Admissibility of Alcohol and Gaming Commission of Ontario Reports

Admissibility of Alcohol and Gaming Commission of Ontario Reports Omar Ha-Redeye, AAS, BHA (Hons.), CNMT, RT(N)(ARRT), J.D. Candidate Annual Meeting of the World Institute for Research and Publication - Law June 4-6, 2010 Contents Introduction .............................................................................................................................................. 1 Part 1 ‐ Background .................................................................................................................................. 2 . Common Law Exceptions to Hearsay .................................................................................................... 2 Statutory Exceptions ............................................................................................................................. 5 Part 2 ‐ Interpretation ............................................................................................................................... 8 A Broad or Narrow Interpretation of Business Records ....................................................................... 8 Importance of First‐Hand Knowledge ................................................................................................. 11 Admissibility of Double Hearsay ......................................................................................................... 13 Inconsistencies in the Business Record Exception .............................................................................. 15 Part 3 – New Requirements .................................................................................................................... 22 The Need for a Principled Approach ................................................................................................... 22 Applying the Principled Approach to Common Law ........................................................................... 24 Other Requirements and Further Developments ............................................................................... 26 Part 4 ‐ Conclusions ................................................................................................................................ 28 .

Introduction It’s a crowded, noisy room, late at night, with lots of inebriated patrons milling about in a reputable (a generous term) establishment. Some of the people there that night later get involved in a criminal act or other mischief resulting in a civil action. The liability of the establishment in serving minors or over-serving others is at issue. The problem is that all the potential witnesses have conflicting and inaccurate recollections of the evening, probably because they too were highly intoxicated. Plaintiff’s counsel wants to demonstrate that the owner was acting negligently, and the defendant similarly wants to prove that they took all reasonable steps. An objective source of evidence exists in the form of report by an inspector of the Alcohol and Gaming Commission of Ontario (AGCO). How will the court treat this document, and what are the barriers to admissibility? Production of documents from a non-party is governed with leave in Ontario by Rule 30.10,1 and requires relevance to the material issue and unfairness for the moving party to proceed to trial without the documents.2 On first instance the documents would be inadmissible as a form of hearsay, because they are sought to prove the truth of the matter asserted as “an out- of-court statement that is offered to the court to prove the truth of its contents,”3 namely the liability of the establishment inspected by the report. But exceptions do exist to the hearsay rule for business documents under the common law and statute. The more recently developed principled approach provides another means for admissibility. There is also the challenge that inspector’s notes in other contexts, such as a police officer at the scene of an accident, are considered inadmissible. Despite these obstacles, AGCO reports can be distinguished from police reports and found to be admissible under all of these exceptions. 1 Rules of Civil Procedure, R.R.O. 1990, Reg. 194. 2 Ortega v. 1005640 Ontario Ltd., [1999] O.J. No. 2432 at 16-17 (Ont. S.C.J.). 3 R. v. Evans (1993), 85 C.C.C. (3d) 97; 108 D.L.R. (4th) 32 at para. 16. (S.C.C.). 1

Part 1 Background Common Law Exceptions to Hearsay The purpose of the hearsay rule at common law was to ensure the reliability of the evidence tendered. Ideally only information for which direct knowledge was available was admitted, and cross-examination was desirable whenever possible. However, the hearsay rule could lead to rigidity, and exceptions were therefore available even in the 19th century. The court in R. v. Monkhouse4 outlined the common law criteria for business records, 16 Wigmore defined no less than seven criteria to be satisfied at common law for the admission, as evidence of the truth of its contents, of a document containing hearsay. These were that the hearsay portion must be (1) an original entry, (2) made contemporaneously with that which it recorded, (3) in the routine, (4) of business, (5) by a person since deceased, (6) who was under a duty to do the act and record it and (7) who had no motive to misrepresent it: Wigmore, 3rd ed. (Chadbourn rev., 1974), vol. 5, sections 1517 and 1521-35. In Sugden v. Lord St. Leonards5 Lord Pearce also identified four criteria that should be present for hearsay exceptions generally, Now I take it the principle which underlies all these exceptions is the same. In the first place, the case must be one in which it is difficult to obtain other evidence, for no doubt the ground for admitting the exceptions was that very difficulty. In the next place the declarant must be disinterested; that is, disinterested in the sense that the declaration was not made in favour of his interest. And, thirdly, the declaration must be made before dispute or litigation, so that it was made without bias on account of the existence of a dispute or litigation which the declarant might be supposed to favour. Lastly, and this appears to me one of the strongest reasons for admitting it, the declarant must have had peculiar means of knowledge not possessed in ordinary cases.6 The court was reluctant to create a new hearsay exception for a new case on facts that may never appear again because it would create uncertainty in the law, and preferred the issue be addressed by the legislature.7 A similar position was adopted by the House of Lords in Myers v. Director 4 [1988] 1 W.W.R. 725 (Alta. C.A.) [Monkhouse]. 5 [1876] 1 P.D. 154 (HoL). 6 Ibid. at 241. 7 Ibid. at 251-252. 2

of Public Prosecutions,8 which dealt with a conspiracy to receive stolen cars and defraud customers. The Crown alleged that identical legal cars that were wrecked had been purchased for each stolen car, using their registration numbers to fool customers. To help prove this, the Crown called witnesses that maintained, but did not create, records of the numbers. The defence objected on the grounds of hearsay, which was adopted by the majority. The dissent provided by Lord Pearce stated that the common law must change to meet economic conditions, In my opinion, where the person who from his own knowledge made business records cannot be found, and where a business produces by some proper servant, who can speak with knowledge to the method and system of record-keeping, its records reliably kept in the ordinary way of business, they should be admitted as prima facie evidence.9 But he also stated that there are limits to what the court can do, and they should not introduce arbitrary conditions or limitations. Extending the law by the development and application of fundamental principals must be left to the legislature.10 The English legislature has yet to address the issue to this day, and Canadian jurisprudence has therefore progressed beyond that of the English courts. The changing commercial nature in modern England and Canada were raised by Aylesworth, J.A. in Aynsley v. Toronto General Hospital,11 24 The cases under review both in this country and in England make it clear, I think, that the liability of a hospital for the negligent acts or omissions of an employee vis-à-vis a patient, depends primarily upon the particular facts of the case, that is to say, the services which the hospital undertakes to provide and the relationship of the physician and surgeon to the hospital. The introduction into England of nationalized medicine probably has greatly altered the factual situation in that country with respect to the enquiries I have just mentioned, but each case there, I take it, will turn upon its particular facts. Similarly, I think in Ontario vicarious liability will be driven home to the hospital or plaintiffs will fail in that attempt, depending upon the peculiar facts of each case. [emphasis added] 8 [1964] 2 All E.R. 881 at 900 (HoL) [Myers]. 9 Ibid. at 885-886. 10 Ibid. at 1021. 11 [1969] 2 O.R. 829, 7 D.L.R. (3d) 193 (Ont. C.A.); aff’d [1972] S.C.R. 435 [Aynsley]. 3

