Court File and Parties

Court File No.: County of Norfolk 09-527 and 09-528

Date: 2012-08-02

Ontario Court of Justice

Between:

Her Majesty The Queen (Minister of Natural Resources of Ontario)

— AND —

Metalore Resources Limited

Before: Justice of the Peace Kenneth W. Dechert

Trial heard on: March 3, 2011, April 21, 2011 and June 13, 2011

Voir Dire proceeding heard on: February 14, 2012, February 15, 2012 and May 3, 2012

Reasons for Judgment on Voir Dire proceeding released on: August 2, 2012

Provincial Offences Court - Simcoe, Ontario

Counsel:

B. Wilkie — counsel for the Crown

S. Kim and R. Kis — counsel for the Defendant

Ruling on Voir Dire

Statutes, Regulations and Rules Cited

Canadian Charter of Rights and Freedoms, subsection 11(d)
Evidence Act, R.S.O. 1990, c. E-23, as amended, subsections 35(1), 35(2), 35(3), and 35(4)
Evidence Act, R.S.C. 1985, c. E-10, as amended, section 30
Oil, Gas and Salt Resources Act, R.S.O. 1990, c. P.12, as amended, paragraph 19(1)(e)
Ontario Regulation 245/97, as amended, under the Oil, Gas and Salt Resources Act, subsection 2(1)
Oil, Gas and Salt Resources of Ontario – Provincial Operating Standards, Version 2.0 (March 27, 2002), subsection 5.1.1(a)

Cases Cited

K.W. DECHERT, J.P. (orally):

Introduction

[1] Under Provincial Offences Act informations nos. 09-527 and 09-528, Metalore Resources Limited stands charged that it between the 1st day of December, 2004 and on or about the 29th day of October 2009, at Lot 22, Concession VII, Geographic Township of Walsingham, Norfolk County, while operating under the authority of Well Licence 8470 did commit the offence of lose or dispose of oil field fluids or cause or permit its loss or disposal in a manner that results in pollution of the natural environment, contrary to the Oil, Gas and Salt Resources Act, section 19(1)(e) and that it between the 1st day of December 2004 and on or about the 29th day of October 2009, at Lot 22, Concession VII, Geographic Township of Walsingham, Norfolk County, while operating under the authority of Well Licence 8470 did commit the offence of fail to ensure that oil field fluid was properly disposed of in accordance with the Provincial Operating Standards, section 5.1.1(a), thereby committing an offence contrary to Regulation 245/97, section 2(1) and contrary to the Oil, Gas and Salt Resources of Ontario - Provincial Operating Standards Version 2.0, section 5.1.1(a).

[2] Upon arraignment on March 3rd, 2011, the defendant corporation entered a plea of not guilty to each of the charges and a joint trial of the charges ensued before me in Simcoe, Ontario. The trial continued on April 21st, 2011 and on June 13th, 2011, when it was adjourned pending the completion of a voir dire to determine the admissibility of a document evidencing the chemical analysis of certain samples of soil and vegetation collected by officers of the Ontario Ministry of Natural Resources on November 14th, 2008.

[3] The voir dire took place on February 14th and 15th, 2012 and was completed on May 3rd, 2012. It was then adjourned to August 2nd, 2012, for my ruling.

[4] The Crown was represented by its counsel Mr. B. Wilkie. The defendant was represented by its counsel Mr. S. Kim and Ms. R. Kis.

Background Evidence

[5] During the trial of the subject charges, I received verbal evidence from Officer James Smith, a "compliance supervisor – specialist", with the Petroleum Resources Centre of the Ministry of Natural Resources and from Inspector Wesley McLellan, who, as of November 2008, was a petroleum inspector with the Ministry of Natural Resources. In addition, during the course of the trial, I received 16 photographic exhibits and 5 documentary exhibits marked as exhibit numbers 13, 18, 19, 20 and 21.

[6] During the trial I heard that the defendant was incorporated in 1943 and has continued as a valid Ontario corporation to this date. The Crown established that Metalore Resources Limited obtained a licence to operate a natural gas well, located at lot 22, Concession 7, in the Township of North Walsingham and the County of Norfolk, being "Well Licence 8470", on December 17th, 1996 and that it was the licensee for the said well continuously from that time. The name of the subject natural gas well is "Metalore #89". I learned that the subject well is located on private property in a forested area.

