Exceptions to the hearsay rule – how to enter
evidence without the witness
Catherine Glaister, Crown Counsel, MAG, MOL – LSB
Nicholas Adamson, Crown Counsel, MAG, MOECC – LSB
Views expressed in this presentation are our own and are not intended to indicate the views of the Ministry
of the Attorney General, the Ministry of Labour or the Ministry of the Environment and Climate Change
Disclaimer
Views expressed in this presentation are
our own and are not intended to indicate
the views of the Ministry of the Attorney
General, the Ministry of Labour or the
Ministry of the Environment and Climate
Change
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Plan
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What is hearsay?
Certificate evidence
Business records
Documents in possession
Statements that constitutes the offence
Statements admitted not for their truth
Admissions/confessions
Admissions by agents of a corporation – Strand Electric
Prior inconsistent statements
Past recollection recorded
What is hearsay?
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No simple definition! But . . .
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Out-of-court statement introduced for the truth of its
contents, and
No contemporaneous cross-examination of the
declarant
R. v. Khelawon, [2006] 2 SCR 787
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What is hearsay?
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Hearsay versus non-hearsay purpose
Hearsay rule does not exclude out-ofcourt statements where the purpose is not
to prove the truth of its contents
E.g. if the fact that the statement was
made is relevant
Certificate evidence
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Statutory provisions that make a type of
document admissible for the truth of its
contents.
Usually involves a certification by a
specified official
Usually admissible without further proof
so long as appears to be appropriately
certified – i.e. no witness necessary
Certificate evidence
Example: Environmental Protection Act, s. 175
175. (1) In this section,
“official document” means,
…
Official documents as evidence
(2) An official document, other than an official document mentioned in clause (1) (c) or (d), that
purports to be signed by the Minister, the Director or an employee in the Ministry shall be
received in evidence in any proceeding as proof, in the absence of evidence to the
contrary, of the facts stated in the official document without proof of the signature or
position of the person appearing to have signed the official document. R.S.O. 1990, c. E.19,
s. 175 (2).
Idem
(3) An official document mentioned in clause (1) (c), (d) or (e) that purports to be signed by an analyst
shall be received in evidence in any proceeding as proof, in the absence of evidence to the
contrary, of the facts stated in the official document without proof of the signature or
position of the person appearing to have signed the official document. R.S.O. 1990, c. E.19,
s. 175 (3).
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Certificate evidence
Provincial Offences Act, s. 47(2)
Evidence and burden of proof
Evidence taken on another charge
47.
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Certificate as evidence
(2) Where a certificate as to the content of an official record is, by any Act, made
admissible in evidence as proof, in the absence of evidence to the contrary, the court
may, for the purpose of deciding whether the defendant is the person referred to in
the certificate, receive and base its decision upon information it considers credible or
trustworthy in the circumstances of each case. R.S.O. 1990, c. P.33, s. 47 (2); 1993,
c. 27, Sched.
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Business records
Business records
Definitions
35. (1) In this section,
“business” includes every kind of business, profession, occupation, calling, operation or
activity, whether carried on for profit or otherwise; (“entreprise”)
“record” includes any information that is recorded or stored by means of any device.
(“document”) R.S.O. 1990, c. E.23, s. 35 (1).
Where business records admissible
(2) Any writing or record made of any act, transaction, occurrence or event is admissible
as evidence of such act, transaction, occurrence or event if [1] made in the usual
and ordinary course of any business and if [2] it was in the usual and ordinary
course of such business to make such writing or record [3] at the time of such
act, transaction, occurrence or event or within a reasonable time thereafter.
R.S.O. 1990, c. E.23, s. 35 (2).
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Business records
Notice and production
(3) Subsection (2) does not apply unless the party tendering the writing or
record has given at least seven days notice of the party’s intention to all
other parties in the action, and any party to the action is entitled to obtain
from the person who has possession thereof production for inspection of the
writing or record within five days after giving notice to produce the same.
R.S.O. 1990, c. E.23, s. 35 (3).
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Business records
1. In this Act,
“action” includes an issue, matter, arbitration, reference, investigation,
inquiry, a prosecution for an offence committed against a statute of
Ontario or against a by-law or regulation made under any such statute
and any other proceeding authorized or permitted to be tried, heard, had or
taken by or before a court under the law of Ontario; (“action”)
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Business records
Surrounding circumstances
(4) The circumstances of the making of such a writing or record,
including lack of personal knowledge by the maker, may be shown
to affect its weight, but such circumstances do not affect its
admissibility. R.S.O. 1990, c. E.23, s. 35 (4).
