1. Exceptions to the hearsay rule – how to enter evidence without the witness Catherine Glaister, Crown Counsel, MAG, MOL – LSB Nicholas Adamson, Crown Counsel, MAG, MOECC – LSB Views expressed in this presentation are our own and are not intended to indicate the views of the Ministry of the Attorney General, the Ministry of Labour or the Ministry of the Environment and Climate Change

2. 2 Disclaimer Views expressed in this presentation are our own and are not intended to indicate the views of the Ministry of the Attorney General, the Ministry of Labour or the Ministry of the Environment and Climate Change

3. 3 Plan 1. What is hearsay? 2. Certificate evidence 3. Business records 4. Documents in possession 5. Statements that constitutes the offence 6. Statements admitted not for their truth 7. Admissions/confessions 8. Admissions by agents of a corporation – Strand Electric 9. Prior inconsistent statements 10. Past recollection recorded

4. 4 What is hearsay? No simple definition! But... Out-of-court statement introduced for the truth of its contents, and No contemporaneous cross-examination of the declarant R. v. Khelawon, [2006] 2 SCR 787

5. What is hearsay? Hearsay versus non-hearsay purpose Hearsay rule does not exclude out-of- court statements where the purpose is not to prove the truth of its contents E.g. if the fact that the statement was made is relevant 5

6. 6 Certificate evidence Statutory provisions that make a type of document admissible for the truth of its contents. Usually involves a certification by a specified official Usually admissible without further proof so long as appears to be appropriately certified – i.e. no witness necessary

7. 7 Certificate evidence Example: Environmental Protection Act, s. 175 175. (1)175. (1) In this section, “official document” means, … Official documents as evidence (2)(2) An official document, other than an official document mentioned in clause (1) (c) or (d), that purports to be signed by the Minister, the Director or an employee in the Ministry shall be received in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in the official document without proof of the signature or position of the person appearing to have signed the official document. R.S.O. 1990, c. E.19, s. 175 (2). Idem (3)(3) An official document mentioned in clause (1) (c), (d) or (e) that purports to be signed by an analyst shall be received in evidence in any proceeding as proof, in the absence of evidence to the contrary, of the facts stated in the official document without proof of the signature or position of the person appearing to have signed the official document. R.S.O. 1990, c. E.19, s. 175 (3).

8. 8 Certificate evidence Provincial Offences Act, s. 47(2) Evidence and burden of proof Evidence taken on another charge 47. … Certificate as evidence (2)(2) Where a certificate as to the content of an official record is, by any Act, made admissible in evidence as proof, in the absence of evidence to the contrary, the court may, for the purpose of deciding whether the defendant is the person referred to in the certificate, receive and base its decision upon information it considers credible or trustworthy in the circumstances of each case. R.S.O. 1990, c. P.33, s. 47 (2); 1993, c. 27, Sched.

9. 9 Business records Definitions 35. (1)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)(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 [1] made in the usual and ordinary course of any business and if [2] it was in the usual and ordinary course of such business to make such writing or record [3] 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).

10. 10 Business records Notice and production (3)(3) Subsection (2) does not apply unless the party tendering the writing or record has given at least seven days notice of the party’s intention to all other parties in the action, and any party to the action is entitled to obtain from the person who has possession thereof production for inspection of the writing or record within five days after giving notice to produce the same. R.S.O. 1990, c. E.23, s. 35 (3).

11. 11 Business records 1.1. In this Act, “action” includes an issue, matter, arbitration, reference, investigation, inquiry, a prosecution for an offence committed against a statute of Ontario or against a by-law or regulation made under any such statute and any other proceeding authorized or permitted to be tried, heard, had or taken by or before a court under the law of Ontario; (“action”)

12. 12 Business records Surrounding circumstances (4)(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).