[7] On August 24th, 2008, Officer James Smith attended the Metalore 89 well site, in the course of his regular duties as a petroleum compliance inspector. Upon perusing the site, the officer noticed a green-coloured hose running from the dyked area of the oil field fluid storage tank located behind the natural gas well head, into the forested bush area beside the tank. Upon further investigation, the officer observed the hose running into a "dug pit" in the forested area.

[8] The officer testified that he returned to the subject well site on October 30th, 2008 to see if the said hose running from the "bermed" area of the oil field fluid tank into a pit in the forested area, continued to remain in place. He advised that on that date, he observed the green garden hose in the same basic position that it was on August 24th.

[9] The officer inspected the "dug pit" in the forested area at that time. He noticed it was "quite wet". He observed the existence of a dark line on the inside wall of the pit, noting that the soil located below the line was wet and that the soil above the line was dry. Based on his observations Officer Smith suspected that oil field fluids in the area of the storage tank were being illegally disposed of into the environment by means of the said garden hose.

[10] Officer Smith testified that as a result of his observations, he obtained a search warrant for the subject property, which he executed on November 14th, 2008. In executing the warrant, the officer was assisted by Inspector Wesley McLellan and Inspector Michael Bywater of the Ministry of Natural Resources. While Officer Smith was in charge of the execution of the warrant and received the seized exhibits, Inspector McLellan collected the subject exhibits and Inspector Bywater was responsible for security.

[11] During the course of the execution of the warrant, Inspector McLellan collected six soil samples, two fluid samples and one sample of vegetation matter found at the bottom of the dug pit. Additionally, he seized the green garden hose which had been running from the bermed area of the storage tank into the dug pit.

[12] Inspector McLellan initially collected two fluid samples, one taken from the pipeline running from the natural gas well into the oil field fluid storage tank and the other taken from the oil field fluid storage tank itself. He collected these samples by using a 500 millilitre amber glass jar. Once he obtained the sample in the jar he secured the lid on the jar and delivered the sample to Officer Smith.

[13] Upon receiving the fluid samples from Inspector McLellan, Officer Smith proceeded to place security seals over each of the jars, sign and date the seals and then place the jars in a locked box in his truck.

[14] Upon completing the collection of the fluid samples, Inspector McLellan began to collect soil samples from the existing dug pit. In this regard, he initially obtained a sample from the surface of the bottom of the dug pit. He eventually put the sample of soil into a 500 millilitre amber glass jar, secured the lid of the jar and transferred the jar to Officer Smith.

[15] Inspector McLellan then returned to the dug pit and collected a sample of vegetation in the form of leaves or needles which had collected at the bottom of the dug pit. The inspector scoped up this material using a trowel and eventually placed the material in a 500 millilitre amber sample jar. He then secured the lid and turned the sample jar over to Officer Smith.

[16] The inspector then proceeded to dig approximately 10 centimetres down from the bottom of the pit, to obtain a soil sample. Once he completed the digging, he obtained a soil sample at that location and eventually placed it in a 500 millilitre sample jar. He secured the lid of the jar and turned it over to Officer Smith.

[17] Inspector McLellan then returned to the existing pit and dug a further 10 centimetres down such that he had dug a total of 20 centimetres down from the bottom of the original pit. He then obtained a sample of soil from that location. He placed the sample in an amber sample jar, secured it with a lid and, once again, turned the sample over to Officer Smith.

[18] Officer Smith testified that at this point in time, both he and Inspector McLellan dug a control sample pit at a location distant 13.4 metres from the location of the existing dug pit. In this regard, the officers initially dug the control pit to a depth of 1.4 metres where Inspector McLellan collected a soil sample. He eventually placed the sample in a sample jar, secured the lid and turned the jar over to Officer Smith.

[19] Inspector McLellan then dug the control pit to depths of both 10 centimetres and 20 centimetres from the initial depth of the control pit, being 1.4 metres from the surface. He obtained soil samples at each of the said depths. He eventually placed the samples into two separate sample jars, one for each of the said depths, secured the lids on the jars and turned the jars over to Officer Smith.

