Court File and Parties

COURT FILE NO.: CV-13-40497 DATE: 2023-03-31 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Anthony Rizzuto, Nadia Rizzuto and Anthony Rizzuto Sr., Plaintiffs AND: Hamilton Wentworth Catholic District School Board, Brenda Hamilton and James Vandenbosch, Defendants

BEFORE: The Honourable Justice M. Bordin

COUNSEL: J. Strype R. Singh Bamel for the Plaintiffs J. Greve and C. Leung for the Defendants

HEARD: Mid-trial, March 31, 2023

Ruling on Admissibility

[1] The plaintiffs seek the admission of a typewritten police report entitled “Occurrence Details”. On consent, the document was marked as Exhibit 1 in the trial as it was referred to in examination of witnesses. However, the defendants did not concede the document could be relied on for the truth of its contents.

[2] The first part of the document was drafted by another officer involved earlier in the investigation. That officer has testified and has been cross-examined and there is no need to consider the admissibility of those portions of the document. For clarity, the portions of the document I am considering for admission and to which this ruling applies is the portion of the report that begins at the bottom of the third page of the report under the heading “Supplementary report” which indicates it was authored by Cst. Mitchell, and includes the rest of the document to the end of the seventh page thereof. I will refer to the document as the “Police Report.”

[3] It is not disputed by the defendants that an Evidence Act notice has been served with respect to the Police Report. It is not disputed by the defendants that Cst. Mitchell, who drafted the referenced portion of the Police Report, is unexpectedly unavailable to testify for medical reasons.

[4] The parties agreed that I may review the Police Report and I have done so. The Police Report is redacted. It does not contain the names of witnesses interviewed by the police or direct quotes attributable to anyone other than Nadia.

[5] In oral submissions the plaintiffs initially asserted that the Police Report should be admitted for the truth of its contents as both necessity and reliability are established.

[6] As to necessity, the plaintiffs point to the fact that Cst. Mitchell is no longer available to testify.

[7] As to reliability, the plaintiffs assert that the Police Report is the product of an independent professional police investigation in which no criminal charges could be laid. The plaintiffs point to the evidence that the defendants agreed to have the police conduct an investigation. In short, the plaintiffs assert that reliability should not be a bar to the admission of the Police Report for the truth of its contents and that the court should not allow technical rules of the court to interfere with arriving at the truth. The court was urged to consider the admission of the Police Report to ensure trial fairness which includes society’s interest in having the trial process arrive at the truth.

[8] Alternatively, the plaintiffs argue the Police Report is admissible as a business record pursuant to s. 35 of Evidence Act, R.S.O. 1990, c. E.23 or the common law exception set out in Ares v. Venner, [1970] SCR 608.

[9] Toward the end of their submissions, the plaintiffs submitted that the court could admit the Police Report for the conclusion reached by Cst. Mitchell with respect to the effectiveness or sufficiency of the investigation by the defendants and that although the court has broader discretion to admit the Police Report, the plaintiffs were only seeking the admission of the Report as to Cst. Mitchell’s conclusions as to the sufficiency of the defendants’ investigation.

[10] The defendants submit that the redacted Police Report does not contain sufficient information to satisfy the reliability component of the principled approach to hearsay. The defendants also dispute that the Police Report contains any conclusion as to the sufficiency of the defendants’ investigation. Further, that any statements made by witnesses set out in the report are not made under oath and are not recorded in any way. Nor is there information as to the circumstances of the interviews with the witnesses and who was present.

[11] With respect to admission as a business record, the defendants simply say there is no information before the court as to the cases relied on by the plaintiffs and whether they are distinguishable.

[12] In argument, the parties agreed that Cst. Zafirides has already testified as to the names of the four eyewitnesses provided by the defendants and as to her understanding that they had not been interviewed by the defendants. The plaintiffs have two witnesses left to call at this point in the trial and none of these witnesses are on the list. The evidence indicates that names of the witnesses were provided or available to the plaintiffs since the time of the events. No explanation has been given as to why these witnesses are not being called. The Police Report does not disclose the names of these witnesses.

