Evidence - Hearsay - Judicial Records
R v Caesar (Ont CA, 2016)
In this case the Court of Appeal engages in an extended and very useful consideration of the use of judicial records in subsequent proceedings under both statutory (Canada Evidence Act) and common law exceptions to the hearsay rule, focussing on the distinction between proof of their authenticity versus proof of their content:
 On appeal, the appellant submits that the trial judge erred in moving directly to a principled necessity/reliability analysis of the hearsay issue, without first considering whether the evidence was otherwise admissible based on an existing exception to the hearsay rule, as contemplated by the Supreme Court of Canada in R. v. Starr, 2000 SCC 40 (CanLII),  2 S.C.R. 144. Appellant’s counsel puts forward three exceptions upon which he argues that the evidence of the guilty plea or of the guilty plea and its underlying facts were admissible by way of proving the original indictment and/or the transcript of the guilty plea:
(a) as an original court document, upon which the court could take judicial notice (or, to put it more aptly, under the principles relating to the admission of public documents or judicial records); I agree that evidence of the guilty plea alone, as recorded on the original indictment, may be proved at least under the public documents or judicial records category and that, in the circumstances, the appellant ought to have been permitted to prove the fact that Mr. Anderson pled guilty by putting the information on the back of the original indictment to that effect into evidence. However, I am not persuaded that any of the foregoing exceptions, by themselves, render the transcript containing the rolled-up evidence of Mr. Anderson’s guilty plea and the facts underlying it, admissible for the truth of those facts.
(b) through s. 23 of the Canada Evidence Act, R.S.C. 1985, c. C-5, as “evidence of any proceeding”; or
(c) under the common law doctrine of exemplifications.
The Relevant Principles
 I say this because, in my view, the exceptions now relied upon by the appellant are designed primarily to facilitate proof of the court documents and records of proceedings themselves without the need to call the authors or creators of those documents or records to establish their authenticity (proof of authenticity), but they do not automatically render the hearsay contents of such documents or records admissible for the truth of their contents if they are not otherwise admissible for that purpose (proof for purposes of substantive admissibility). Whether the contents of the documents or records are admissible for their truth will depend upon whether it was within the scope of the recorder’s duty to confirm their truth. Here, proof of Mr. Anderson’s guilty plea, as verified on the back of the original indictment, meets the latter test. Proof of the underlying facts on which that plea was based, as reflected in the transcript, does not, however.
 I turn to the jurisprudence to illustrate this analysis.
 The appellant’s first submission is that the indictment and/or the transcript of the guilty plea proceedings, and their contents are admissible because a court “may take judicial notice of its own process”. While that may be so – see, for example, R. v. Hunt (1986), 18 O.A.C. 78 (C.A.); R v. Bailey 2014 ONSC 5477 (CanLII).  O.J. No. 4420; and Craven v. Smith (1869) L.R. 4 Ex. 146 – the power of the court to look at its own documents and take notice of their contents only takes the inquiry so far. By itself, it does not answer the question whether the contents of the documents or records are admissible for the truth of their contents, and I do not take those authorities to mean that they are in all circumstances.
 In determining the answer to the substantive admissibility question, I think it is more helpful, and more accurate, to reframe the inquiry and to examine the admissibility of the indictment and transcript, and their contents, through the prism of the common law principles relating to the admissibility of public documents or records of court proceedings (as Weiler J.A. preferred to call similar records and documents, in R. v. C. (W.B.) (2000), 2000 CanLII 5659 (ON CA), 130 O.A.C. 1 (C.A.), at para. 30). Such records are admissible as public documents without further proof “because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them”: R. v. P. (A.) (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385 (Ont. C.A.), at p. 390: C. (W.B.), at paras. 30-31.
 To be admissible in this sense, the documents or records must meet the four criteria necessary for the admissibility of a public document or judicial record:
(a) the document must have been made by a public official, that is a person on whom a duty had been imposed by the public;See P.(A.), at p. 390; C. (W.B.), at para. 32.