Around the same time as Aynsley, the Supreme Court of Canada addressed an issue of business records exception to hearsay in the hospital sector in Ares v. Venner.12 The court sought to admit nurses notes under the hearsay exception in a medical malpractice case and adopted the dissent in Myers, expanding the hearsay exception rule where English courts were reluctant to do so, and removing the common law requirement of the declarant being deceased. The court stated, 26 Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Had the respondent here wanted to challenge the accuracy of the nurses' notes, the nurses were present in Court and available to be called as witnesses if the respondent had so wished. An AGCO report is made directly and contemporaneously by the inspector who personally observes the incidents in an establishment, and is under a duty to do so. Subsequent cases made important note that the nurses were available for cross-examination in Ares and attempted to limit it to these facts.13 Others distinguished it when necessity or circumstantial guarantee was not present, as this was the basis for the exception under Wigmore’s test.14 But generally the rule in Ares was broadened by the majority of cases that followed. The comments of Griffiths J. at the Ontario Supreme Court in Setak Computer Services Corp. Ltd. v. Burroughs Business Machines Ltd.15 in reference to Ares was probably a little optimistic though, 23 That case settles the common law in Ontario. Although the statement refers only to hospital records, it may be inferred that this decision also settles the law applicable to records of other businesses made in similar circumstances. 12 [1970] S.C.R. 608, 73 W.W.R. 347, 12 C.R.N.S. 349, 14 D.L.R. (3d) 4 [Ares] 13 R v. Cosgrove & Dubois, [1975] O.J. No. 2658 at 13 (Ont. Ct. of Gen. Sess. of Peace). 14 R. v. Lal, [1979] B.C.J. No. 1960 at para. 23 (B.C. C.A.). 15 (1977), 15 O.R. (2d) 750, 76 D.L.R. (3d) 641 [Setak]. 4

Statutory Exceptions Canadian legislatures took up the decision in Ares and passed a number of statutes for hearsay exceptions for business records. The Canada Evidence Act16 states, Business records to be admitted in evidence 30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record. Records of the AGCO inspector are made in the usual and ordinary course of business. Indeed, it is the ordinary course of business of the inspector to create such records. But the Federal Act has another provision that makes it distinct from common law and other statutes on business records, Evidence inadmissible under this section 30. (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (i) a record made in the course of an investigation or inquiry, (ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding, [emphasis added] AGCO reports are made during an investigation of sorts. This is the purpose of the record, and for the visit of the inspector’s visit. In a domestic murder case, R. v. Czibulka,17 the Ontario Court of Appeal considered a letter that the deceased’s physician recorded. Rosenburgh J.A. stated,18 …the circumstances under which the statement was made strongly suggest a motive to fabricate. She told the physician the statement was made for the purpose of creating a record. This suggests that her intention in making the statement was that she was contemplating litigation.5 A statement made in contemplation of litigation is a classic reason to suspect that the statement was contrived. Thus, for example, see Canada Evidence Act, R.S.C. 1985, c. C-5, s. 30(10)(a)(ii), which precludes admission of business records made in contemplation of litigation. 16 R.S., 1985, c. C-5. 17 [2004] O.J. No. 3723 (Ont. C.A.) [Czibulka]. 18 Ibid. at 57. 5

A motive to fabricate is absent with AGCO reports, especially in the context of criminal trials, which are a remote possibility in the mind of the inspector. A number of cases reinforce this principle. In the tax evasion case of R v. Daley19 the New Brunswick Provincial Court looked at the circumstances under which a document requested by the Revenue Canada Agency for their investigation and trial was created. It was made by a government official carrying out their usual and ordinary business, and its main purpose was not in anticipation of litigation. The fact that it was requested for trial did not change the character of it so that it would fall under s. 30(10), and was therefore admitted. However, the reports in R. v. Laverty20 were deemed inadmissible because they were created by a deceased investigator specifically for the purposes of litigation. However, the notes in this case were also excluded because they were submitted for the cross- examination of a living inspector that succeeded him, and did not provide notice as required by the statute.21 The first distinction in Laverty was confirmed in R. v. Johnson, where a firearms trace record that was requested by a police officer was not considered part of an inquiry per s. 30(10)(a)(i), as it was not done in contemplation of litigation. 22 The terms “investigation” and “inquiry” under s. 30(10)(a)(i) have been construed by the courts as litigation, and is not likely to apply to the inspections made by the AGCO. 19 [2007] N.B.J. No. 443 (N.B. P.C.) at 64. 20 [1979] O.J. No. 442; 47 C.C.C. (2d) 60 (Ont. Sup. Ct. C.A.) [Laverty]. 21 See Canada Evidence Act, supra note 16, Notice of intention to produce record or affidavit 30. (7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party. 22 [2004] M.J. No. 211; 2004 MBQB 123 at 3-13. 6

Provincial statutes also exists governing business record exceptions, and since a civil context is more likely for AGCO reports, are more likely to be invoked. The Ontario Evidence Act,23 the provincial statute that would govern the AGCO, states, Business records Definitions 35. (1) In this section, “business” includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise; (“entreprise”) “record” includes any information that is recorded or stored by means of any device. (“document”) R.S.O. 1990, c. E.23, s. 35 (1). Where business records admissible (2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter. R.S.O. 1990, c. E.23, s. 35 (2). There are a number of additional requirements stipulated by the provincial statute that are not found in the Federal Act. In addition to requiring it be made “made in the usual and ordinary course of business,” there is the requirement that “it was in the usual and ordinary course of such business to make such writing or record.” A temporal connection is required here that is also not found in the Federal Act. AGCO reports are a requirement of the inspectors visit, and provide documentation of the events and observations that transpired. They are usually recorded as soon as it is practically possible, but opposing counsel may seek to cross-examine on this point. These additional requirement increases the reliability of documents admitted under the provision, which becomes more relevant under the principled approach discussed below. 24 23 R.S.O. 1990, c. E.23. 24 Children's Aid Society of London and Middlesex v. S.K., [2006] O.J. No. 2662; 149 A.C.W.S. (3d) 611 at para. 5 (Ont. S.C.J.) [S.K.]. 7