[20] Upon receiving the sample jars for each of the soil samples and the sample of vegetation from the bottom of the existing dug pit (being 1.4 metres from the surface) from Inspector McLellan, Officer Smith placed security seals on the jars, labelled them and dated and signed the labels. He then took steps to secure each of the sample jars in his truck.

[21] As noted above, Inspector McLellan seized the green garden hose running from the bermed area to the existing pit. The hose was then rolled up and placed in a plastic bag which had a "security zip". Officer Smith advised that he then labelled the bag and signed and dated the label, and secured the bag containing the hose in his truck.

[22] Officer Smith stated that following the collection of the said samples at the well site, he attended a hardware store in London, Ontario, where he purchased a green plastic hose similar to the one that he seized from the well site. He advised that he placed the hose in a separate sealed exhibit bag. He indicated that he put a security seal on the bag, labelled the bag and endorsed the date on the label.

[23] Officer Smith testified that after he completed executing the search warrant on the subject property, he left the property and eventually returned to his office located within the London, Ontario headquarters of the Ministry of Natural Resources. He stated that upon leaving the site of the search, the ten samples which he seized were located in a "secured box" within his truck. He went on to state that when he arrived at his office, he transferred the box containing the samples to the "locked evidence room" within the said headquarters. He indicated that he was the only person who had a key to the evidence room.

[24] Officer Smith testified that as the exhibit officer in this investigation, he engaged the services of Maxxam Analytics of Edmonton, Alberta to conduct a scientific analysis of the fluid, soil and vegetation samples seized. During cross-examination he testified that Maxxam Analytics was the laboratory that the Ministry of Natural Resources always used to conduct "petroleum-type analysis work".

[25] Officer Smith stated that on December 5th, 2008, he personally delivered the samples to the office of Maxxam Analytics located on Sladeview Road in Mississauga, Ontario. He advised that when he arrived at the said office in the early afternoon of December 5th, he met with Mr. Bruce Reynolds, the supervisor/manager of the office and transferred the samples to him. He understood that the procedure of Maxxam Analytics was that the box of samples would be air-couriered to its laboratory in Edmonton, Alberta, the next day.

[26] In describing the steps that he took to transfer the samples from the evidence room in the Ministry of Natural Resources headquarters to the Mississauga office of Maxxam Analytics, Officer Smith noted that all of the samples were transported by him in one box. In this regard, he went on to state as follows:

…when I am getting ready to transfer the samples from the locked evidence room to the lab, I proceed to secure them in a sealed box so I wrap the jars in bubble wrap to ensure that they don't break and put them in a box and put stuff in the box to ensure that they don't break and then I seal that box where I attached an envelope that would have the Case Submission Form in that envelope and then I proceed to deliver that sealed box to the lab in Mississauga.

[27] Officer Smith testified that upon transferring custody of the samples to Mr. Bruce Reynolds of Maxxam Analaytics in Mississauga, he had Mr. Reynolds sign the "chain of custody record" in that regard. The officer stated that after he delivered the samples to Mr. Reynolds he did not have any further involvement with the samples, noting that at that point in time the samples entered into the "internal chain of custody" of Maxxam Analytics.

[28] During the course of his testimony, Officer Smith stated that following the execution of the subject search warrant, he prepared a document titled "Case Submission Form", for the subject case being "No. NRP-001-08", which document was delivered to the Maxxam Analytics laboratory in Mississauga with the various fluid, soil and vegetation samples.

[29] In the said document, which was entered into evidence in the trial as Exhibit #13, Officer Smith catalogued the various samples seized on November 14th, 2008, describing the various types of analyses required to be conducted on the samples. The officer itemized each sample as follows:

Item no. NR-101M – fluid sample taken from pipeline running from well into the storage tank;
Item no. NR-102M – fluid sample taken from storage tank;
Item no. NR-103M – soil sample taken on the surface of 1.4 metre deep open pit;
Item no. NR-104M – vegetation matter taken from the bottom surface of 1.4 metre deep open pit;
Item no. NR-105M – soil sample taken at a depth of 10 centimetres from the bottom surface of the open pit;
Item no. NR-106M – soil sample taken at a depth of 20 centimetres from the bottom surface of the open pit;
Item no. NR-107M – controlled soil sample taken at the bottom surface of 1.4 metre deep controlled open pit;
Item no. NR-108M – controlled soil sample taken at a depth of 10 centimetres from the bottom surface of the open controlled pit;
Item no. NR-109M – controlled soil sample taken at a depth of 20 centimetres from the bottom surface of the open controlled pit;
Item no. NR-110M – green plastic hose seized from the site;
Item no. NR 111M – controlled green plastic hose – Location: City of London.