[13] Neither party provided the court with authority as to the admissibility of police records pursuant to s. 35 of the Evidence Act which provides at subsection 2:

(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 made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

[14] In Robb v. St. Joseph’s Health Care Centre; [1999] O.J. No. 523, at paragraph 13, the court, referencing the earlier decision of Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et al. (1977), 15 O.R. (2d) 750, set out the following summary of principles for admissibility of documents as business records pursuant to s. 35 of the Evidence Act:

1. The record or writing must be made in the usual and ordinary course of business as opposed to some purely private or personal activity;
2. The record or writing must have been made at the time of the event or within a reasonable time of the event;
3. The circumstances surrounding the making of the document affects weight rather than admissibility;
4. The documents, if created pursuant to a regular business duty, are presumed to be reliable;
5. The policy consideration behind s. 35 are to assist in the proof of an event on the assumption that the document which records or refers to the event is trustworthy and, depending on the circumstances surrounding the creation of the document, prima facie proof of the facts recorded therein; and
6. The mere fact that a document is in the possession of a party does not cloak the document with proof of the truth of its contents.

[15] In R. v. Felderhof, 2005 ONCJ 406, the court set out eight requirements for admissibility under s. 35:

a. a record made on some regular basis, routinely, systematically; b. of an act, transaction, occurrence or event; c. and not of opinion, diagnosis, impression, history, summary or recommendation; d. made in the usual and ordinary course of business; e. it was in the usual and ordinary course of such business to make such record; f. pursuant to a business duty; g. at the time of such act or within a reasonable time; and h. where the record contains hearsay, both the maker and informant must be acting in the usual and ordinary course of business.

[16] The court in Felderhof acknowledged that the eight factors were listed for convenience of analysis and that other cases list fewer factors or combine the factors and criteria.

[17] The Police Report appears to have been made as part of the usual and ordinary course of “business” of Cst. Mitchell pursuant to his duty as a police officer. It appears to have been made at the time of the events or within a reasonable period of time thereafter. They are acts, occurrences or events. However, any hearsay statements in a police occurrence report by non-parties would not be made by those parties in the usual and ordinary course of any business in this case.

[18] The court in CCAS v. I.B. et al., 2020 ONSC 5498 specifically considered the admissibility of police occurrence reports in the context of a motion for summary judgment. The court was guided by the commentary in Children’s Aid Society of Toronto v. L.(L.) 2010 ONCJ 48 with respect to the admissibility and use of police records in child protection proceedings. At paragraph 14 the court in CCAS v I.B. summarized the following principles applicable to admission of police occurrence reports:

a. Police records, including both criminal offence records and occurrence reports, are generally admissible as business records under s. 35 of the Evidence Act, as a record of the act, transaction, occurrence or event; b. Police records, including both criminal offence records and occurrence reports are presumed to be reliable as they are: i. typically made in usual and ordinary course of policing and/or the administration of criminal justice; and ii. typically recorded at the time of the event or within a reasonable time thereafter; c. The first-hand observations of police officers, as recorded within the police records and reports, are generally admissible; d. The comments of the parties, as recorded in police records may be admitted as statements against interest; e. Section 35 of the Evidence Act is not intended to permit the admission of otherwise inadmissible evidence: Catholic Children’s Aid Society of Toronto v. Jen L. and Willard R. (No. 3) at para. 11; f. Third-party statements recorded within the police records are not admissible for the truth of their contents; g. Opinion evidence recorded within the police records or occurrence reports is not admissible; h. Information that is not relevant to the issues for determination is not admissible. The probative value of the evidence must outweigh any prejudice to its introduction: CAS of Toronto v. L.(L.), at para. 6; and i. The presumption of reliability of police records may be rebutted.

[19] I agree with the above summary. I would add that with respect to the presumption of reliability of police records referenced in CCAS v I.B., this is for the purpose of determining admissibility of the records. The ultimate determination of whether the police records are credible and reliable is left to the trier of fact to determine after considering all the evidence.

[20] The Police Report contains information that is recorded with respect to events that occurred before Cst. Mitchell’s involvement. As noted, it does not attribute any direct quotes to anyone other than Nadia. Without referring to the specific information received, the Police Report reaches a conclusion as to what likely happened on November 23, 2009.