Part 2 Interpretation A Broad or Narrow Interpretation of Business Records The cases that followed Ares went back and forth on the breadth of interpretation of business records exceptions. In Setak, the plaintiff sought to admit records from the minutes of a meeting between the parties prior to litigation. Griffiths J. stated at page 756: 31 Although there is no doubt that the basic rationale of the American enactment and of s. 36 of the Ontario Evidence Act is to afford a more workable rule of evidence in the proof of routine business records, s. 36 is cast in very broad terms so as to encompass practically every type of writing utilized in connection with any business. 32 The term "business" in itself is by the section broadly defined so as to include "every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise". 33 Thus, in current practice, records kept by individuals carrying out any calling, including records of organizations such as churches and other non-profit organizations, may be admissible under this section, so that whatever the original intention of the Legislature, the section itself seems to have been drafted in very broad terms. [emphasis added] This interpretation of the business record exception extended it to all business documents beyond what was addressed in Ares, or the ledgers, time-cards, pay-roll, and other commercial records which the legislation as primarily created for. The court provided justification that the intent was not exclusive at page 757-758: Section 10 of the Interpretation Act, R.S.O. 1970, c. 225, provides as follows: 10. Every act shall be deemed to be remedial ... and shall accordingly receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act according to its true intent, meaning and spirit. Obviously, the "true intent, meaning and spirit" should only be obtained from the language employed by the Legislature. Other cases, however, took a slightly different approach. In Woods v. Elias,25 the court dealt with the admissibility pursuant to the Ontario Act at that time of police investigation records surrounding a motor vehicle collision by an officer investigating the site. Smith Co. Ct. 25 (1978), 21 O.R. (2d) 840 (Co. Ct.) [Woods]. 8

J. rejected it outright on the basis of the statutory provisions by saying that the definition of business used here was too broad, 4 …The use of the word "business" has in my view a great deal of significance… While the term "business" as defined in s. 36(1)(a) seems broad enough to include every type of activity including a police investigation, the ejusdem generis rule must come to our aid lest we do away almost entirely with the hearsay rule. The floodgates would be open... Setak extends it to minutes of a meeting. And no doubt a great many other activities would fall within its purview. Otherwise the words used to define business would be mere surplusage. But I was not referred to any decision which would have the effect of broadening the section to the extent attempted here. The court suggested that the legislature could not have intended an interpretation that would include government activities. Legislatures in other provinces have done exactly that, and define “business” in their respective Acts to include government activities.26 But the court provided additional reasons for rejecting a statutory interpretation that would allow investigation records, 7 If additional reasons were needed to reject the defendant's contention I would rely upon the obvious dangers inherent in eroding the hearsay rule in this fashion. The officer attending at the scene is caught up in the dynamics of the accident situation. He is confronted by people in a high state of tension, anxiety and emotion. The possibility of criminal charges is forever present in his mind, to say nothing of civil litigation which follows in such a vast number of cases. [emphasis added] As mentioned with Czibulka, criminal charges and civil litigation are far less commonplace with AGCO reports, and that is not their primary purpose. An AGCO inspector conducts his observations surreptitiously, without confrontation, and absent of tension, anxiety and emotion characterizing car crashes. The contents of the report instead contain observations of the staff, number of people, and state of inebriation. Woods also rejected the common law admissibility as 26 The Manitoba Evidence Act, C.C.S.M. c. E150, states, Definitions 49(1) In this section "business" includes every kind of business, profession, occupation, calling, operation, or activity, whether carried on for profit or otherwise, and whether carried on by or as part of the operation of government; [emphasis added] 9

based on Ares. Smith Co. Ct. J. acknowledged that the common law provisions were far more complex, but adopted an extremely narrow interpretation of this exception, 19 I prefer to read nothing more in Ares v. Venner than the narrow facts necessarily import, namely, that hospital records ought to be received in evidence without the declarant testifying when available particularly if present in the court-room and it is not inconceivable that hospital records would be admissible on the basis of this case when the recorder was unavailable. In the first instance the Court was merely restating in slightly different form the first exception dealing with the recording of past events by an available witness. In the second, the requirement of death would be removed in the case of hospital records or records of a very similar nature that offered a high degree of reliability. Other cases have cited Woods in context of other situations, indicating that opinions are inadmissible. P. Hryn J. stated in R. v. Felderhof27 63 In Woods v. Elias (1978) 21 O.R. (2d) 840, at page 1 of Quicklaw, the court refers to expunging the "opinions or conclusions recorded by the officer and all statements, if any, made by the parties" from an accident report that was ultimately held not to be admissible. … 67 Opinions are inadmissible not because they are expert opinions but because they are not acts, transactions, occurrences or events. [emphasis added] But this ruling in Woods has received some critical commentary. In Matheson v. Barnes,28 an insurance adjuster for an insurance company investigated the scene of an accident three weeks later. His report included statements of a person who was dead at the time of trial. Although eventually the records were considered inadmissible on other grounds,29 Locke J. said, 9 I may say that I do not agree, with the greatest of respect, with Smith Co. Ct. J. who, in the case of Woods v. Elias (1978), 21 O.R. (2d) 840 (Co. Ct.), gives a penetrating analysis of the problem. But in the end he restricts Ares v. Venner, supra, to hospital records and goes no further. In my opinion, it is intended that it be more broadly applicable. 27 [2005] O.J. No. 4151; 2005 ONCJ 406 (Ont. S.C.J.). 28 [1981] 2 W.W.R. 435 (B.C. S.C.) [Matheson]. See also K/S A/S Offshore Atlantic v. Marystown Shipyard Ltd. (1988) 72 Nfld. & P.E.I.R. 200, 223 A.P.R. 200 (Nfld. Trial Div.) at 7-8. 29 The evidence lacked the circumstantial guarantee of trustworthiness, which was the basis of creating the hearsay rule to begin with. Again, this is more relevant once the principled approach is applied. 10

