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Evidence - Hearsay - Public Documents Exception. Heegsma v. Hamilton (City)
In Heegsma v. Hamilton (City) (Ont CA, 2026) the Ontario Court of Appeal allowed an appeal, this brought against the dismissal of a JR Charter s.7 and s.15 "challenge the City of Hamilton’s by-law that prohibits installing tents and sleeping in public parks in the City and to challenge the City’s actions removing them from public parks in Hamilton during the relevant period" seeking declarations and damages.
The court considers the applicant's use of 'requests to admit' [R51 RCP], here where the hearsay 'public documents' exception was an issue:[53] Rule 51 of the Rules of Civil Procedure sets out the process for admissions based on requests to admit, including admissions regarding the authenticity of a document.
[54] Rule 51.02 states:51.02 (1) A party may at any time, by serving a request to admit (Form 51A), request any other party to admit, for the purposes of the proceeding only, the truth of a fact or the authenticity of a document. [55] Rule 51.03 requires a party on whom a request to admit is served to respond, failing which the party is deemed to admit the truth of the fact or the authenticity of the documents mentioned in the request.
[56] Rule 51 is not limited to actions but extends to all “proceedings”. Therefore, it is open to a party to seek to introduce facts or documents on an application through a request to admit: Ash v. Ontario (Chief Medical Officer), 2022 ONCA 849, 165 O.R. (3d) 342, at para. 8. Accordingly, it was an error for the application judge to rule that the appellants could not rely on the documents because they were not attached to an affidavit. There was no requirement that the documents be attached to an affidavit.
[57] However, the documents were not admissible for the truth of their contents without further analysis. In order to admit them for the truth of their contents, the appellants would have to establish that they meet one of the exceptions to the hearsay rule: Wunsche v. Wunsche (1994), 1994 CanLII 548 (ON CA), 18 O.R. (3d) 161 (C.A.), at p. 167.
[58] The appellants submit that they should have been admitted on the basis that they are public documents. The rationale for admitting public documents for the truth of their contents without further proof is “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; R. v. Caesar, 2016 ONCA 599, 339 C.C.C. (3d) 354, at para. 37. In order to be admitted as public documents, the party seeking their admission must demonstrate that the documents were:(a) Made by a public official;
(b) The public official made them in the discharge of his or her public duty or function;
(c) The document was made with the intention that it serve as a permanent record; and
(d) The document is available for public inspection.
P. (A)., at p. 390; Caesar, at para. 38. [59] This analysis must be conducted on a document-by-document basis: see e.g., Canpotex Ltd. v. Graham (1985), 5 C.P.C. (2d) 233 (Ont. H.C.); Ontario v. Rothmans et al., 2011 ONSC 5356, aff’d 2013 ONCA 353, 115 O.R. (3d) 561.
[60] In this case, in accordance with r. 51.01 of the Rules of Civil Procedure, the City admitted that some of the documents appended to the appellants’ requests to admit were true copies of the original documents. The next steps for admitting the documents should have been a document-by-document analysis of their admissibility as public documents. This is the analysis the application judge should have performed rather than striking the documents on the basis that they were not attached to an affidavit. He should have assessed whether the documents themselves or other evidence in the record would allow the court to determine whether they could be admitted as public documents.
[61] The timing of the appellants’ delivery of the documents in the application record should not have been an obstacle to their admissibility. By serving the requests to admit on the City, the appellants had provided some notice of their intention to rely on the documents. It appears that the City was nevertheless caught unawares because the appellants did not notify the City that they intended to seek to have the documents admitted for the truth of their content based on the public documents exception until they served their factum. Given that the documents could not be admitted for the truth of their contents without determining on a document-by-document basis whether they met the public documents exception, it would certainly have been preferable for the appellants to provide advance notice that they intended to rely on them for the truth of their contents on the basis of the public documents exception. The parties could have then convened a case conference with the application judge well in advance of the hearing to determine the best process for deciding on the admissibility of each document. Nevertheless, I am satisfied that the application judge erred in excluding these documents without considering whether some or all of them were admissible based on the public documents exception.
[62] As matters unfolded, when the City raised the issues at the case conference shortly before the hearing, if the application judge was satisfied that the City might suffer prejudice because of a lack of communication between the parties over the appellants’ intended use of the documents, he should have considered adjourning the hearing rather than striking the documents. I appreciate that case management judges are to be given wide latitude in managing the cases before them and in avoiding unnecessary delays and wasted court time. However, in this case, the application judge’s concern over prejudice to the City was based on the erroneous premise that the documents could not be admitted because they were not attached to an affidavit.