13. 13 Business records Business records can include printouts of electronic records: o Regina v McMullen (1979), 25 OR (2d) 301, [1979] OJ No 4300 (CA); o Regina v Bell and Bruce (1982), 35 OR (2d) 164, [1982] OJ No 3116 (CA); o Tecoglas Inc. v Domglas Inc. (1985), 51 OR (2d) 196, [1985] OJ No 1228 (SC-HCJ)

14. 14 Business records Although a witness is required, unlike with certificate evidence, to provide evidence to prove that the document satisfies the requirements of s. 35, the provision an often be used to significantly reduce the number of witnesses required: o Ontario (Minister of Natural Resources) v. Metalore Resources Ltd., 2012 ONCJ 518, [2012] OJ No 3771, 72 CELR (3d) 52

15. 15 Documents in possession Where a document is in the possession of a party, the document will generally be admissible against the party as circumstantial evidence of the party’s knowledge of the contents, connection or complicity in the transactions to which they relate. o Ontario v Rothman’ Inc., 2011 ONSC 5356, [2011] OJ No 4163; aff’d 2013 ONCA 353, 115 OR (3d) 561 o R v Turlon (1989), 49 CCC (3d) 186, [1989] OJ No 524 (CA) Possession does not mean authorship

16. 16 Documents in possession Where the party is a corporation, it is not enough to show the document was in its files. The party seeking to rely on the document must show the document had come to the attention of a person from the company who had authority to deal with the matters to which the document relates. This can be inferred from the circumstances. o R v Armour Pharmaceutical Co., [2007] OJ No 5846 (SCJ) o Ontario v Rothmans Inc., 2011 ONSC 5356, [2011] OJ No 4163; aff’d 2013 ONCA 353, 115 OR (3d) 561

17. 17 Statements that constitutes the offence Where the statement is the offence, the statement is not hearsay Uttering threat Providing false information obstruction

18. Statements that constitutes the offence Crown does not need to prove voluntariness of statement that constitutes actus reus of the offence R. v. Stapleton, (1982) 66 CCC (2d) 231 (Ont CA) R. v. M.M., 2009 CanLII 50761 (ON SC) 18

19. 19 Statements admitted not for their truth Where statement is admitted for a “non hearsay purpose” Query: why is it relevant? Should be able to articulate the non- hearsay purpose

20. Statements admitted not for their truth Narrative Statements to explain knowledge Investigative hearsay Statements of identification Other examples? 20

21. 21 Admissions/confessions Admissions by defendant are admitted without a voir dire under an exception to the hearsay rule Statements made by defendant to a person not in authority is admissible as an admission against interest

22. Admissions/confessions Confession: statement by defendant to a person in authority Exception to the hearsay rule Crown required to prove voluntariness (unless the statement is the actus reus of the offence) 22

23. 23 Admissions by agents – Strand Electric Statements made by an agent within the scope of his/her authority to third persons during the continuance of the agency relationship are receivable against the principal as admissions, provided the admissions were made as part of the conversation or other communication which the agent was authorized to have with the third party. o R v Strand Electric Limited, [1969] 1 OR 1990, [1969] OJ No 1291 (CA) o R v Petro Canada, 2007 ONCJ 669, [2007] OJ No 5351 o R v Petro Canada (2008), 36 CELR 3d 284, [2008] OJ No 2390 (SCJ) o R v Dana Canada Corp., [2008] OJ No 4487 (CJ) o R v Syncrude, 2010 ABPC 123, [2010] AJ No 421

24. 24 Admissions by agents – Strand Electric The rule in Strand Electric is usually used to enter evidence against corporations – it is effectively the corporate version of admissions against interest In principle, the rule could also be used against individuals – for example, an admission made by an individual’s lawyer on instructions from the client.

25. 25 Prior inconsistent statements Cross-examination on prior inconsistent statement goes to credibility of the witness Prior inconsistent statement is not evidence at trial unless adopted by the witness Or (rarely) may be admitted under the principled exception to the hearsay rule

26. 26 Past recollection recorded A document – e.g. notes or a memorandum – is admissible as a past recollection recorded if four conditions are satisfied: 1. The past recollection must have been recorded in a reliable way. o The witness must have prepared the record personally or reviewed it for accuracy if someone else prepared it; and o the original record must be used if it is available. 2. The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’s mind to be vivid and likely accurate.

27. 27 Past recollection recorded 3. At the time the witness testifies, the witness must have no memory of the recorded events (otherwise can use them as notes to refresh memory). 4. The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record; in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded. R v Richardson, [2003] OJ No 3215 (CA) R v Fliss, 2002 SCC 16, [2002] 1 SCR 535

28. If all else fails … “There is only one thing in the world worse than being talked about, and that is not being talked about.” Oscar Wilde, The Picture of Dorian Gray 28

29. 29 Disclaimer Views expressed in this presentation are our own and are not intended to indicate the views of the Ministry of the Attorney General, the Ministry of Labour or the Ministry of the Environment and Climate Change