The notion expressed in Woods30 that broadening the definition of businesses under the Act would do away with the hearsay rule entirely and open uncontrollable floodgates has been proven unwarranted by subsequent cases and modifications to the hearsay exceptions. Instead, the courts have suggested the few litigation cases surrounding hearsay exceptions demonstrates its effectiveness. Chipman J.A. stated for the Nova Scotia Supreme Court,31 16 …The relatively small number of reported cases dealing with s. 22 and similar legislation in other jurisdictions suggests that it works well in practice… Importance of FirstHand Knowledge There are other distinctions between the case in Woods and AGCO reports worth highlighting. In C.A.S., Halifax v. H. (L.T.)32 the court reviewed an appeal of the admission of files concerning a mother’s family as business records. MacDonald Co. Ct. J. allowed the appeal and explained the concerns that accompany introducing these type of documents, 24 It is my opinion that to allow in third party statements, as here, made in the running notes, is giving too broad an interpretation to the business record hearsay exemption… 25 The hearsay contained in the running notes on files if allowed in would be in great contradiction to our well established evidentiary rules. Under our present rules, the writer would not, if on the stand, be allowed to state in evidence what that person or persons told him or her as contained in the notes. Yet, to allow them in as a "business record" exception would be, in my view, against one of our main principles of evidence. 26 In this case, we have an agency collecting evidence and, with its large organization, why should it be allowed to get in evidence of the nature here without calling as witnesses the person or persons who made the statements? Surely, the average citizen would have to present the evidence that way. I suggest here that the agency has more and greater resources to find and obtain the witness or witnesses necessary than does the average citizen… 28 The acceptance of third party representation, comments, stories or even gossip might by the "business record" exception be put on paper and be allowed in a court of law without properly standing the test in court of other evidence which might be called at trial. There is no doubt but that one of the old rules of evidence which has stood the test of centuries is that the plaintiff must prove his assertion as in this case to the civil preponderance. The onus ought not to be on the appellant herein to call witnesses on their part, or as their own, to question them on matters which they might have been reported to have said which forms 30 Supra note 25 at para. 4 31 H. (L.T.) v. Children's Aid Society of Halifax (City) (1989), 19 R.F.L. (3d) 171; 90 N.S.R. (2d) 44 (N.S. S.C.). 32 (1988), 16 R.F.L. (3d) 97 (N.S. C.C.); aff’d (1989), 90 N.S.R. (2d) 44 (N.S. C.A.). 11

part of the "business record". This to me would impose all sorts of difficulties with regard to how the witness would be handled and encumber the whole system…. 32 I would, however, allow the appeal to the extent that the hearsay remarks of third parties, who are not under a duty in the normal course of business to make a report to a person recording it, should be excluded from the "business record". In particular, this covers the "recording notes" contained in the running files of third party statements. No weight should be attached to such hearsay. [emphasis added] Other inspection records by law enforcement officials have been admitted, and can be used to distinguish from the case in Laverty. In an immigration case, Canada v. Obodzinsky,33 the defendant sought to exclude reports by Canadian RCMP in Italy that were screening members of the Polish resistance military. The officers were deceased as in Laverty, and the Minister sought to admit them as business documents. The court allowed the documents because they were made by civil servants in the course of duty, and the contents were primarily based on personal observation and recollection. Lemieux J. stated, 36 If the Shakespeare report had discussed one or more interviews with candidates or disclosed the content of such an interview, the situation might have been different; but that was not the case. 37 With the Shakespeare report we are far from the situation before the Ontario Court of Appeal in R. v. Laverty (No. 2) (1979), 47 C.C.C. (2d) 60, where the Court excluded notes taken by a fire department inspector in the course of his investigation of a fire at the residence of the accused. [emphasis added] The RCMP officers had personal knowledge of the information contained in the report. In another case, Catholic Children's Aid Society of Toronto v. J.L.,34 hearsay police occurrence reports were admitted because they were either based on personal knowledge of the officer recording it, or received from another officer acting under a duty to report. G.A. Campbell J. explained this principle in Children's Aid Society of London and Middlesex v. S.K., 35 8 Police officers have a duty to record the information given by third parties accurately; they are in "the business" of doing so. However, the issue arises whether any of the persons offering statements in P.O.R.s were one of the parents or merely a third party informant who was not engaged in the business of producing the records or under any duty to do so (other than fellow police officer for instance). As the informant group has no comparable duty to accurately report the information, any portion of a P.O.R.s 33 [2003] F.C.J. No. 370; A.C.F. no 370 (Fed. Ct. Can. – Trial Div.). 34 [2003] O.J. No. 1722 (Ont. Ct. J.) [Martin]. 35 Supra note 25 at para. 3. 12

constructed from these third party statements would not fit within the hearsay "business records" exception to hearsay… [emphasis added] In R. c. Berniquez36 a neighbour witnessed a car being stolen and wrote down the license plate on a note. He passed the note on to his mother, who provided it to the police officer, who included it in his report. The Quebec Court of Appeal ruled that a police report had a severed link between the author of the note and the officer that recorded it. If the note itself or testimony by the mother of the authenticity of the facts within was available, then the reliability of the police report might have been sufficient to admit it. Returning back to the context of the accident collision reports in Woods, the officer has to rely on observations of other witnesses to the crash who were not under a duty to report for his report. This creates what is referred to as the double- hearsay rule. Admissibility of Double Hearsay There are some statutory provisions that allow for double-hearsay. The Canada Evidence 37 Act states, Court may examine record and hear evidence 30. (6) For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record. The issue was discussed in R. v. Martin, where a new trial was ordered when tables produced in the course of business relying on figures from Statistics Canada were excluded, 36 The principal issue concerned "double hearsay", i.e., information contained in a record which was given to the record keeper who has no knowledge of its accuracy. 37 Many of the provincial equivalents of s. 30(1) specifically require a court to overlook double hearsay. For example, s. 31(3) of The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16 provides "[t]he circumstances of the making of a writing or record mentioned in subsection (2), including lack of personal 36 (1996), 112 C.C.C. (3d) 380 (Que. C.A.). 37 Supra note 16. 13

knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility." The difference between the provincial and federal legislation appears to lessen the effectiveness of the latter… 38 Added to this, s. 30(6) of the Canada Evidence Act provides that a court may consider the circumstances in which the information was written to determine whether any provision of s. 30 applies. This lends further weight to the proposition that Parliament intended courts to exclude documents containing double hearsay. … 48 The opening words of s. 30(6) appear to permit a consideration of weight to be made when the court considers admissibility. But if this means a court must reject a record because it contains double hearsay, it places documents prepared in the ordinary course of business in a fundamentally different category than documents admitted pursuant to the common law business duty exception. As indicated in Ares, weight is an issue to be addressed after the document is accepted as evidence. The circumstances in which the information was gathered or the record produced, or the lack of such evidence, may affect the weight to be given to it by the trier of fact, but it does not affect its admissibility. [emphasis added] The proposition in Martin that double-hearsay only affects the weight, and not the admissibility, has been challenged by other cases. The provincial legislature, however, directly addressed the issue in statute. The Ontario Act states, Surrounding circumstances 35.(4) The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility. R.S.O. 1990, c. E.23, s. 35 (4). One of the first cases reported on s. 35 was Aynsley, where Morand, J. addressed the question of weight at trial,38 12 … it appears to me that the only effective way to deal with it is that while a document is admissible, the question of weight is a question for the Judge to decide, and in dealing with the question of weight the Judge will apply all of those old rules of evidence which have stood the test of centuries." [emphasis added] The Federal Court considered in Canada v. Oberlander39 a case of citizenship revocation based on WWII war documents created by the German government. The documents contained double 38 [1968] 1 O.R. 425 (Ont. H.C.). 39 [1998] F.C.J. No. 1380; [1999] 1 F.C. 88; overturned at C.A. on other grounds, 2004 FCA 213, 37 Imm. L.R. (3d) 75; 241 D.L.R. (4th) 146 [Oberlander]. 14