[63] The City submits that, even if the application judge erred in excluding the documents, this had no impact on the outcome of the application. In particular, the City points out that the appellants only referred to a handful of the documents at issue in their factum on the application and to the fact that the application judge said that he relied on some public documents in his reasons on the application.
[64] The problem with this submission is that it is not possible to identify what documents the application judge was referring to when he stated that there were public documents in the record that were admissible under the “traditional exception” to the hearsay rule. Moreover, given the overall lack of analysis in his reasons, it is not possible to know what, if any, impact his ruling striking out the three volumes had on the outcome.
[65] Having said this, it is an onerous task for a judge to rule on the admissibility of multiple documents if the appellants in fact only rely on a few of those documents. When this matter is remitted to the Superior Court, the appellants should identify the documents they seek to rely on as public documents to make the task of determining their admissibility less onerous. . R. v. Salvati
In R. v. Salvati (Ont CA, 2024) the Ontario Court of Appeal considered the admissibility of a photocopy of a bail recognizance, to which the defence objected on grounds that: "the uncertified photocopy was not admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5, and ... further that it was also inadmissible under the common law public or judicial documents exception to the hearsay rule":[25] At trial, the Crown sought to tender as evidence an uncertified photocopy of the bail recognizance. The defence objected that the uncertified photocopy was not admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5, and argued further that it was also inadmissible under the common law public or judicial documents exception to the hearsay rule, on the basis that a photocopy was not an “original record”. In response, the Crown submitted that the photocopy should be admitted under the principled exception to the hearsay rule. The trial judge agreed, and admitted the photocopy on this latter basis.
[26] On appeal, the appellant contends that the trial judge erred by relying on Crown counsel’s submissions to find that the necessity requirement of the principled exception had been established, and accordingly erred by admitting the document into evidence.
[27] The respondent agrees that in the circumstances of this case it was procedurally unfair for the trial judge to rely on the Crown’s submissions without giving the defence an opportunity to argue about whether the prosecution could rely on these submissions to establish necessity. However, the respondent argues that the photocopy was properly admissible on another legal basis that would not have required the Crown to establish necessity.
[28] We agree with the respondent that the photocopy was properly admissible under the common law public or judicial documents exception to the hearsay rule: see R. v. A.P. (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385, at p. 390; R. v. W.B.C. (2000), 2000 CanLII 5659 (ON CA), 142 C.C.C. (3d) 490, at para. 32.
[29] The appellant’s argument at trial was that the photocopy was not admissible under this exception because it was not the “original” document that had been signed by the Justice of the Peace. However, the argument that the public or judicial documents exception does not apply to copies was rejected by this court in W.B.C., where Weiler J.A. explained at para. 39 (underlining added):Another aspect of reliability is the need to establish the authenticity of the document. To be admissible at common law, the judicial document in question must be either (1) the original record; or (2) an exemplification of that record under the seal of the court: [R. v. Tatomir (1989), 1989 CanLII 7195 (AB CA), 51 C.C.C. (3d) 321 (Alta. C.A.)] at 327, citing Ewart, Documentary Evidence in Canada (1984), at 183, and Archbold: Criminal Pleading, Evidence and Practice, 43rd ed. (1988), at 1055. What is meant by “the original record”? Wigmore states that it has nothing to do with whether the writing in question was the "original" or "a copy". Rather, what is meant is that the written text itself must be offered as opposed to testimony about it. Wigmore concludes at vol. 4, pp. 547-9, para. 1232 of his treatise on Evidence:Thus the terms “copy” and “original” being purely relative to each other, have no inherent relation to the present rule, and the term “original” has no real significance in indicating which paper it is (of all possible papers) whose production is required by the rule.
In order to state the rule, then, in terms which will indicate in the rule itself what documents are included in its scope, it must be noted that the production required is the production of the document whose contents are to be proved in the state of the issues. Whether or not that document was written before or after another, was copied from another, or was itself used to copy from, is immaterial. [Emphasis in original.] [30] In the case at bar, there was evidence already in the trial record that circumstantially confirmed the authenticity of the photocopy. The Crown put into evidence certified copies of four Informations that showed that the appellant had indeed entered into a new bail order on August 28, 2018, which was the date shown on the photocopied recognizance. Moreover, photos taken by the police during their search of the house show what appears to be another copy of the same recognizance, seemingly identical except for a “copy” stamp, that was found in one of the basement bedrooms, along with a copy of the appellant’s health card.
