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Evidence - Hearsay - Basics (2). Democracy Watch v. Canada (Attorney General)
In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal by a public interest advocate's application that alleged that the "the process by which judges are appointed under section 96 and 101 of the Constitution Act, 1867" "is subject to political discretionary control, influence, and interference by the federal Minister of Justice and Cabinet".
The court dismisses aspects of the evidence advanced by the applicants - largely "newspaper articles, editorials, and opinion pieces published in newspapers or on newspapers’ websites" - here on fundamental principles of hearsay and opinion evidence law:[3] As concerns the evidentiary rulings, the Federal Court struck several paragraphs in the two affidavits of one of the appellants, Duff Conacher, as well as several exhibits to those affidavits. The Federal Court found that these paragraphs and exhibits were either inadmissible hearsay evidence or inadmissible opinion evidence that was not tendered by a qualified expert witness. The Federal Court also held that the opinion evidence that the appellants sought to admit was irrelevant to the issues before it since the Court was required to apply an objective test to ascertain whether judges and courts may be reasonably perceived as independent.
[4] Much of the evidence struck by the Federal Court consisted of newspaper articles, editorials, and opinion pieces published in newspapers or on newspapers’ websites. In addition, the Federal Court struck a letter from the Canadian Judicial Council (the CJC), a 2016 report from the International Commission of Jurists of Canada (the ICJC), an article written by a legal academic, and submissions from the President of the Canadian Bar Association (the CBA) and other associations regarding the judicial appointment process. The Federal Court found that the latter sort of submissions and the academic article, while inadmissible as opinion evidence, could nonetheless be referred to by the appellants as authorities in support of their submissions.
[5] Before us, the appellants submit that the Federal Court made palpable and overriding errors in finding some of the foregoing evidence inadmissible. More particularly, they submit that the Federal Court ought to have found that two of the newspaper articles and the letter from the CJC, which the Federal Court struck as inadmissible hearsay, met the twin criteria for admissibility of reliability and necessity, and that the Federal Court erred in concluding otherwise. They also submit that the Federal Court erred in finding some of the evidence to be inadmissible opinion evidence, arguing that, contrary to what the Federal Court found, some of the opinion pieces published in newspapers, the report from the ICJC, and the statement from the President of the CBA, that the Federal Court characterized as opinion evidence, should have been accepted as reliable and necessary factual evidence or as being similar to evidence that relied on in Libman v. Quebec (Attorney General), 1997 CanLII 326 (SCC), [1997] 3 S.C.R. 569, [1997] S.C.J. No. 85 (QL) [Libman], Harper v. Canada (Attorney General), 2004 SCC 33, [2004] 1 S.C.R. 827 [Harper], and R. v. Bryan, 2007 SCC 12, [2007] 1 S.C.R. 527 [Bryan].
[6] I disagree and, with one minor exception that is not germane to the outcome of this appeal, see no error in any of the Federal Court’s evidentiary rulings.
[7] Newspaper articles are generally inadmissible as hearsay and lack the necessary reliability to be admitted as evidence before a court: see e.g. Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 104, 292 A.C.W.S. (3d) 678 at para. 39; Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, [2021] 3 F.C.R. 294 at para. 150, rev’d (on other grounds) 2023 SCC 17, 481 D.L.R. (4th) 581. There is no basis for setting aside the Federal Court’s conclusion regarding the inadmissibility of the newspaper articles that the appellants allege should have been admitted.
[8] I agree with the appellants that the Federal Court mischaracterized Exhibit "“F”" to the first affidavit of Mr. Conacher as a newspaper article at paragraph 33 of its Reasons. In fact, as the Federal Court acknowledged at paragraph 32 of its Reasons, Exhibit "“F”" to the first affidavit of Mr. Conacher is a letter taken from the website of CJC. In that letter, the CJC reported, among other things, that a member of the judiciary acknowledged that she provided the names of potential judicial appointments to the office of the Minister of Justice in response to inquiries.
[9] Despite this mischaracterization, I agree with the Federal Court that Exhibit "“F”" to Mr. Conacher’s first affidavit includes inadmissible hearsay. The fact that a member of the judiciary acknowledged providing names of potential future appointments, as reported in the CJC’s letter, is hearsay. I see no reviewable error in the Federal Court’s conclusion that the appellants failed to establish the necessity of tendering the letter to establish the foregoing fact in light of their failure to tender any evidence regarding their inability to obtain direct evidence of the facts reported in the letter. In any event, the fact that consultations about appointments are undertaken by the Minister of Justice is not and was not denied by the respondent. Other such consultations are referenced in Exhibits "“C”", "“D”" and "“E”" to Mr. Conacher’s second affidavit that the Federal Court allowed to stand.