hearsay, but were admitted under s. 30 of the Federal Act. The basis for this admission however, was a provision in the Federal Court Act,40 Admissibility of evidence 54(2) Evidence that would not otherwise be admissible is admissible, in the discretion of the Federal Court of Appeal or the Federal Court and subject to any rule that may relate to the matter, if it would be admissible in a similar matter in a superior court of a province in accordance with the law in force in any province, even though it is not admissible under section 40 of the Canada Evidence Act. This allowed the admission of double hearsay with the Court’s discretion under s. 30 of the Federal Act by referring to s.35(4) of the Ontario Act. Inconsistencies in the Business Record Exception As with many areas of hearsay exceptions, there are various inconsistent requirements across the case law. Ares failed to provide clear guidelines for the criteria for hearsay exception of business documents are, often due to different and conflicting requirements of the common law and statutes. For example, although Woods introduced the requirement that the person making the document must be present for cross-examination, this has been followed by some cases and rejected by others. In R. v. Sunila41 the Crown applied for a computer print-out from a surveillance aircraft to be entered as evidence Canadian Armed Forces aircraft surveillance entered as evidence. The aircraft was observing a ship owned by the accused in a trial over drug smuggling. Although the case was in a criminal context, they adopted the broad interpretation of business mentioned in Setak, noting that it was still applicable even if not in a civil case.42 But the purpose of the surveillance was primarily for criminal charges, and therefore excluded under s. 30 (10)(a)(i) of the Federal Act. However, the court did admit the evidence at common law, noting it met the requirements in Ares of contemporaneous recording of personal knowledge 40 R.S.C. 1985, c. F-7 41 (1986), 26 C.C.C. (3d) 331; 73 N.S.R. (2d) 308 (N.S.S.C. - Trial Div.); aff’d (1987) 35 C.C.C. (3d) 289; 78 N.S.R. (2d) 24 (N.S.S.C. – Appeal Div.) [Sunila]. 42 Ibid. at para. 7. 15

while under a duty. But they also added the Woods requirement of the person being available or cross-examination. 43 Yet in another criminal trial, R. v. Grimba,44 the Ontario County Court came to a different conclusion. The court reviewed the evidence of a fingerprint expert employed by the F.B.I. that the prints matched that of the accused, and affirmed that government activities constituted a “business” under the Federal Act. The evidence was admitted, even though the expert did not have original knowledge of the contents and did not make the document himself.45 No requirement for cross-examination was mentioned. The position was reconciled by stating that the requirements did not apply to the statutory admission of business records, 16 At common law and under the current English legislation, which is similar to that before the Court although not exactly the same, as the record is admissible only if its maker is shown to have personal knowledge of the facts recorded. It would appear to me, s. 30 has removed that requirement and by so doing contemplates the admission of a record containing such things as the double hearsay involved herein, when one refers to the back of the record which identifies the person whose fingerprints are recorded thereon. Houlden J.A also confirmed in R. v. Anthes Business Forms Ltd.46 that s. 30 of the Federal Act included double hearsay in business records from an accused corporation where documents were prepared by third parties but in the possession of the accused. The British Columbia Court of Appeal dealt with the issue of double hearsay in R. v. Penno.47 A written inventory of goods was sought to be admitted to be used to establish the identity of stolen goods. Both the employee who wrote the numbers down, and the employee that called them out on inspection, were called to testify. This created a two-part test, the first witness establishing the nature of the recording 43 Ibid. at para. 17. 44 (1977), 38 C.C.C. (2d) 469 (Ont. Co. Ct.). 45 Ibid. at para. 15. 46 (1975) 26 C.C.C. (2d) 349 at paras. 52-3(Ont. C.A.); aff'd. [1978] 1 S.C.R. 970 (S.C.C.) [Anthes]. 47 (1977), 35 C.C.C. (2d) 266 (B.C. C.A) [Penno]. 16

system, and the second confirming the accuracy of the information recorded.48 Both of these cases were criticized or distinguished by the Newfoundland court by Puddester J. in R. v. Ross,49 who said that the documents in Anthes could not be determined whether they were actually prepared by the accused or a third party. Anthes is also distinguished because these documents were not admitted for their contents, but to establish a practice of recordkeeping.50 Further, Puddester J. did not suggest that the two-part test used in Penno was a binding procedure for s. 30(1), but noted that s. 30(9) distinguished knowledge of making and knowledge of contents, indicating that a document may include hearsay, Examination on record with leave of court 30.(9) Subject to section 4, any person who has or may reasonably be expected to have knowledge of the making or contents of any record produced or received in evidence under this section may, with leave of the court, be examined or cross-examined thereon by any party to the legal proceeding. He recognized the practical difficulties in bringing a chain of individuals to prove the truth of a business record, and even though a manager re-recorded the inventory he was present for cross- examination.51 Other cases have also gone beyond the requirements found in Setak. In R. v. Madsen52 the court reviewed hearsay testimony. Personal observation or knowledge was insufficient to find these records admissible, because they lacked Wigmore’s principles of necessity and circumstantial guarantee of trustworthiness, which were the basis of the hearsay exception to begin with.53 These principles were emphasized by Wigmore because they provided a practical 48 Ibid. at paras. 6-8. 49 (1991), 92 Nfld. & P.E.I.R. 51 (Nfld. Trial Div.). 50 Ibid. at paras. 52-54. 51 Ibid. at paras. 58-64. 52 (1980), 2 Man. R. (2d) 420 at 425 (Man. C.A.). 53 Ibid. at para. 13. 17

substitute for cross-examination.54 Common law criteria in this case were therefore subsumed by the principles behind their creation. However, the Alberta Court of Appeal rejected this requirement in Monkhouse, where payroll records were used despite the manager or other employees having no personal knowledge of the information in question. Time cards, which would have had the original information, were not produced. Laycraft C.J.A. stated, 24 …The "original entry" need not have been made personally by a recorder with knowledge of the thing recorded. … it is sufficient if the recorder is functioning in the usual and ordinary course of a system in effect for the preparation of business records. The court cited three cases to support their position in this respect. The first was Omand v. Alberta Milling Co.,55 where a flour and grain dealer had a complex system of inspection and tests that were designed to guarantee their accuracy. Even though the original entry was created by different persons, Stuart, J.A. said it was “absurd” to speak about a witness’ memory being refreshed, and referred to the sheer impossibility of calling all the witnesses involved.56 Instead, a superintendant that observed and compiled the records could testify to their accuracy. Next, the court cited J.H. Ashdown Hardware Co. v. Singer,57 where the admissibility of a ledger account for a shipping dock was considered. The court indicated that direct proof of actual delivery or evidence by a clerk receiving the materials could not be reasonably required for modern commercial businesses because of staff turnover, impracticalities in obtaining evidence, and difficulty in recollecting specific transactions.58 But the proposition in Ashdown has not been generally accepted where such rigorous systems were not in place.59 Finally, the court in 54 Ibid. at para. 11. 55 [1922] 3 W.W.R. 412; 69 D.L.R. 6 (Al. S.C. – Appell. Div.). 56 Ibid. at para. 3. 57 [1951] 3 W.W.R. (N.S.) 145 (Al. S.C. – Appell. Div.); aff’d [1953] 1 S.C.R. 252, [1953] 2 D.L.R. 625 [Ashdown]. 58 Ibid. at para. 9. 59 Nor-Wes Building Supplies Ltd. v. Arrowsmith, [1956] 19 W.W.R. 565 at paras. 9-11 (B.C. S.C.). 18

