R. v. Schertzer, 2008 CanLII 1836 (ON SC)
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[13] Faced with that obstacle, the prosecution then seeks to rely on the common law requirements for the admissibility of business records. The modern requirements were established in Ares v. Venner 1970 CanLII 5 (SCC), [1970] S.C.R. 608 and were subsequently summarized in R. v. Monkhouse 1987 ABCA 227 (CanLII), (1987), 61 C.R. (3d) 343 (Alta. C.A. ) where Chief Justice Laycraft said, at p. 350:
“In his useful book, Documentarv Evidence in Canada (Carswell Co., 1984), Mr. J.D. Ewart summarizes the common law rule after the decision in Ares v. Venner as follows at page 54:
‘… the modern rule can be said to make admissible a record containing (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent. Read in this way, the rule after Ares does reflect a more modern, realistic approach for the common law to take towards business duty records.’.”
[15] Further, in Monkhouse, Chief Justice Laycraft went on to explain the fundamental rationale for why business records are admissible without the need to call the author of the records. He said, at pp. 350-351:
“These hearsay records are not to be accepted in evidence merely to avoid the inconvenience of identifying a witness or because many witnesses would be involved, or even because otherwise no evidence would be available. Rather, they can be admitted only if they have come into existence under circumstances which makes them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence.” [emphasis added]
[18] It is for this same reason that the prosecution cannot successfully rely on the principled exception to the hearsay rule. In order to fall within that exception, the evidence sought to be admitted must meet the twin tests of necessity and reliability. There is no dispute that these notes are clearly hearsay insofar as they might be admitted against the accused other than Mr. Maodus. Hearsay is presumptively inadmissible. The rationale underlying that presumption is set out in R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787 where Madam Justice Charron said, at para. 2:
“As a general principle, all relevant evidence is admissible. The rule excluding hearsay is a well-established exception to this general principle. While no single rationale underlies its historical development, the central reason for the presumptive exclusion of hearsay statements is the general inability to test their reliability. Without the maker of the statement in court, it may be impossible to inquire into that person's perception, memory, narration or sincerity. The statement itself may not be accurately recorded. Mistakes, exaggerations or deliberate falsehoods may go undetected and lead to unjust verdicts. Hence, the rule against hearsay is intended to enhance the accuracy of the court’s findings of fact, not impede its truth-seeking function.”
[19] Madam Justice Charron went on to outline the trial judge’s role as the evidentiary gatekeeper who must decide whether hearsay statements meet a threshold reliability in order to be admissible. Madam Justice Charron said, at para. 3:
“In determining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible. The trial judge’s function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to be decided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfully tested by the ultimate trier of fact. In the context of a criminal case, the accused’s inability to test the evidence may impact on the fairness of the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision on admissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can be shown.”
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