[30] In the case synopsis portion of the "Case Submission Form", Officer Smith wrote as follows:

Soil samples and plastic hose were removed from a site under investigation for suspected contamination from oil field fluids. An oil field fluid is a by product produced in the extraction of natural gas in the Province of Ontario. The oil field fluid produced is stored on site in storage tank. It is suspected the operator of the well site is dumping and/or pumping the oil field fluid contained in the tank on site, through a green plastic hose, into dug open pit, adjacent to the well site. Oil field fluids are formation water with high concentrations of Hydrocarbons, Chloride, Sulphate, Calcium and Sodium with the possibility of heavy metals being present.

It is suspected the release of oil field fluids into open pit on site is contaminating the soil. As officer in charge of the investigation I am looking for analyses of the soil taken from the open pit to determine if oil field fluid is disposed into the pit, from the oil field fluid being produced and stored on site.

Three controlled soil sample(s) are also being submitted, removed from adjacent sites and one controlled green plastic hose purchased new from a local supplier, to provide a comparison.

The Issues

[31] As stated above, the first phase of the Crown's case in this trial was completed on June 13th, 2011, following the completion of the testimony of both Officer James Smith and Inspector Wesley McLellan.

[32] On February 14th, 2012, I embarked on a voir dire. The evidentiary phase of the proceeding was completed on February 15th, 2012, followed by the completion of legal submissions on May 3rd, 2012. On February 14th and 15th, 2012, I received verbal evidence from Crown witness Ms. Lisa Anne Thum and on February 15th, 2012, I received testimony from Crown witness Ms. Janet Hay.

[33] During the course of the voir dire, I received and considered six numbered exhibits as follows:

Exhibit #1: The curriculum vitae of Lisa Thum;
Exhibit #2: The curriculum vitae of Janet Hay, dated November 5th, 2009;
Exhibit #3: The Case Submission Form, for case no. NRP-001-08, as prepared by Ministry of Natural Resources Officer James A. Smith, in the subject proceeding (being Exhibit #13 to the trial proper);
Exhibit #4: The Internal Continuity Report for Legal Samples (Transfer Between Maxxam Staff) and the Internal Continuity Report for Legal Samples (Transfer Between Customer and Maxxam Analytics), in the forms prescribed by Maxxam Analytics Inc., prepared in respect of the subject case;
Exhibit #5: A letter to the Court and counsel for the Defendant from Brian Wilkie, dated April 17th, 2012, covering the delivery of the Crown Factum and book of authorities, as well as the subject Crown Factum
Exhibit #6: The Factum prepared on behalf of the Defendant in this proceeding, by its counsel Steve Kim and Renata Kis, dated May 3rd, 2012.

[34] Furthermore, during the course of the voir dire I received two lettered exhibits, identified as follows:

Exhibit A: Two page document dated March 4th, 2009 containing the data obtained by the inductively coupled plasma optical emission spectrometer operated by the Inorganics Laboratory of Maxxam Analytics Inc. in Calgary, Alberta, for both the soluable cations analysis - "SARSOL on MCL – ICPOES4" and the metals digestion analysis – "ICP2-S on MCL – ICPOES4" on the various soil and vegetation samples submitted to Maxxam Analytics Inc. for analysis in this proceeding; and
Exhibit B: Sixteen page document dated May 11th, 2009, titled "Certificate of Analysis" addressed to the Ministry of Natural Resources, 695 Exeter Road, London, Ontario, attention: James Smith, identified as the Laboratory Information Management System ("LIMS") report of the analysis of the subject soil and vegetation samples, prepared by Maxxam Analytics Inc.

[35] The sole issue in this voir dire is the admissibility of Exhibit B. Both parties acknowledge that unless Exhibit B is identified through the testimony of its author, it is prima facie hearsay evidence and is presumptively inadmissible for the truth of its contents.