Monkhouse cited the Supreme Court of Canada case Canada Atlantic Railway v. Moxley,60 a case where farmers sought damages for their property due to a train fire. A report by the engine drive was admissible because they were under a duty to make the entry, but the evidence was entered by another person.61 The court in Monkhouse did note that these three cases were all discussed in Ares.62 Monkhouse is also an example of one of the cases mentioned above where lack of personal knowledge was deemed to affect the weight of the statement, not the admissibility. The position in Monkhouse may be limited though, because it also relied the sworn testimony of the witness of the contents of the document. This in turn was based on the statement of Lord Pierce in Myers for best evidence, as cited in Ares,63 …In my view the anonymity of the recorder or the impossibility of tracing him create as valid a necessity as does his death for allowing his business records to be admitted. The principles on which the court sets out to discover the truth about these things remain unchanged, but the way in which those principles are applied must change if the principles are to be honoured and observed. It is possible that between the time when an AGCO report is initially filed, and a case comes up for trial, the agent is no longer available or cannot be located. A supervisor or other appropriate individual may testify on their behalf, if the requirement for cross-examination is maintained. Common law principles have also been overlooked when dealing with statutes. For example, it was mentioned that Laverty required that the maker of a record must have made it under a duty to a third person. But this requirement was not maintained in R.v. Wilcox64 because the duty requirement was only in common law, and not under statute. Central to the Crown’s case was a crab book, which documented fishing in excess of their quotas allotted by the 60 (1888), 15 S.C.R. 145. 61 Ibid. at paras. 24-25. 62 Supra note 12 at para. 18. 63 Supra note 11 at para. 24. 64 [2001] N.S.J. No. 85; 192 N.S.R. (2d) 159 (N.S. C.A.) [Wilcox]. 19

Department of Fisheries and Oceans. Instead, the document was evaluated on merits of trustworthiness, even though the purpose of the duty requirement was to provide a circumstantial guarantee of trustworthiness.65 Conversely, statutory requirements such as exclusion based on contemplation of litigation are not applicable to the common law exception. In a first degree murder case, R. v. Heyden,66 the court considered the testimony of the accused’s estranged wife that he had told her of his plans to move in with the accused to “get rid of him” and get his money. The planning and deliberation involved with this statement was essential to raising the charges to first degree murder. Matrimonial litigation between the parties was not considered material enough to exclude the evidence.67 Additionally, the court said that s. 30(10)(a)(ii) of the Federal Act had no bearing on the common law. The authority cited for this was Sunila, where the common law approach was used where the statutory approach was unsuccessful.68 Rosenberg J. of the Ontario Supreme Court also claimed in Tecoglas Inc. v. Domglas Inc.69 it unnecessary to determine if the Ontario Evidence Act was broader than at common law. This view was rejected by Arbour J. (as she then was) in Exhibitors Inc. v. Allan,70 and attempted to limit the ruling in Ares to Alberta because the case originated there. Alberta did not have at the time the equivalent statutory exception under s. 35 that would allow business documents as an exception.71 She stated, 33 …In this jurisdiction, admissibility is governed by statute and the statute supercedes the common law. The co-existence of the common law and the statutory provisions would lead to undesirable difficulties with respect to their respective conditions of admissibility. For example, under Ares, documents are admissible if made contemporaneously by someone having personal knowledge of the matters being recorded and under a duty to record. No notice is required. Under s. 35 of the Evidence Act, a document is admissible if made in the usual and ordinary course of business regardless of whether the maker of the 65 Ibid. at para. 51. 66 [1999] O.J. No. 4615 (O.C.J. (Gen. Div.)) at 11; 67 Ibid. at para. 11. 68 Supra note 41 at para. 14. 69 [1985] O.J. No. 1228; 3 C.P.C. (2d) 275 at para. 7 (Ont. S.C. - H.C.). 70 (1989), 70 O.R. (2nd) 103; O.J. No. 1221 (Ont. H.C.J.). 71 Ibid. at paras. 30-32. 20

document had personal knowledge of the matters recorded. Notice is required. This position would appear to invalidate common law exceptions to business records where statutory provisions exist. Kovacs J. in Mastrangelo v. Kitney72 looked at the admissibility of Ontario Health Insurance Plan (OHIP) records that noted a chiropractor claim of prior to the date of the accident. The court, with great respect, indicated that they did not agree with Arbour J.’s proposition that Ares did not apply in Ontario. More recent cases have affirmed that where a business record fails to be admitted under statute, other means including the common law may be used. 73 72 [1992] O.J. No. 2932; 16 C.P.C. (3d) 262 (O.C.J. – Gen. Div.). 73 R. v. M.P., [2000] O.J. No. 5817; 149 C.C.C. (3d) 169 at paras. 66-67, 77-78 (Ont. S.C.J.). 21