[21] The same considerations that would apply to the evidence of Cst. Mitchell, were he to testify, apply to the contents of the written Police Report.

[22] The Police Report written by Cst. Mitchell (as circumscribed above) is admissible as a business record subject to the following:

a. It is admissible to the extent of what Cst. Mitchell: i. Personally observed or communicated; and ii. Understood likely transpired on November 23, 2009, based on the interviews he conducted, but the final determination of what transpired that day is a matter reserved to the court. b. Is admissible for any statements made by the parties as admissions against interest, but not any double hearsay where the parties reported to Cst. Mitchell what others said. c. It is not admissible for: i. The truth of any non-party hearsay statements; ii. Any opinions proffered by Cst. Mitchell or others; iii. The truth of any impressions or histories proffered by Cst. Mitchell or others; and iv. To the extent that the source of any statement is not identified in the Police Report or cannot be reasonably inferred from the report with some certainty, the statement is not admissible for the truth of its contents.

[23] I make the following additional comments. It is the role of this court, not the police, to make the necessary findings of fact and to determine what happened on November 23, 2009, and whether, as alleged by the plaintiffs, the defendants’ conduct was negligent.

[24] Although it appeared to have been abandoned by the plaintiffs at the end of their argument, I consider whether any of the Police Report can be admitted for the truth of its contents. I have addressed much of that aspect of admissibility above but will consider necessity and reliability pursuant to the principled approach analysis advanced by the plaintiff.

[25] The plaintiffs have not identified what aspects of the Police Report they seek to have admitted for the truth of its contents beyond pointing to the entire document. As noted above, there are no direct quotes of non-parties evident in the Police Report that would engage the hearsay rule.

[26] To the extent that the plaintiffs seek to rely on any unidentified hearsay evidence of third parties, the Police Report would satisfy the requirement of necessity given that Cst. Mitchell is not available to testify. However, I have significant concerns about reliability.

[27] Given the lack of detail in the Police Report as to the source of Cst. Mitchell’s information, it is virtually impossible to test the truth and accuracy of any statements. While the Police Report references “seven informal statements”, no such statements are before the court. The Police Report contains no useful information about the circumstances in which any statements were made or information provided to Cst. Mitchell. There are no actual statements, recordings or alleged quotes of what was said to him. I suspect that this is because the investigation was not going to result in any criminal charges.

[28] It is difficult for the trier of fact to assess the truth of hearsay evidence when the circumstances under which it was made may not be clear and the witness is not available for cross-examination, cannot be observed by the trier of fact, and did not testify under oath when giving the statement: R. v. MacKinnon, 2022 ONCA 811, para 30, citing R. v. Bradshaw, 2017 SCC 35, [2017] 1 SCR 865 para. 20. It is even more difficult when the person who gave the statement is not identified.

[29] As noted in R. v. Khelawon, 2006 SCC 57 at para 3, as trial judge, I must “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."

[30] Here there are no adequate substitutes for testing the truth and accuracy of the evidence in the Police Report. There are not sufficient circumstantial or evidentiary guarantees that hearsay statements of non-parties are inherently trustworthy. I am not satisfied that such statements are so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process.

[31] In the result, any hearsay in the Police Report from or inferred from non-parties is not admissible for the truth of its contents.

[32] Finally, the plaintiffs requested that I order that the Police Report can be provided in unredacted form. The plaintiffs said they had an agreement with the police that when Cst. Mitchell testified he would make reference to the complete unredacted Police Report. No formal motion has been brought before this court for that relief. The defendants say there is a process that must be followed to seek an unredacted version of the Police Report which the plaintiffs have not followed. The plaintiffs respond that they did try to go through the process for obtaining an unredacted police report. No explanation or evidence was tendered for precisely what steps the plaintiffs took or what came of that process.

[33] No authorities, statutory or otherwise were provided to the court setting out my jurisdiction and authority to make the order sought without notice to the parties affected and I decline to do so.

M. Bordin, J. Date: March 31, 2023