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Evidence - Hearsay - Public Documents Exception

. 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.

....

[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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Last modified: 15-05-24
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