[31] Importantly, the defence at trial did not make any substantive challenge to the authenticity of the photocopy, but simply argued that it was inadmissible under the public or judicial documents exception because it was not an “original”. The trial judge seems to have accepted this argument, and for this reason chose to instead admit the document under the principled exception, which required the Crown to establish both necessity and threshold reliability. In view of W.B.C., this latter step was unnecessary.
[32] The Crown submits that although the trial judge admitted the photocopy of the recognizance on the wrong legal basis, we should uphold the appellant’s conviction on the breach of recognizance charge by invoking the curative proviso. We do not find it necessary to resort to the curative proviso in these circumstances. Unlike the situation in W.B.C., the trial judge did not erroneously admit otherwise inadmissible evidence, but merely admitted evidence on one legal basis that was properly admissible for the same purpose on a slightly different legal basis. In our view, his decision to admit the photocopy into evidence for the truth of its contents was not a “wrong decision on a question of law” that would have required a new trial unless the curative proviso can be applied.
[33] Were it necessary to do so, however, we would have applied the curative proviso. The trial judge’s decision to admit the document under the principled exception without giving the appellant a fair opportunity to respond to the Crown’s position on the issue of necessity did not cause him any substantial wrong or miscarriage of justice, since the document was properly admissible under a traditional hearsay exception that did not require the Crown to establish necessity. . A.V. v. C.V.
In A.V. v. C.V. (Div Court, 2023) the Divisional Court, in a COVID child vaccination family law case, considered the public document exception to the hearsay rule and judicial notice, both in relation to government health publications:Evidence of Government Recommendations and Judicial Notice
[11] The first issue raised in both appeals is whether the motion judge erred in admitting into evidence government recommendations with respect to vaccination. That question has now been settled by the Court of Appeal in J.N. v. C.G. As George, J.A. stated in that case at para. 26, reports of public officials are admissible into evidence for the truth of their contents, pursuant to the public document exception to the hearsay rule: see also A.C. v. L.L., 2021 ONSC 6530, 159 O.R. (3d) 600, at para. 26; A.P. v. L.K., 2021 ONSC 150, 51 R.F.L. (8th) 334, at paras. 147-173. The reason for the exception is not only the inherent reliability and trustworthiness of public documents, but also to avoid the inconvenience of public officials having to be present in court to prove the documents. Section 25 of the Evidence Act, R.S.O. 1990, c. E.23 also provides that certain public documents as defined in that provision, including those published under the authority of the government of any “dominion, commonwealth, state…shall be admitted into evidence to prove the contents thereof.”
[12] Government of Canada publications addressing paediatric vaccination against COVID-19 fall squarely within the public document exception to the hearsay rule. In addition to being reliable, allowing these documents into evidence permits parties to rely on them without the unnecessary burden of calling a government representative: J.N. v. C.G., at para. 44.
[13] For the same reasons, judicial notice may be taken of the regulatory approval of paediatric vaccination against COVID-19. Judicial notice is an exception to the rule of formal proof that requires parties to present evidence to establish facts. It dispenses with the need to prove facts that are clearly uncontroversial or beyond reasonable dispute. The threshold is strict. The Supreme Court of Canada has stated that a court may take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy: R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48.
[14] While judicial notice generally is not taken of expert evidence, as set out in J.N. v. C.G., at para. 43, this general principle does not apply “where the ‘expert opinion’ in question is the approval of medical treatment by Health Canada, the national body tasked with determining that treatment’s safety and effectiveness.” As explained at paras. 44-45:It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge…going beyond that of the trier of fact”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. … Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness. [15] Indeed, both the public documents exception and judicial notice of these facts promote access to justice and the primary objective of the Family Law Rules, O. Reg. 114/99. They save the parties the time and expense of collecting expert evidence, which is a particularly challenging task on an interim motion. As stated in J.N. v. C.G., at para. 29, “it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination.” These principles allow the parties instead to focus on the central question: the best interests of the child. See A.P. v. L.K., at para. 186
[16] The admissibility of government recommendations into evidence is not determinative of the best interests of the child. However, it places the onus on the objecting party to show why the child should not be vaccinated: J.N. v. C.G., at para. 45. It remains open to the opposing party to file competing evidence. However, the competing evidence must be admissible. Opinion evidence is not admissible unless the person offering the opinion is qualified as an expert and the opinion relates to a matter within their expertise: see R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9 at pp. 20-25, see also R v. Sekhon, 2014 SCC 15, [2014] 1 S.C.R. 272 at para. 47. The proposed expert also must also be independent and unbiased: J.N. v. C.G., at paras. 12, 17. While in many cases, it will not be feasible or practical for a party to challenge the efficacy of the vaccine with competing expert evidence, an objecting party may, for example, submit a report from a treating family physician that provides evidence related to the circumstances of an individual child. This could include a child’s particular risk for contracting COVID-19.