[36] The Crown submits that the said exhibit, being a Certificate of Analysis, is admissible in the trial proper for the truth of its contents, as a business record under section 35 of the Evidence Act, R.S.O. 1990, c. E.23, as amended, hereinafter referred to as "the OEA". The Crown argues that the Certificate is an electronically produced summary of chemical analyses performed on the subject soil and vegetation samples. The Crown maintains that the LIMS report is a business record "according to the very clear and plain wording" of subsections 35(1) and (2) of the OEA.

[37] The Crown submits that the Certificate of Analysis is admissible under the statutory business records exception to the exclusionary hearsay evidence rule. The Defendant acknowledges that it had received at least seven days notice of the Crown's intention to tender the subject document into evidence as a business record, in accordance with the provisions of subsection 35(3) of the OEA.

[38] The Crown argues that in accordance with subsection 35(4) of the OEA, "it is not necessary to call a witness with personal information about the creation of the record for it to be admissible". In that regard, the Crown relies on subsection 35(4), which states as follows:

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.

[39] The Crown maintains that the lack of personal knowledge of the maker of the business record relative to the circumstances surrounding its making is only relevant to the weight to be afforded to it by the trier of fact. The Crown argues that the issue of the lack of knowledge of the background to the making of the document in question should not therefore affect its admissibility into evidence in a trial, for the truth of its contents. Crown counsel submits that the ultimate determination of the weight to be afforded to the business record and its reliability, are issues to be considered by the Court at the end of the trial when the contents of the record and the circumstances pertaining to its creation may be assessed in conjunction with the totality of the evidence adduced during the trial.

[40] In support of this proposition, counsel for the Crown cites the following passages from the Saskatchewan Court of Appeal decision in Regina v. Martin (1997), 152 Sask. R. 164 (C.A.), at paragraph 49:

As a general rule, documents made in the ordinary course of business are admitted to avoid the cost and inconvenience of calling the record keeper and the maker. As a matter of necessity the document is admitted. Proof that a document is made in the ordinary course of business prima facie fulfils the qualification that in order for hearsay to be admitted it must be trustworthy.

Section 30 [referring to s. 30 of the Canada Evidence Act, R.S.C. 1985, c. E-10] would have accomplished little if the author of the data contained in a business record had to be called to testify. The complexity of modern business demands that most records will be composed of information gleaned by the maker from others.

[41] On the other hand, the Defendant objects to the admission of the Certificate of Analysis as a business record under subsection 35(2) of the OEA and therefore a statutory exception to the exclusionary hearsay evidence rule.

[42] The basis of the Defendant's objection to the admissibility of the Certificate of Analysis, is summarized in paragraphs 4 and 5 of its Factum relative to this voir dire, as follows:

The Defendant objects to the characterization of the Analyses as business records under the Ontario Evidence Act, R.S.O. 1990, c. E.23, ("OEA") for three reasons:

(a) the Analyses do not meet the test of 'business records' as set out in the OEA and admitting them as such is contrary to legislative intent;

(b) the Analyses have been demonstrated to be inaccurate through the course of the voir dire; and

(c) the admission of the Analyses under this exception denies the defendant's fundamental right to make full answer to the allegations against it and precludes the Defendant from testing the Prosecution's evidence.

The Defendant submits that it is not appropriate in the instant case to admit the Analyses and the truth of its contents under the business record exemption of the OEA and submits that the prosecution ought to bear the onus of proof regarding the Analyses.

[43] The Defendant submits that the Certificate of Analysis herein cannot be considered to be a "business record" as defined by subsection 35(2) of the OEA, for the reasons outlined in paragraphs 29 and 30 of its Factum, being as follows:

29 Based on the principles outlined above the following is submitted:

a. Maxxam [referring to Maxxam Analytics Inc.] was not in the business of generating information and recording sample data with respect to the Defendant's well sites-the Defendant does not rely upon Maxxam and its Analyses on a regular basis;

b. Maxxam does not rely on the data it generates during the regular course of business and had not relied on the Analyses at all – it simply forwarded the Analyses to Officer Smith. There has been no evidence from Officer Smith that he regularly relies on the Analyses.

c. The Analyses do not record an act, transaction, occurrence or event – the Analyses do not record the collection of samples;

d. The Analyses do not record an act, transaction occurrence or event – the Analyses do not record the process of testing the samples;

e. The Analyses are something akin to synthesis and summary of the nature of the samples – the Analyses do not capture an act, transaction, occurrence or event as required;

f. The Analyses were not completed contemporaneously with the samples taken or even the testing conducting – the Analyses were produced 3 months after the testing was conducted and 5 months after the samples were collected.

