2d at 1061-62; Delgado-Santos, 471 So. 2d at 75. That concern is fully addressed by Smith and the four-factor test developed by the Court of Appeals, without imposing the inflexibility created by a bright-line rule. See, e.g., State v. Nelson, 74 Wn. App. 380, 388, 874 P.2d 170 (1994) (“Any motive to lie is therefore much less compelling in this case than if [the witness] had been questioned as a suspect.“); see also Tisdale v. State, 498 So. 2d 1280, 1283 (Fla. Dist. Ct. App. 1986) (Glickstein, J., dissenting in part and concurring in part) (“In my view, the ‘bright line’ test effects a lockstep or mind-set that could produce the injustice the test seeks to prevent.“).
Other federal cases also do not advance Otton‘s argument. Some cases, though holding statements made to investigating police were not given at an “other proceeding,” explicitly acknowledge that the purpose of the rule is “to ensure the reliability and truthfulness of any prior inconsistent statement,” and therefore look to “the totality of the circumstances” under which the statement was given. United States v. Day, 789 F.2d 1217, 1223 (6th Cir. 1986); see also Livingston, 661 F.2d at 243. This clearly indicates an approval of a case-by-case approach turning on some indicia of reliability. And the Ninth Circuit has interpreted the federal rule in a manner entirely consistent with Smith, holding that an interrogation by immigration officials is an “other proceeding” under the rule and noting that “the choice of the open-ended term ‘other proceedings’ was intentional.” Castro-Ayon, 537 F.2d at 1058.
If Washington were an extreme outlier in its interpretation of
2. Otton has not shown that Smith is harmful
Even if Otton could show that Smith is clearly incorrect, we will not reject our precedent unless it is “both incorrect and harmful.”3 Barber, 170 Wn.2d at 864. However, the four-factor test formulated by the Court of Appeals creates a principled framework for determining whether a prior, inconsistent, out-of-court statement is sufficiently reliable, and
Relying primarily on Crawford, 541 U.S. 36, Otton contends that any substantive, case-by-case reliability determination is simply too subjective to be allowed. See Suppl. Br. of Pet‘r at 12-14. This argument confuses the requirements of the confrontation clause at issue in Crawford,
While it may readily be conceded that hearsay rules and the Confrontation Clause are generally designed to protect similar values, it is quite a different thing to suggest that the overlap is complete and that the Confrontation Clause is nothing more or less than a codification of the rules of hearsay and their exceptions as they existed historically at common law.
California v. Green, 399 U.S. 149, 155, 90 S. Ct. 1930, 26 L. Ed. 2d 489 (1970).
The confrontation clause is a procedural guarantee that statements will be tested in “the crucible of cross-examination.”4 Crawford, 541 U.S. at 61; see also Green, 399 U.S. at 158 (discussing the purposes of the confrontation clause). An alleged confrontation clause violation is therefore appropriately
Moreover, admissibility pursuant to
To the extent that Otton implies that it is inherently harmful to allow prior inconsistent statements to be admitted as substantive evidence without requiring specific procedural formalities beyond those found in the plain language of
Otton has not made a clear showing that Smith is incorrect or harmful. We thus adhere to the doctrine of stare decisis and reaffirm Smith‘s interpretation of an “other proceeding” for purposes of
CONCLUSION
A party asking this court to reject its precedent faces a challenging task. The party must show not merely that it would have been reasonable to reach a different conclusion in the first instance, but that the prior decision is so incorrect and harmful that it would be unreasonable to adhere to it. Otton has not made such a showing. We affirm the Court of Appeals.
GORDON McCLOUD, J. (concurring)—I agree with the majority that this is a case about stare decisis. The petitioner, Nakia Lee Otton, concedes that the Court of Appeals’ decision is correct under this court‘s holding in State v. Smith, 97 Wn.2d 856, 863, 651 P.2d 207 (1982), and he asks us to overrule that holding. Thus, this case requires us to decide whether Smith should be abandoned as incorrect and harmful. See In re Rights to Water of Stranger Creek, 77 Wn.2d 649, 653, 466 P.2d 508 (1970) (“The
I also agree with the majority that the phrase at issue in this case—“other proceeding” in
Indeed, among all the jurisdictions with identical rules whose courts have addressed the issue, Washington is the only one that interprets the phrase in this way. Other courts have consistently held that the “other proceeding[s]” covered by rules equivalent to
I. SMITH WAS INCORRECTLY DECIDED
As the majority correctly notes,
But the Smith court went on to address a more specific question: whether the open-ended phrase “other proceeding” in
To reach that conclusion, the Smith court relied on a single Ninth Circuit case, United States v. Castro-Ayon, 537 F.2d 1055 (9th Cir. 1976), interpreting the federal equivalent rule,
A. To conclude that a police interview can be an “other proceeding” within the meaning of ER 801(d)(1)(i), the Smith court relied on a misreading of Castro-Ayon and distinguished, without explanation, more apposite cases reaching the opposite conclusion
In Castro-Ayon, the Ninth Circuit held that a tape-recorded interrogation by border agents was admissible under
In this respect, Smith is actually inconsistent with Castro-Ayon. The Castro-Ayon court did not endorse the idea that certain statements might be reliable enough to fall within
[W]e note that the immigration proceeding before Agent Pearce bears many similarities to a grand-jury proceeding: both are investigatory, ex parte, inquisitive, sworn, basically prosecutorial, held before an officer other than the arresting officer, recorded, and held in circumstances of some legal formality. Indeed, this immigration proceeding provides more legal rights for the witnesses than does a grand jury: the right to remain totally silent, the right to counsel, and the right to have the interrogator inform the witness of these rights.