Part 3 – New Requirements The Need for a Principled Approach This maze of business records exceptions called out for what Iacobucci J. called a need for an “intellectual coherence of the law of hearsay.”74 The Supreme Court of Canada established in R. v. Khan75 what is called the “principled approach,” which was based around necessity and reliability. McLachlin J. was specifically critical about the rigidity surrounding hearsay, 18 The hearsay rule has traditionally been regarded as an absolute rule, subject to various categories of exceptions… While this approach has provided a degree of certainty to the law on hearsay, it has frequently proved unduly inflexible in dealing with new situations and new needs in the law. This has resulted in courts in recent years on occasion adopting a more flexible approach, rooted in the principle and the policy underlying the hearsay rule rather than the strictures of traditional exceptions. 19 This Court took such an approach in Ares v. Venner, [1970] S.C.R. 608… Through necessity and reliability, the court claimed that Lord Pearce’s tests in Myers could be met.76 Necessity is not met by mere unwillingness to testify, but requires more persuasive reasons. If an AGCO inspector is non-compellable for statutory reasons, the necessity requirement will likely be met.77 Necessity will not be met if the inspector is simply in a different jurisdiction.78 But if the inspector does not have independent recollection of the event, as in Wilcox, the necessity principle will be satisfied. The Nova Scotia Court of Appeal in R. v. F.(E.J.)79 dealt with the difficulty in recollection in the conviction of a negligent driver, where the brother of one of the victims claimed to spend the day of the accident with them. The brother was interviewed by the police, but did not remember the events at the time of the trial. Bateman J.A. held for the court that substantive admission for prior inconsistent statements were not at 74 R. v. Starr, [2000] 2 S.C.R. 144 at para. 198 [Starr]. 75 [2001] 3 S.C.R. 823 [Khan]. 76 Ibid. at para. 21. 77 The AGCO denied a request for an inspector to testify in Liquor Control Board of Ontario v. Lifford Wine Agencies Limited, [2005] O.J. No. 3042; 76 O.R. (3d) 401 (Ct. of Appeal for Ont.). 78 R. v. O’Connor (2003), 62 O.R. (3d) 263. 79 [2001] N.S.J. No. 434; 198 N.S.R. (2d) 228 (N.S. C.A) [EJF]. 22

issue as in the Supreme Court of Canada case R. v. B.(K.G.),80 because there is a distinction between conflicting information and a witness being unable to testify.81 Support for this was found in R. v. F.J.U,82 which emphasized the importance of cross-examination in context of facts and evidence. Bateman J.A. also cited Lamer C.J.C. in R. v. Smith,83 39 In my view, it would be neither sensible nor just to deprive the jury of this highly relevant evidence on the basis of an arcane rule against hearsay, founded on a lack of faith in the capacity of the trier of fact properly to evaluate evidence of a statement, made under circumstances which do not give rise to apprehensions about its reliability, simply because the declarant is unavailable for cross-examination. Where the criteria of necessity and reliability are satisfied, the lack of testing by cross-examination goes to weight, not admissibility, and a properly cautioned jury should be able to evaluate the evidence on that basis. Yet W. Gorman Prov. Ct. J. rejected in R. v. Brown84 Bateman J.A.’s position in EJF as too narrowly interpreted. The rules in KGB were specifically designed by the Supreme Court for when a witness can be cross-examined for previous statements using the rules in Khan and Smith. Both would agree that KGB broadened the use of prior statements so they could be used for the truth of its contents, and not just for the credibility of the witness, which leads to reliability. AGCO inspectors conduct many investigations at different establishments over periods of time, and are not likely to remember the details of every visit as mentioned above. If the inspector is not available the necessity principle will be met, and if they are available necessity will likely still be met and the documents admissible for their contents. Necessity and reliability may not appear clearly delineated in this respect, but this is how the principled 80 [1993] 1 S.C.R. 740; S.C.J. No. 22 [KGB]. 81 Supra note 79 at para. 45. 82 [1995] 3 S.C.R. 764; S.C.J. No. 82 at para. 38 [FJU]. 83 [1992] 2 S.C.R. 915; S.C.J. No. 74 [Smith]. 84 [2005] N.J. No. 132; 65 W.C.B. (2d) 201 at paras. 92-95 (Nfld. and Lab. Prov. Ct.). 23

approach has been understood by the courts. Weiler J.A. noted in R. v. G.N.D.85 that the limits of necessity would be dependent on the facts of each case and said, 46 In Khan (supra) Doherty J.A. identified another important consideration. Simply put, necessity and reliability are not completely compartmentalized considerations. Rather, they are part of the same continuum. Applying the Principled Approach to Common Law Does the principled approach replace the common law “pigeonholes” entirely, or do the lie on top of them? Courts struggled with this issue during the early years following Khan. In FJU at the Ontario Court of Appeal,86 the court considered an officer who took notes while interviewing a father on charges for sexual abuse of his daughter. No other records were taken while the father confessed, and the accused refused to make a written statement or sign anything. At trial, both father and daughter denied the abuse occurred. Although this case focuses on hearsay in the prior inconsistent statement context, it does shed light on the reliability requirements of police records. Houlden J.A. summarized the reforms to this exception in his dissent in FJU when it reached the Supreme Court, 29 The orthodox rule that prior inconsistent statements are not admissible for the truth of their contents was first stated in Wright v. Beckett (1833), 1 M. & Rob. 414, 174 E.R. 143… the orthodox rule was not challenged directly in this Court in any case prior to B. (K.G.). 30 In my view, the most serious of the hearsay dangers is the absence of contemporaneous cross examination. In B. (K.G.) the central question to be answered was whether the absence of contemporaneous cross-examination was a sufficient reason to exclude the statement from the jury as substantive evidence. I concluded that it was not. I also noted that law reformers on the bench, in legislatures, and on law reform commissions, have often sought to modify the orthodox rule. In particular, it has been abandoned in most jurisdictions in the United States. 31 In my analysis in B. (K.G.), I next proceeded to construct a reformed rule concerning prior inconsistent statements based on the principles set down in Khan, supra, and Smith, supra. These cases established that the traditional inflexible approach to the hearsay rule and its exceptions, which relied on fitting different types of evidence into rigid categories or pigeon-holes, was to be rejected in favour of an approach which would allow evidence to be admitted and used substantively when it is shown to 85 (1993), 81 C.C.C. (3d) 65, 62 O.A.C. 122 at paras. 45-46 (Ont. C.A.); leave to appeal to S.C.C. refused [1993] 2 S.C.R. 86 (1994), 90 C.C.C. (3d) 123 (Ont. C.A.); [1995] 3 S.C.R. 764. 24

