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Evidence - Official Documents. 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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