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Business records
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Business records can include printouts of electronic
records:
o
Regina v McMullen (1979), 25 OR (2d) 301, [1979]
OJ No 4300 (CA);
o
Regina v Bell and Bruce (1982), 35 OR (2d) 164,
[1982] OJ No 3116 (CA);
o
Tecoglas Inc. v Domglas Inc. (1985), 51 OR (2d)
196, [1985] OJ No 1228 (SC-HCJ)
Business records
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Although a witness is required, unlike with certificate
evidence, to provide evidence to prove that the
document satisfies the requirements of s. 35, the
provision an often be used to significantly reduce the
number of witnesses required:
o Ontario (Minister of Natural Resources) v. Metalore
Resources Ltd., 2012 ONCJ 518, [2012] OJ No 3771,
72 CELR (3d) 52
Documents in possession
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Where a document is in the possession of a party, the
document will generally be admissible against the party
as circumstantial evidence of the party’s knowledge of
the contents, connection or complicity in the transactions
to which they relate.
o Ontario v Rothman’ Inc., 2011 ONSC 5356, [2011] OJ
No 4163; aff’d 2013 ONCA 353, 115 OR (3d) 561
o R v Turlon (1989), 49 CCC (3d) 186, [1989] OJ No
524 (CA)
Possession does not mean authorship
Documents in possession
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Where the party is a corporation, it is not enough to
show the document was in its files. The party seeking
to rely on the document must show the document had
come to the attention of a person from the company
who had authority to deal with the matters to which the
document relates. This can be inferred from the
circumstances.
o R v Armour Pharmaceutical Co., [2007] OJ No 5846
(SCJ)
o Ontario v Rothmans Inc., 2011 ONSC 5356, [2011]
OJ No 4163; aff’d 2013 ONCA 353, 115 OR (3d) 561
Statements that constitutes the offence
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Where the statement is the offence, the
statement is not hearsay
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Uttering threat
Providing false information
obstruction
Statements that constitutes the offence
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Crown does not need to prove
voluntariness of statement that constitutes
actus reus of the offence
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R. v. Stapleton, (1982) 66 CCC (2d) 231 (Ont CA)
R. v. M.M., 2009 CanLII 50761 (ON SC)
Statements admitted not for their truth
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Where statement is admitted for a “non
hearsay purpose”
Query: why is it relevant?
Should be able to articulate the nonhearsay purpose
Statements admitted not for their truth
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Narrative
Statements to explain knowledge
Investigative hearsay
Statements of identification
Other examples?
Admissions/confessions
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Admissions by defendant are admitted
without a voir dire under an exception to
the hearsay rule
Statements made by defendant to a
person not in authority is admissible as an
admission against interest
Admissions/confessions
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Confession: statement by defendant to a
person in authority
Exception to the hearsay rule
Crown required to prove voluntariness
(unless the statement is the actus reus of
the offence)
Admissions by agents – Strand Electric
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Statements made by an agent within the scope of his/her authority
to third persons during the continuance of the agency relationship
are receivable against the principal as admissions, provided the
admissions were made as part of the conversation or other
communication which the agent was authorized to have with the
third party.
o R v Strand Electric Limited, [1969] 1 OR 1990, [1969] OJ No
1291 (CA)
o R v Petro Canada, 2007 ONCJ 669, [2007] OJ No 5351
o R v Petro Canada (2008), 36 CELR 3d 284, [2008] OJ No 2390
(SCJ)
o R v Dana Canada Corp., [2008] OJ No 4487 (CJ)
o R v Syncrude, 2010 ABPC 123, [2010] AJ No 421
Admissions by agents – Strand Electric
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The rule in Strand Electric is usually used
to enter evidence against corporations – it
is effectively the corporate version of
admissions against interest
In principle, the rule could also be used
against individuals – for example, an
admission made by an individual’s lawyer
on instructions from the client.
Prior inconsistent statements
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Cross-examination on prior inconsistent
statement goes to credibility of the
witness
Prior inconsistent statement is not
evidence at trial unless adopted by the
witness
Or (rarely) may be admitted under the
principled exception to the hearsay rule
Past recollection recorded
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A document – e.g. notes or a memorandum – is admissible as a past
recollection recorded if four conditions are satisfied:
1.
The past recollection must have been recorded in a reliable
way.
o The witness must have prepared the record personally or
reviewed it for accuracy if someone else prepared it; and
o the original record must be used if it is available.
2.
The record must have been made or reviewed within a
reasonable time, while the event was sufficiently fresh in the
witness’s mind to be vivid and likely accurate.
Past recollection recorded
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At the time the witness testifies, the witness must have no
memory of the recorded events (otherwise can use them as
notes to refresh memory).
The witness, although having no memory of the recorded
events, must vouch for the accuracy of the assertions in the
record; in other words, the witness must be able to say that he
or she was being truthful at the time the assertions were
recorded.
R v Richardson, [2003] OJ No 3215 (CA)
R v Fliss, 2002 SCC 16, [2002] 1 SCR 535
If all else fails …
“There is only one thing in the world worse
than being talked about, and that is not
being talked about.”
Oscar Wilde, The Picture of Dorian Gray
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Disclaimer
Views expressed in this presentation are
our own and are not intended to indicate
the views of the Ministry of the Attorney
General, the Ministry of Labour or the
Ministry of the Environment and Climate
Change
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