be reliable and necessary… I concluded that when the reliability and necessity criteria were met, prior inconsistent statements of witnesses other than the accused are substantively admissible, provided that they would have been admissible as the witness's sole testimony. [emphasis added] Houlden J.A. also pointed out some of the problems with the common law exceptions, which seemed to suggest that the new principled approach could be sufficient in place of the common law,87 20 Briefly stated, Khan and Smith announced this Court's commitment to ensure that the rule against the admission of hearsay as evidence would be sufficiently flexible to adapt to new situations. The hearsay rule and its rigidly formulated exceptions had become a sometimes illogical and frequently confusing series of pigeon-hole categories. Khan and Smith examined the principles underlying the hearsay rule to ensure that new developments in the evidentiary treatment of hearsay would reflect those tenets. 21 …In Smith, supra, writing for a unanimous Court, I confirmed that Khan had expressed the new broadly applicable approach to assessing the admissibility of hearsay evidence (at p. 932): . . . Khan should not be understood as turning on its particular facts, but, instead, must be seen as a particular expression of the fundamental principles that underlie the hearsay rule and the exceptions to it. What is important, in my view, is the departure signalled by Khan from a view of hearsay characterized by a general prohibition on the reception of such evidence, subject to a limited number of defined categorical exceptions, and a movement towards an approach governed by the principles which underlie the rule and its exceptions alike. My decision in B. (K.G.), as well as this ruling, are applications of the Khan and Smith principles to the particular branch of the hearsay rule which traditionally prevented the substantive admission of witnesses' prior inconsistent statements. [emphasis added] The majority of the court in R. v. Hawkins however, seemed to indicate that the principled approach only modified existing common law exceptions, 66 In Khan and Smith, this Court signalled the beginning of a modern principled framework for defining exceptions to the hearsay rule. The Court rejected the traditional approach of the common law premised on rigid, categorical exceptions to the hearsay rule in favour of a more flexible approach which seeks to give effect to the underlying purposes of the rule. As Lamer C.J. said in Smith, at p. 932: ...Khan should be not be understood as turning on its particular facts, but, instead, must be seen as a particular expression of the fundamental principles that underlie the hearsay rule and the exceptions to it. What is important, in my view, is the departure signalled by Khan from a view of hearsay characterized by a general prohibition on the reception of such evidence, subject to a limited number of categorical exceptions, and a movement towards an approach governed by the principles which underlie the rule and its exceptions alike. With this Court's subsequent holdings in B. (K.G.), supra, and, most recently, in R. v. U. (F.J.), [1995] 3 S.C.R. 764, this new approach has become firmly entrenched in our jurisprudence. [emphasis added] 87 Ibid. at para. 20. 25

Hackett J. does point out in R. v. A.M.88 that there are limits to the flexibility afforded to the necessity principle. Finally, the issue of how to reconcile the principled approach with the common law was put to rest in Starr. L'Heureux-Dubé J. opposed using the principled approach to challenge existing hearsay exceptions in her dissent, as it would sacrifice certainty and predictability.89 But Iacobucci J. stated for the majority saying, 192 Up to the present, this Court's application of the principled approach to hearsay admissibility in practice has involved only expanding the scope of hearsay admissibility beyond the traditional exceptions. The focus of the Court's analysis and commentary has been upon the need to increase the flexibility of the existing exceptions, and not specifically upon the need to re-examine the exceptions themselves. However, this case requires that we examine an exception to the hearsay rule and determine its co-existence with the principled approach. As I will discuss further, to the extent that the various exceptions may conflict with the requirements of a principled analysis, it is the principled analysis that should prevail. [emphasis added] This suggests that the common law exceptions continue to remain, but add yet another step to the analysis of the business record exception.90 Although intended to increase flexibility, whether a more onerous process for admissibility accomplishes this is subject to debate. Other Requirements and Further Developments The ruling in Starr also indicated that a trial judge is restricted to surrounding circumstances when assessing reliability. Since the double hearsay issue raised in Woods remains the only major obstacle for admissibility with AGCO reports, this issue is worth exploring. The majority in Starr discussed a threshold for reliability that was distinct from ultimate reliability, focusing on circumstantial guarantees of trustworthiness such as lack of motive to lie or safeguards in place ensuring accuracy instead of whether the statement is actually true or not. The position of the court was that corroborating or conflicting evidence was 88 [2004] O.J. No. 3770 at paras. 80-81 (O.C.J.); aff’d [2006] O.J. No. 1663 (Ont. C.A.); [2008] 1 S.C.R. 569. 89 Supra note 74 at para. 22. 90 R. v. MacMillan, [2003] B.C.J. No. 3156 at para. 6 (B.C. S.C.). 26

not to be considered for the reliability threshold,91 but this issue has been subsequently overruled by R. v. Khelawon.92 The current position of the court is the previous statement of Doherty J.A. in R. v. Merz,93 51 The reliability inquiry, when made in the context of determining the admissibility of a hearsay statement, looks to those factors surrounding the making of the statement which tend to diminish the risks associated with the admission of out-of-court statements. Evidence from other witnesses which is consistent with the substance of an out-of-court statement is not a circumstance surrounding the making of that statement and cannot generally be seen as diminishing the risks associated with the admission of hearsay evidence. If, however, the circumstances of the taking of the statement provide sufficient indicia of reliability to admit the statement, then the evidence from the other witnesses can certainly be considered by the trier of fact in determining the ultimate reliability of the out-of-court statement. The exception to this is provided in FJU, where the similarities a confession and the out-of-court statement enhance the reliability of the latter. Czilbulka describes to prongs of reliability as currently used by the court: the first a circumstantial guarantee of trustworthiness making cross- examination unnecessary, the second was the presence of substitutes for the safeguards such as contemporaneous cross-examination.94 Although the case law will likely develop further, an AGCO report would have the circumstantial guarantee of trustworthiness in the possibility that the inspector was not available for cross-examination. 91 Ibid. at paras. 215-17. 92 [2006] S.C.J. No. 57 at paras. 93-100. 93 [1999] O.J. No. 4309 (Ont. C.A.). 94 R. v. Jeffrey, [2007] Nu.J. No. 10 at paras. 20-22 (Nu. Ct. J.). 27

Part 4 Conclusions The principled approach was intended to address the necessity and reliability that apparently underlined the common law and statutory exceptions to hearsay for business records. A report by the AGCO often represents the best evidence available about the serving practices of a licensed establishment. An AGCO inspector is disinterested from the civil or criminal action that proceeds from a establishment’s liability before any contemplation of litigation. They have peculiar knowledge from the vantage point of a sober third party that can attest to the practices of the establishment that is difficult to obtain without them, or by relying on their memory. An AGCO report meets the Wigmore criteria of an original entry made contemporaneously in the routine of business who was under a duty to record it and with no motive to misrepresent. The requirement of the declarant being deceased was removed by Ares. Additionally, it is in the ordinary course of business for an inspector to make such records, meeting any remaining statutory requirements. They are under a duty to make such records, and meet a threshold of reliability based on systemic checks of accuracy. AGCO reports do not have the double hearsay issue raised in Woods, and if they did there are some cases that still say it would be admissible, especially if in a Federal Court. If the inspector is not available for cross-examination this would increase the necessity of admitting the document, and any reliability issues would only affect the weight unless there was the unlikely situation of outside conflicting information speaking directly to the contents of the report. A supervisor or other official responsible for the maintenance of the records could be available for cross-examination to speak to the accuracy of reports. Thus, barring judicial discretion to exclude them on other grounds when the prejudicial impact significantly outweighs their probative value, the reports of an AGCO inspection should 28

meet the requirements of the principled approach and be admissible under the business record exception to the hearsay rule by either common law or statute. 29

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Admissibility of Alcohol and Gaming Commission of Ontario Reports

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Admissibility of Alcohol and Gaming Commission of Ontario Reports — Document Transcript