We do not hold, as the question is not before us, that every sworn statement given during a police-station interrogation would be admissible. While this immigration proceeding bears many similarities to the station-house interrogation, we believe that it qualifies as an “other proceeding” within the meaning of the statute.
537 F.2d at 1058 (footnote omitted). Thus, Castro-Ayon was a holding about a particular semiformal proceeding, not a particular statement. Id. It does not support Smith‘s holding that trial courts should determine “other proceeding” admissibility under
B. Contrary to the majority‘s assertion, Smith is an extreme outlier; in the 30 years since Smith was decided, every other court to address the question has held that the “other proceeding[s]” covered by rules equivalent to FRE 801(d)(1)(A) do not include interviews by investigating officers
As noted above, Smith adopted the minority position when it was decided 34 years ago. It held that witness statements taken during a police investigation could fall within ER/FRE 801‘s “other proceeding” exception,
That is no longer true today, when many more cases have addressed the question. With the exception of Castro-Ayon, federal cases all hold that the “other proceeding[s]” contemplated in
Indeed, outside of Washington, no case has relied on Castro-Ayon to admit, under
- State v. Collins, 186 W. Va. 1, 7-8 & n.8, 409 S.E.2d 181 (1990) (noting that Castro-Ayon is an outlier that has been criticized in scholarship on
FRE 801(d)(1)(A) ). - State v. Smith, 573 So. 2d 306, 314-16 (Fla. 1990) (distinguishing proceeding in Castro-Ayon (admissible as an “other proceeding” under
FRE 801(d)(1)(A) ) from prosecutor‘s transcribed investigative interrogation (inadmissible because it did not even remotely resemble a grand jury proceeding)). - State v. Johnson, 220 Neb. 392, 394, 398-99, 370 N.W.2d 136 (1985), (victim‘s statement during interview with attorney was not an “other proceeding” under state equivalent of
FRE 801(d)(1)(A) ; to the extent that Castro-Ayon supported that conclusion, it was “unique—and likely to remain so“), abrogated on other grounds by State v. Morris, 251 Neb. 23, 33-34, 554 N.W.2d 627 (1996). - Delgado-Santos v. State, 471 So. 2d 74, 78 (Fla. Dist. Ct. App. 1985) (“the overwhelming weight of authority on the issue is that no variation of police investigatory activity constitutes an [FRE] 801(d)(1)(A) . . . proceeding” (collecting cases)).
- Tisdale v. State, 498 So. 2d 1280, 1282 (Fla. Dist. Ct. App. 1986) (embracing Delgado-Santos’ interpretation of rule equivalent to
FRE 801(d)(1)(A) and explicitly rejecting Smith‘s contrary interpretation). - United States v. Bonnett, 877 F.2d 1450, 1462 (10th Cir. 1989) (rejecting argument that witness’ statement to Federal Bureau of Investigation agents was admissible under
FRE 801(d)(1)(A) because Castro-Ayon was “not persuasive and . . . clearly distinguishable“). - United States v. Dietrich, 854 F.2d 1056, 1061-62 (7th Cir. 1988) (reading Castro-Ayon as limited to “proceeding[s] . . . [that] contain[] many of the same procedural protections as a grand jury proceeding” and distinguishing the proceeding at issue in Castro-Ayon from a sworn statement made to investigating police officers in an interview that was neither transcribed nor conducted in front of a neutral third party).
- United States v. Day, 789 F.2d 1217, 1222-23 (6th Cir. 1986) (declining to follow Castro-Ayon “to the extent the facts are not distinguishable“).