30 It is submitted that at most, the Analyses may be admitted to prove that testing occurred at the Maxxam laboratories, but cannot be admitted to prove the contents of the tests or the nature of the soil samples.

[44] In its Factum, the Defendant argues that the Certificate of Analysis cannot be considered accurate and therefore reliable. The Defendant submits that the theory behind the statutory exception to the hearsay evidence rule contained in subsection 35(2) of the OEA is that documents generated in the ordinary course of business and "which are relied upon routinely for accuracy ought to be admitted without having to call the author or originator of the document". The Defendant maintains that the underpinning of the business records exception to the exclusionary hearsay evidence rule is that the record is assumed to be accurate and therefore inherently reliable.

[45] The Defendant submits that I cannot assume that the subject Certificate of Analysis is accurate, given the evidence of Ms. Janet Hay in the voir dire, where she admitted that she made an erroneous entry in one part of the "Internal Continuity Report for Legal Samples" (Exhibit #4 to the voir dire).

[46] The Defendant summarized its objection to the admission of the Certificate of Analysis based on the argument of its apparent lack of accuracy, at paragraph 35 of its Factum, as follows:

As the prosecution has demonstrated, the process that the samples undergo is extensive. The continuity report entered as Exhibit C [actually Exhibit #4 to the voir dire] demonstrates that no less than 17 people touched, worked with or handled the samples to conduct various complicated tests. Again, the Defendant has established upon cross-examining just a single person who handled the samples that she made a mistake with the documents she generated. Given this information, how can the Court rely upon the Analyses where it is generated on this uncertain basis? It is submitted that the Court cannot and should not rely on the Analyses for accuracy of their content.

[47] Finally, the Defendant submits that to admit the Certificate of Analysis herein for the truth of its contents under the statutory business records exception to the hearsay evidence rule, would violate the Defendant's fundamental right to be presumed innocent until proven guilty and would serve to "unfairly shift the burden of proof from the prosecution to the defendant". In this regard, the Defendant relies on the interpretation of the applicability of section 35 in the context of the values protected by the Canadian Charter of Rights and Freedoms, enunciated in Regina v. Felderhof, 2005 ONCJ 406, [2005] O.J. No. 4151 (Ont. C.J.) at paragraph 36, as follows:

The Prosecution's position that reliability goes to the weight and not to admissibility is not supported by Setak [Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et.al., [1977] O.J. No. 2266 (Ont. H.C.)] and the case law. It ignores the presumption against changing the common law. It ignores the presumption of compliance with constitutional norms including the 'fundamental principle of justice protected by the Charter, that the innocent must not be convicted' as stated in Starr, supra. [Regina v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; [2000] S.C.J. No. 40 (S.C.C.)]. Another fundamental principle of justice is the presumption of innocence set out in s. 11(d) of the Charter. One of the minimum requirements of the right to be presumed innocent until proven guilty stated by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103 is that 'it is the state which must bear the burden of proof.' To admit unreliable evidence as part of the prosecution's case which the defendant would then be required to answer could in that sense unfairly shift the burden of proof.

[48] In response to the Crown's argument that the Certificate of Analysis be admitted and that any issues related to its reliability would only be relevant to the concept of the weight to be afforded to the document, the Defendant made the following submissions in paragraph 37 of its Factum:

It is submitted that the prosecution's position that the Analyses should be admitted and their reliability should only go to the weight and not to admissibility is not supported by Setak [Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et.al., supra.], s. 35 of the OEA or other jurisprudence. It is submitted that reliability is in fact incorporated into the s. 35 elements and ought to be considered for admissibility and not just weight as set out above.

The Voir Dire Evidence

(i) The Testimony of Ms. Janet Hay

[49] At the outset of her examination-in-chief, I received Ms. Hay's curriculum vitae as an exhibit, on consent. It was marked as Exhibit #2 to the voir dire.