(b) the public official must have made the document in the discharge of a public duty or function;
(c) the document must have been made with the intention that it serve as a permanent record, and
(d) the document must be available for public inspection.
 However, as noted above, the admissibility of the contents of the records for substantive purposes is driven by the scope of the duty of the public or court official making the record in question. If it is the recorder’s duty to validate the truth of the contents, they will be admissible for that purpose (if otherwise relevant), but if it is not within the scope of the recorder’s duty to do so, they will not be. Weiler J.A. explained this principle in C. (W.B.), at paras. 33-34:
Like a public document, the admissibility of a judicial proceeding is limited to the precise scope of the recorder’s duty. Ewart, in Documentary Evidence in Canada, Carswell, 1984, at 153 terms this a strict requirement. He says: The appeal can be resolved on the application of the foregoing principles, but the appellant seeks to rely as well on two additional avenues of proof: s. 23(1) of the Canada Evidence Act and the common law doctrine of exemplification. I accept that evidence of a court proceeding or record may be given in another proceeding by an exemplification or certified copy of the proceeding or record, under s. 23(1) (provided notice is given), or under the common law doctrine of exemplification (even without notice in appropriate circumstances): C. (W.B.); R. v. Tatomir, 1989 ABCA 233 (CanLII), 69 Alta. L.R. (2d) 305, leave to appeal to the Supreme Court of Canada refused (1990), 53 C.C.C. (3d) ii; Bailey; R. v. John, 2015 ONSC 2040 (CanLII),  O.J. No. 1719. Like the admissibility of public documents and judicial records, however, and absent the recorder’s duty to validate the truth of the contents, these avenues of proof are just that, in my view – procedural mechanisms whereby evidence of the court proceeding or record may be proved, without having to provide proof of the authenticity of the document by calling the court officer or stenographer who made the record. In other words, they provide a shortcut to proof of authenticity. However, they do not render the hearsay content of court proceedings or records admissible for the truth of their contents where they would not otherwise be admissible for that purpose in the circumstances.
In all cases, it will be necessary to determine the precise scope of the recorder’s duty, since that will delimit the admissibility of the contents of the document he prepared. For example, since duty determines admissibility, baptismal records are admissible to prove the fact, date, and place of the baptism, but any statements therein concerning the age of the child will not be admissible. Similarly death certificates are admissible to prove the fact, time, and place, but not the cause of death.… The court reporter [has] a duty to transcribe what was said. That is the extent of the admissibility of the transcript. The transcript would not answer the question of whether what was said was true. …
 This view is confirmed by s. 36 of the Canada Evidence Act:
This Part shall be deemed to be in addition to and not in derogation of any powers of proving documents given by any existing Act, or existing law. [Emphasis added.] The same theme is reflected in the following observation made by J. Douglas Ewart, Michael Lomer and Jeff Casey, in Documentary Evidence in Canada (Agincourt, ON: Carswell Legal Publications, 1984), at p. 183, with respect to the common law doctrine of exemplification:
At common law, judicial documents must be proved by the production of the original record or an exemplification under the seal of the court to which the record belongs. No notice is required. [Emphasis added.] The view I take is also confirmed by the manner in which resort to s. 23 of the Canada Evidence Act has been treated in the jurisprudence.
 For example, in R. v. Duong (1998), 1996 CanLII 8000 (ON SC), 29 O.R. (3d) 161, where the accused was convicted of being an accessory-after-the-fact to second degree murder, this Court had to consider whether the guilty plea of the principal who committed the crime was admissible against the accused at the accused’s trial. The Court held that it was. The Crown sought to prove the principal’s conviction by way of a certified copy of the indictment recording the plea through s. 23 of the Canada Evidence Act. However, it was only after concluding that the conviction was otherwise substantively admissible against the accused – as some proof that the crime of which he was alleged to have been accessory after the fact, had been committed – that Doherty J.A. turned to consider the method by which the conviction could be proved, namely through resort to s. 23 (para. 47).
