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
July 4-6, 2010

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?
Introduction

Part 1 - Background
Common Law Exceptions to Hearsay
Statutory Exceptions
Part 2 - Interpretation
A Broad or Narrow Interpretation of Business Records
Importance of First-Hand Knowledge
Admissibility of Double Hearsay
Inconsistencies in the Business Record Exception
Overview
Part 3 – New Requirements
The Need for a Principled Approach
Applying the Principled Approach to Common Law
Other Requirements and Further Developments
Part 4 - Conclusions

Part 1 - Background

Purpose of the hearsay rule was to ensure the reliability of the evidence tendered
Wigmore criteria:
(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
Hearsay exceptions in Sugden v. Lord St. Leonards[1876]
1) difficult to obtain other evidence, 2)declarant must be disinterested, 3)declaration must be made before dispute or litigation, 4) declarant must have had peculiar means of knowledge not possessed in ordinary cases
Common Law Exceptions to Hearsay

Myers v. Director of Public Prosecutions
Aynsley v. Toronto General Hospital
Ares v. Venner
Records made contemporaneously by someone having personal knowledge of the matters 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 [para. 26]
Setak Computer Services Corp. Ltd. v. Burroughs Business Machines Ltd.
Business Records Exception

Canada Evidence Act
s. 30. (1) Business records to be admitted in evidence
30. (10) Evidence inadmissible under this section
Ontario Evidence Act
35. (1), (2) Business records
“it was in the usual and ordinary course of such business to make such writing or record”
Statutory Exceptions

Part 2 - Interpretation

Setakat paras. 31-33:
s. 36 is cast in very broad terms so as to encompass practically every type of writing utilized in connection with any business…. the section itself seems to have been drafted in very broad terms.
Section 10 of the Interpretation Act
Woods v. Elias at paras. 4, 17, 19
…The use of the word "business" has in my view a great deal of significance…. The floodgates would be open....
Rejects Setakand Ares
ejusdem generis rule
A Broad or Narrow Interpretation of Business Records

C.A.S., Halifax v. H. (L.T.) at paras. 24-32
third party statements gives too broad an interpretation to the business record hearsay exemption
not under a duty in the normal course of business to make a report should be excluded
Canada v. Obodzinskyat para. 36-37
made by civil servants in the course of duty
based on personal observation and recollection
Did not discuss interviews with candidates or disclosed their contents
personal knowledge of the information contained in the report
Importance of First-Hand Knowledge

Catholic Children's Aid Society of Toronto v. J.L.
personal knowledge of the officer recording it
received from another officer acting under a duty to report
Children's Aid Society of London and Middlesex v. S.K.
informant group has no comparable duty to accurately report the information
R. c. Berniquez
Severed link in note provided to officer
First-Hand Knowledge (con’t)

Canada Evidence Act
S. 30. (6) Court may examine record and hear evidence
R. v. Martin at paras. 36-38, 48
Parliament intended to exclude double hearsay
weight is an issue to be addressed after the document is accepted as evidence
Ontario Evidence Act
S. 35.(4) Surrounding circumstances
Aynsleyat para. 12
while a document is admissible, the question of weight is a question for the Judge to decide
the Judge will apply all of those old rules of evidence
Canada v. Oberlander
Federal Court Act, S. 54(2) Admissibility of evidence
Admissibility of Double Hearsay

Lack of clear guidelines in Ares
Requirement in Woods to be present for cross-examination
R. v. Sunila
R. v. Grimbaat para. 16
S. 30 has removed that requirement of personal knowledge
R. v. Anthes Business Forms Ltd.
2-Part test in R. v. Penno:
establishing nature of the recording system,
confirming the accuracy of the information recorded
Inconsistencies in the Business Record Exception

R. v. Ross
Distinguishes Anthesat paras. 52-54
who prepared thedocuments?
not admitted for their contents, but for practice of recordkeeping
Criticizes Pennoat paras. 58-64
2-part test not a necessity
Hearsay already contemplate in the Act
No need for “maker” to have personal knowlege
R. v. Madsen
Personal observation or knowledge insufficient
lacked Wigmore’s principles of necessity and circumstantial guarantee of trustworthiness
More Inconsistencies

R. v. Monkhouserejected requirement in R. v. Madsen
Omand v. Alberta Milling Co.
J.H. Ashdown Hardware Co. v. Singer
Canada Atlantic Railway v. Moxley
Common Law requirement maintained in R. v. Laverty
not maintained in R.v. Wilcox
document was evaluated on merits of trustworthiness
Statutory exclusion rules not applied in R. v. Heyden
InSunilacommon law approach was used where the statutory approach was unsuccessful
Tecoglas Inc. v. Domglas Inc. and R. v. M.P. [2000]
But see Exhibitors Inc. v. Allan
Still More Inconsistencies

Part 3 – New Requirements

R. v. Starr, [2000] Iacobucci J. called a need for an “intellectual coherence of the law of hearsay.”
R. v. Khan, [2001] SCC developed the “principled approach”
necessity and reliability
Could meet test in Myers
How is Necessity Defined?
inspector is non-compellable for statutory reasons
inspector is in a different jurisdiction
inspector does not have independent recollection of the event
The Need for a Principled Approach

R. v. G.N.D.
Limits of necessity dependent on each case
necessity and reliability are not completely compartmentalized considerations
part of the same continuum
Still Fact Specific

R. v. F.J.U at para. 31
traditional inflexible approach rejected in favour of allowing evidence when reliable and necessary
R. v. Hawkins at para. 66
give effect to the underlying purposes of the rule
R. v. Starr
L'Heureux-Dubé J (dissent) at para. 22
challenge existing hearsay exceptions would sacrifice certainty and predictability
Iacobucci J. (majority) at para. 192
to extent that various exceptions conflict with requirements of principled analysis, it is principled analysis that should prevail
Applying the Principled Approach to Common Law

Surrounding circumstances in Starr
How do we deal with double-hearsay (Woods)
Threshold vs. Ultimate reliability overturned in R. v. Khelawon
R. v. Merzat para. 51
look to factors surrounding the making of the statement for reliability
Reliability test in Catholic Children's Aid Society of Toronto v. J.L.
residual discretion to exclude evidence
Other Requirements and Further Developments

AGCO report represents best evidence available about the serving practices of a licensed establishment.
AGCO inspector disinterested from the civil or criminal action that proceeds from a establishment’s liability
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
does not have the double hearsay issues raised in Woods
Higher necessity if the inspector is not available for cross-examination for valid reason
Part 4 - Conclusions

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