- Bell v. City of Milwaukee, 746 F.2d 1205, 1274 n.83 (7th Cir. 1984), (noting in dicta that district court probably erred by admitting witness’ sworn statement to investigator under
FRE 801(d)(1)(A) ; noting that Castro-Ayon might be contrary), overruled on other grounds by Russ v. Watts, 414 F.3d 783 (7th Cir. 2005). - United States v. Powell, 17 M.J. 975, 976 (A.C.M.R. 1984) (rejecting Castro-Ayon to the extent that it would allow admission of “a statement made in a policeman‘s office during a non-advocatory, inquisitorial police investigation merely because an oath was administered“).
- United States v. Whalen, 15 M.J. 872, 878 (A.C.M.R. 1983) (stating that prior inconsistent statement made to investigating officer was not given in an “other
proceeding” for purposes of hearsay exception; noting that Castro-Ayon is contrary). - United States v. Luke, 13 M.J. 958, 960 (A.F.C.M.R. 1982) (rejecting Castro-Ayon to the extent that that case is not limited to its facts, i.e., to proceedings fundamentally similar to grand jury hearings).
- Livingston, 661 F.2d at 243 (holding that Castro-Ayon proceeding was distinguishable, for purposes of
FRE 801(d)(1)(A) admissibility, from interview by postal inspector that was conducted at home of government witness who gave sworn statement but was afforded no rights, and that was neither transcribed nor conducted in front of an independent officer).
Given this overwhelming and consistent authority, I disagree with the majority‘s conclusion that “Washington is not such an outlier” in its interpretation of the phrase “other proceeding” in
C. Contrary to the majority‘s assertion, Otton proposes a workable framework for analyzing ER 801(d)(1)(i) admissibility; it is the framework adopted by the other jurisdictions and compelled by the rule‘s plain language
I also disagree with the majority‘s assertion that “Otton does not propose a workable analytical framework for future cases.” Majority at 10. Otton asks us to adopt the interpretation of “other proceeding” that is used by every single other court that has considered the issue presented in Smith. See Suppl. Br. of Pet‘r at 11 (quoting Dietrich, 854 F.2d at 1061). And, as the majority expressly acknowledges, that interpretation holds that
The majority acknowledges that such an interpretation is “reasonable” but asserts that “it is not clear why it is more reasonable than Smith‘s interpretation.” Majority at 14. Again, I disagree. The interpretation of “other proceeding” adopted by the other jurisdictions is compelled by the rule of ejusdem generis, which holds that “‘specific terms modify or restrict the application of general terms where both are used in sequence‘” in a statute. State v. Stockton, 97 Wn.2d 528, 532, 647 P.2d 21 (1982) (quoting Dean v. McFarland, 81 Wn.2d 215, 221, 500 P.2d 1244 (1972)). In
In contrast to these other courts’ interpretation, the four-factor reliability test that Washington courts have derived from Smith bears absolutely no relationship to
Because Smith is inconsistent with
II. OTTON, HOWEVER, HAS NOT MET HIS BURDEN TO SHOW THAT SMITH IS CLEARLY HARMFUL
Although I conclude that Smith was incorrectly decided, I concur in the majority‘s decision because I agree that Otton has not made the requisite showing of harm sufficient to overcome the rule of stare decisis.
Our cases have identified various kinds of harm that can satisfy this standard. We have found precedent “harmful” because it was incorrect and inequitable. State v. Berlin, 133 Wn.2d 541, 548, 947 P.2d 700 (1997) (prior precedent harmful because it overruled well-reasoned precedent without showing that precedent was incorrect and harmful, and because it precluded lesser included offense instructions in too many cases). We have found precedent “harmful” because it created serious policy problems. State v. Barber, 170 Wn.2d 854, 865, 248 P.3d 494 (2011) (collecting cases). And precedent is certainly harmful when it infringes a constitutional protection. E.g., State v. W.R., 181 Wn.2d 757, 769, 336 P.3d 1134 (2014) (prior precedent violated due process protections); Barber, 170 Wn.2d at 871 (prior precedent offended separation of powers principles). But whatever underlying harm we have recognized, we have always required a clear showing of harm and we have placed this burden on the party seeking to overturn precedent. State v. Kier, 164 Wn.2d 798, 804-05, 194 P.3d 212 (2008) (citing State v. Devin, 158 Wn.2d 157, 168, 142 P.3d 599 (2006) (citing Stranger Creek, 77 Wn.2d at 653)).
I agree with the majority that Otton has not met that burden here. To support his argument that Smith is harmful, Otton simply asserts that ad hoc “reliability” determinations are inherently subjective and therefore unfair. Suppl. Br. of Pet‘r at 12-14. But as the majority points out, these determinations pose no constitutional problems in the context of
CONCLUSION
Smith‘s case-by-case reliability test conflicts with the plain language of
Gordon McCloud, J.