 R. v. Byrnes, 2012 ONSC 2090 (CanLII),  O.J. No. 1454, is also illustrative. In that case, the accused was charged with the attempted murder of his ex-wife and with breaking and entering her home with intent to commit an indictable offence. The Crown sought to introduce the transcript of a prior family law proceeding between the two, relying on the submission that s. 23 of the Canada Evidence Act provided a statutory exception to the hearsay rule. Drawing on the passage from this Court’s decision in C. (W.B.) referred to above, R.D. Gordon J. declined to admit the evidence on that basis, although he did admit portions that did not infringe the hearsay rule. Responding to the Crown’s statutory exception argument, he said, at para. 15:
I do not necessarily agree. As stated in R. v. W.B.C. 2000 CanLII 5659 (ON CA),  O.J. No. 397, the admissibility of a transcript of a judicial proceeding is limited to the precise scope of the recorder’s duty. In a case such as the one before me, the court reporter’s duty was to transcribe what was said and nothing more. Accordingly, the transcript can be tendered under the Canada Evidence Act as evidence of what was said at the hearing, but not for the purpose of establishing the truth of what was said. Admissibility of the transcript will therefore require a consideration of whether it is relevant, and whether it contains evidence that might otherwise be inadmissible as hearsay. [Emphasis added.] Gordon J. went on to analyse the purposes for which the statements contained in the transcript were being entered: if not for the truth of their contents, they were admissible (no hearsay issue); if as his own admission, they were admissible against the accused (as was the case in C. (W.B.)); but if for the truth of their contents or for reasons that were otherwise inadmissible, they were not admitted. See also R. v. McDonald, 2013 BCSC 1977 (CanLII), at paras. 66-67.
 As the tenor of these decisions indicates, the transcripts of a court proceeding – including the transcript of a guilty plea – may be admissible to prove what was actually said or what actually happened at an earlier proceeding, but they are not rendered admissible for the truth of their contents simply because they are a judicial record or are tendered under s. 23 of the Canada Evidence Act or under the common law doctrine of exemplification. There may be circumstances where they are admissible for the truth of their contents, but they will not be admissible for that purpose unless it was the recorder’s duty to validate the truth of their contents or unless they are otherwise admissible under the principled exception to the hearsay rule and the prejudice of their admission does not outweigh their probative value.
 The underlying basis upon which the records in question in the authorities relied on by the appellant, and other authorities, were admitted confirms this view. In C. (W.B.), the accused’s guilty plea as reflected in the transcript of an earlier sexual assault matter was admitted into evidence against him in a subsequent sexual assault trial as an admission against interest and as similar fact evidence, but the transcript would not otherwise have been admissible for the truth of its contents. In Tatomir, the record was a prior driving prohibition order in subsequent proceedings involving a charge of driving while prohibited. It was the duty of the maker of the order to ensure the validity of the prohibition order and its terms. In Bailey and John, the accused faced charges of “failing to comply” (breach of recognizance and breach of probation, respectively), and what the Crown sought to introduce were certified copies of the relevant informations, indictments, bail orders and probation orders. Again, it was the duty of the maker of the court records to ensure the validity of their contents.
 There was no issue in any of these cases about whether the evidence contained in the records was substantively admissible. It was. The issue was whether it could be proved on one of the foregoing bases.
 In short, where records of judicial proceedings are sought to be admitted into evidence to prove the truth of their contents, two questions must be addressed: (i) do the records meet the criteria for admission without further proof of authenticity through one of the avenues advanced by the appellant; and (ii) if so, are their contents substantively admissible either because it was the recorder’s duty to verify their validity or because they are otherwise admissible through the principled exception, or some other exception, to the hearsay rule?
 Here, there is little dispute that the original indictment and the transcript of the guilty plea proceedings could themselves be proved either through the principles relating to the admissibility of public documents/judicial proceedings or through the common law mechanism of exemplification (proof through s. 23 of the Canada Evidence Act is problematic because of the absence of notice). However, as the foregoing review demonstrates, the substantive admissibility of their contents is another matter.