[10] Turning to the items struck as being opinion evidence that the appellants impugn, the opinion pieces that appeared in newspapers or on websites are not factual, and to the extent they set out factual statements, are inadmissible hearsay for the reasons already noted. The portions of the report from the ICJC that the appellants seek to rely on is hearsay to the extent it reports on undisclosed surveys completed by ICJC members. There was no evidence from the appellants to support the reliability or the necessity of the admission of these hearsay statements. The balance of the ICJC report either outlines the appointment process, which was already before the Federal Court through direct evidence from the respondent’s witness, or provides the opinion of the ICJC as to how the judicial appointment process could be modified. As for the letter from the President of the CBA, it sets out the opinion of that Association and is not factual.
[11] It is not disputed that these opinions were not offered by an expert and were not subject to cross-examination. As noted in Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772 at paragraph 43, where relevant, evidence about surveys of public opinion must be presented through a duly-qualified expert, who can be cross-examined about matters such as the survey design and conduct. Moreover, the expressions of opinion in the newspaper opinion pieces, the ICJC report, and the letter from the President of the CBA are distinguishable from the surveys and reports referred to in the Libman, Harper and Bryan cases. As the respondent rightly notes, the reports in those cases were either introduced through experts or were of an entirely different nature, such as the Royal Commission report that was before the Court in Bryan. None of the foregoing cases involved a party seeking to introduce opinion evidence through a lay witness, similar to what the appellants sought to tender in this case. . R. v. Schneider
In R. v. Schneider (SCC, 2022) the Supreme Court of Canada considers the hearsay exclusion rule and it's exceptions:[47] Hearsay evidence has three components: (1) a statement (or action) made outside of court by a declarant; (2) which a party seeks to adduce in court for the truth of its content; (3) without the ability of the other party to contemporaneously cross‑examine the declarant (Khelawon, at para. 35; Evans, at pp. 661-62; see also R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 924).
[48] Historically, the common law excluded hearsay evidence (Smith, at pp. 924-25; R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144, at para. 153; R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 13). Courts premised this exclusion on two primary concerns. First, hearsay evidence may be unreliable and does not afford parties the ability to test reliability by cross-examination (Khelawon, at para. 2; Mapara, at para. 14). Second, direct evidence is preferable and, thus, hearsay evidence may not be the best available (Mapara, at para. 14). Accordingly, as a general proposition, hearsay evidence was excluded as a safeguard against inaccurate fact finding.
[49] However, excluding hearsay in some circumstances impeded rather than assisted accurate fact finding (Khelawon, at para. 2; Mapara, at para. 14). Over time, courts created exceptions to the general exclusionary bar against hearsay (Mapara, at para. 14). Often referred to as pigeonholes, such exceptions developed where hearsay evidence arose in circumstances that lessened concerns of reliability or where hearsay evidence was the best available. These exceptions “became rigid” and formalism abounded (Mapara, at para. 14; Paciocco, Paciocco and Stuesser, at p. 151). The law of hearsay became a complex array of categories each defined by narrow rules, on occasion giving rise to arbitrary results and detracting from accurate fact finding.
[50] In response, this Court developed a principled approach to hearsay in R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531 (Mapara, at para. 12). This was intended to arrest the development of circumstance-specific exceptions to hearsay — pigeonholes — and “introduce a measure of flexibility into the hearsay rule” to avoid arbitrary outcomes (Mapara, at para. 15). The principled approach provides for hearsay evidence to be admitted on the basis of two factors: necessity and reliability (Khan, at pp. 540-42; Starr, at para. 153; Paciocco, Paciocco and Stuesser, at pp. 152-54; Vauclair and Desjardins, at pp. 1078-89).
[51] In Mapara, the Court provided that recognized exceptions remain presumptively operative (para. 15, as confirmed in Khelawon, at para. 42; R. v. Baldree, 2013 SCC 35, [2013] 2 S.C.R. 520, at para. 34). However, litigants can challenge an exception on the basis that it is not “supported by indicia of necessity and reliability” (Mapara, at para. 15).
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[58] A trial judge’s determination that evidence is hearsay but falls within an exception from the general exclusionary rule is a question of law, reviewable on a standard of correctness.
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