[17] Another factor, which has arisen in the cases, is the child’s views and preferences. For example, in M.M. v. W.A.K., the motion judge declined to order vaccination where the child had clearly expressed her strong opposition to it. The motion judge considered the child, who was 12 years-old, to be mature and put significant weight on her views and preferences. However, a court must always carefully consider how much weight to give a child’s wishes in accordance with the factors set out in Decaen v. Decaen, 2013 ONCA 218, at para. 42. In J.N. v. C.G., the Court of Appeal found that the motion judge erred in giving the children’s views any weight, as the evidence did not support the finding that they had reached their own conclusions free from their mother’s influence.
[18] In short, government publications and recommendations may be admitted into evidence. Once admitted, regulatory approval of the vaccine places the onus on the objecting party to demonstrate that the child should not be vaccinated. The motion judge is to make this determination in the best interests of the child. . J.N. v. C.G.
In J.N. v. C.G. (Ont CA, 2023) the Court of Appeal considered the 'public documents' hearsay exception and Evidence Act (Ontario) s.25 ['Copies of statutes, etc.']:[24] ... Moreover, the motion judge failed to consider whether the appellant’s information was admissible under either Ontario’s Evidence Act, R.S.O. 1990, c. E.23, or as a public document exception to the hearsay rule, nor did he apply the test for internet reliability, which he cited authority for when addressing the respondent’s materials.
[25] Section 25 of the Evidence Act provides that:Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be published by or under the authority of the Parliament of the United Kingdom, or of the Imperial Government or by or under the authority of the government or of any legislative body of any dominion, commonwealth, state, province, colony, territory or possession with the Queen’s dominions, shall be admitted in evidence to prove the contents thereof. [26] Under the public document exception to the hearsay rule, reports of public officials are admissible for the truth of their contents: R. v. P.(A.) (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385 (Ont. C.A.); A.C. v. L.L., 2021 ONSC 6530. While this speaks only to admissibility, and not to what weight a judge must ultimately assign to it, it is important to understand why s. 25 exists and why there is a common-law exception, which speaks not only to the inherent reliability and trustworthiness of records and reports generated by public officials, but also to avoid the inconvenience of public officials having to be present in court to prove them. Consider this passage from P.(A.), where Laskin J.A. wrote, at pp. 389-390, that:At common law statements made in public documents are admissible as an exception to the rule against hearsay evidence. This exception is “founded upon the belief that public officers will perform their tasks properly, carefully, and honestly”: Sopinka et al. The Law of Evidence in Canada (1992), p. 231. [27] Rand J. explained the rationale in Finestone v. The Queen (1953), 1953 CanLII 81 (SCC), 107 C.C.C. 93 (S.C.C.), at p. 95:The grounds for this exception to the hearsay rule are the inconvenience of the ordinary modes of proof and the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions of today is beyond controversy [Emphasis added]. [28] Again, this does not compel a judge to give the evidence any weight, but given the purpose behind s. 25 and the public document exception, there is at least an obligation to explain why materials like those filed by the appellant are not trustworthy, which the motion judge’s reference to some of Canada’s historical misdeeds – all false equivalencies – fails to achieve.
[29] I would also note that there is no question that: 1) there is a COVID-19 pandemic; 2) this disease kills people, including children; and 3) the vaccines available to Canadians, including children ages 5 and older, have received regulatory approval. The problem, apart from the question of judicial notice, is that it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination.
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[44] Recall the two primary rationales for the public documents exception to the hearsay rule: the impracticality of traditional modes of proof, and the expectation that public servants perform their duties with a degree of diligence and care. It is not the subject of dispute among reasonable people that Health Canada has, in the area of safety and efficacy of medical treatment, “special knowledge … going beyond that of the trier of fact”: R. v. Marquard, 1993 CanLII 37 (SCC), [1993] 4 S.C.R. 223, at p. 243. Requiring that opinion to be tendered viva voce in every case via live, human experts would be – especially in family court – unnecessarily burdensome.
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