Admissibility of Alcohol and Gaming Commission of Ontario Reports Read the full paper here: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1523958 Annual Meeting of the World Institute for Research and Publication - Law June 4-6, 2010

1. Admissibility of Alcohol and Gaming Commission of Ontario Reports Omar Ha-Redeye, AAS, BHA (Hons.), CNMT, RT(N)(ARRT), J.D. Candidate Annual Meeting of the World Institute for Research and Publication - Law July 4-6, 2010

2. It’s a crowded, noisy room, late at night, with lots of inebriated patrons milling about in a reputable (a generous term) establishment. Some of the people there that night later get involved in a criminal act or other mischief resulting in a civil action. The liability of the establishment in serving minors or over-serving others is at issue. The problem is that all the potential witnesses have conflicting and inaccurate recollections of the evening, probably because they too were highly intoxicated. Plaintiff’s counsel wants to demonstrate that the owner was acting negligently, and the defendant similarly wants to prove that they took all reasonable steps. An objective source of evidence exists in the form of report by an inspector of the Alcohol and Gaming Commission of Ontario (AGCO). How will the court treat this document, and what are the barriers to admissibility? Introduction

4. The Need for a Principled Approach

5. Applying the Principled Approach to Common Law

6. Other Requirements and Further Developments

8. Purpose of the hearsay rule was to ensure the reliability of the evidence tendered Wigmore criteria: (1) an original entry, (2) made contemporaneously with that which it recorded, (3) in the routine, (4) of business, (5) by a person since deceased, (6) who was under a duty to do the act and record it and (7) who had no motive to misrepresent it Hearsay exceptions in Sugden v. Lord St. Leonards[1876] 1) difficult to obtain other evidence, 2)declarant must be disinterested, 3)declaration must be made before dispute or litigation, 4) declarant must have had peculiar means of knowledge not possessed in ordinary cases Common Law Exceptions to Hearsay

9. Myers v. Director of Public Prosecutions Aynsley v. Toronto General Hospital Ares v. Venner Records made contemporaneously by someone having personal knowledge of the matters being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein [para. 26] Setak Computer Services Corp. Ltd. v. Burroughs Business Machines Ltd. Business Records Exception

10. Canada Evidence Act s. 30. (1) Business records to be admitted in evidence 30. (10) Evidence inadmissible under this section Ontario Evidence Act 35. (1), (2) Business records “it was in the usual and ordinary course of such business to make such writing or record” Statutory Exceptions

11. Part 2 - Interpretation

12. Setakat paras. 31-33: s. 36 is cast in very broad terms so as to encompass practically every type of writing utilized in connection with any business…. the section itself seems to have been drafted in very broad terms. Section 10 of the Interpretation Act Woods v. Elias at paras. 4, 17, 19 …The use of the word "business" has in my view a great deal of significance…. The floodgates would be open.... Rejects Setakand Ares ejusdem generis rule A Broad or Narrow Interpretation of Business Records

13. C.A.S., Halifax v. H. (L.T.) at paras. 24-32 third party statements gives too broad an interpretation to the business record hearsay exemption not under a duty in the normal course of business to make a report should be excluded Canada v. Obodzinskyat para. 36-37 made by civil servants in the course of duty based on personal observation and recollection Did not discuss interviews with candidates or disclosed their contents personal knowledge of the information contained in the report Importance of First-Hand Knowledge

14. Catholic Children's Aid Society of Toronto v. J.L. personal knowledge of the officer recording it received from another officer acting under a duty to report Children's Aid Society of London and Middlesex v. S.K. informant group has no comparable duty to accurately report the information R. c. Berniquez Severed link in note provided to officer First-Hand Knowledge (con’t)

15. Canada Evidence Act S. 30. (6) Court may examine record and hear evidence R. v. Martin at paras. 36-38, 48 Parliament intended to exclude double hearsay weight is an issue to be addressed after the document is accepted as evidence Ontario Evidence Act S. 35.(4) Surrounding circumstances Aynsleyat para. 12 while a document is admissible, the question of weight is a question for the Judge to decide the Judge will apply all of those old rules of evidence Canada v. Oberlander Federal Court Act, S. 54(2) Admissibility of evidence Admissibility of Double Hearsay

16. Lack of clear guidelines in Ares Requirement in Woods to be present for cross-examination R. v. Sunila R. v. Grimbaat para. 16 S. 30 has removed that requirement of personal knowledge R. v. Anthes Business Forms Ltd. 2-Part test in R. v. Penno: establishing nature of the recording system, confirming the accuracy of the information recorded Inconsistencies in the Business Record Exception

17. R. v. Ross Distinguishes Anthesat paras. 52-54 who prepared thedocuments? not admitted for their contents, but for practice of recordkeeping Criticizes Pennoat paras. 58-64 2-part test not a necessity Hearsay already contemplate in the Act No need for “maker” to have personal knowlege R. v. Madsen Personal observation or knowledge insufficient lacked Wigmore’s principles of necessity and circumstantial guarantee of trustworthiness More Inconsistencies

18. R. v. Monkhouserejected requirement in R. v. Madsen Omand v. Alberta Milling Co. J.H. Ashdown Hardware Co. v. Singer Canada Atlantic Railway v. Moxley Common Law requirement maintained in R. v. Laverty not maintained in R.v. Wilcox document was evaluated on merits of trustworthiness Statutory exclusion rules not applied in R. v. Heyden InSunilacommon law approach was used where the statutory approach was unsuccessful Tecoglas Inc. v. Domglas Inc. and R. v. M.P. [2000] But see Exhibitors Inc. v. Allan Still More Inconsistencies

19. Part 3 – New Requirements

20. R. v. Starr, [2000] Iacobucci J. called a need for an “intellectual coherence of the law of hearsay.” R. v. Khan, [2001] SCC developed the “principled approach” necessity and reliability Could meet test in Myers How is Necessity Defined? inspector is non-compellable for statutory reasons inspector is in a different jurisdiction inspector does not have independent recollection of the event The Need for a Principled Approach

21. R. v. G.N.D. Limits of necessity dependent on each case necessity and reliability are not completely compartmentalized considerations part of the same continuum Still Fact Specific

22. R. v. F.J.U at para. 31 traditional inflexible approach rejected in favour of allowing evidence when reliable and necessary R. v. Hawkins at para. 66 give effect to the underlying purposes of the rule R. v. Starr L'Heureux-Dubé J (dissent) at para. 22 challenge existing hearsay exceptions would sacrifice certainty and predictability Iacobucci J. (majority) at para. 192 to extent that various exceptions conflict with requirements of principled analysis, it is principled analysis that should prevail Applying the Principled Approach to Common Law

23. Surrounding circumstances in Starr How do we deal with double-hearsay (Woods) Threshold vs. Ultimate reliability overturned in R. v. Khelawon R. v. Merzat para. 51 look to factors surrounding the making of the statement for reliability Reliability test in Catholic Children's Aid Society of Toronto v. J.L. residual discretion to exclude evidence Other Requirements and Further Developments

24. AGCO report represents best evidence available about the serving practices of a licensed establishment. AGCO inspector disinterested from the civil or criminal action that proceeds from a establishment’s liability meets the Wigmore criteria of an original entry made contemporaneously in the routine of business who was under a duty to record it and with no motive to misrepresent does not have the double hearsay issues raised in Woods Higher necessity if the inspector is not available for cross-examination for valid reason Part 4 - Conclusions