[50] Based on her curriculum vitae, I determined that Ms. Hay had been employed by Maxxam Analytics Inc. (hereinafter referred to as "Maxxam"), since approximately 1995, and that as of the time of her testimony she held the position of "Scientific Specialist – Scientific Services Group". Based on her testimony and the contents of her curriculum vitae, I learned that she had been employed in the said position since July 2008 and that in that position she had worked at Maxxam's "petroleum office" in Edmonton, Alberta.

[51] During her testimony-in-chief, Ms. Hay advised that in late 2008, she received a box containing samples and exhibits sent by Officer Smith of the Ontario Ministry of Natural Resources, for purposes of analysis, in her capacity as "legal project manager". During cross-examination, she clarified her evidence in this regard by indicating that she received the box of samples and a document of instructions from Officer Smith, in December 2008. Additionally, during her testimony, she identified a document, titled "Internal Continuity Report for Legal Samples (Transfer between Maxxam staff) in the form prescribed by Maxxam, which was entered as Exhibit #4 to the voir dire. Ms. Hay acknowledged having written some of the entries on the report.

[52] In a section of Exhibit #4 titled "Internal Continuity Report for Legal Samples (Transfer between Customer and Maxxam Analytics), it is noted that on December 8, 2008, at 14:00 hours, Ms. Hay took possession of a number of exhibits that she received from the "log-in" department of Maxxam's Edmonton office. That document made reference to the following sample exhibits:

Exhibit #NR-101M – Glass jar – Red security tape intact;
Exhibit #NR-102M – Glass jar – Red security tape intact – Nov. 14, 2008;
Exhibit #NR – 103M – Glass jar – Red security tape intact – Nov. 14, 2008;
Exhibit #NR-104M – Glass jar – Red security tape intact;
Exhibit #NR-105M – Glass jar – Red security tape intact – Nov. 14, 2008;
Exhibit #NR-106M – Glass jar – Red security tape intact – Nov. 14, 2008;
Exhibit #NR-107M – Glass jar – Red security tape intact – Nov. 14, 2008;
Exhibit #NR-108M – Glass jar – Red security tape intact – Nov. 14, 2008;
Exhibit #NR-109M – Glass jar – Red security tape intact – Nov. 14, 2008;
Exhibit #NR-110M – Hose in Plastic Bag white security tape intact;
Exhibit #NR-111M – Hose in Plastic Bag – white security tape intact.

[53] The said document indicated that the "Maxxam job number" for the subject project was number "A907261".

[54] During her testimony-in-chief, Ms. Hay advised that upon receiving said box of exhibits from the Ontario Ministry of Natural Resources, (hereinafter referred to as "the Ontario samples") from the "log-in" department of her office, she took steps to examine the exhibits. She advised that at that point in time, she had occasion to review the "case synopsis" document prepared by Officer Smith, which she found in an envelope located within the box of the Ontario samples. This document was identified as the "Case Submission Form", entered into evidence in this trial proceeding as Exhibit #13. The said document was then entered as Exhibit #3 to the voir dire.

[55] Ms. Hay testified that upon perusing the box of the Ontario samples, she noticed that it contained a variety of hose, liquid and soil samples, which corresponded to the description of those samples on Exhibit #3. In describing the Ontario samples contained in glass jars, Ms. Hay noted that there were two jars containing fluid, six jars containing soil and one jar containing vegetation. She noted that in addition to the samples contained in glass jars, there were two exhibits which appeared to be "green plastic hoses".

[56] In describing the condition of the Ontario samples when she first received them, Ms. Hay testified that the fluid, soil and vegetation samples were contained in "brownish" "one litre" glass jars, with a black lid. She noted that each of the jars was sealed with tape at the top of the jar and down its side.

[57] Ms. Hay testified that after she read over the instructions from Officer Smith as to the nature of the testing requested, she proceeded to re-open the locked exhibit box and closely examine each of the jarred samples. Ms. Hay stated that in doing so she broke the tape seal on the lids of the jars and opened them.

[58] Upon opening the jars, Ms. Hay did not detect any visual or aromatic evidence that any of the samples had been contaminated with hydrocarbons. She therefore determined that the soil and vegetation samples did not need to undergo a hydrocarbon analysis in the Petroleum Properties Laboratory in Edmonton. Accordingly she decided to send the six soil samples and one sample containing vegetation to Maxxam's laboratory in Calgary, Alberta for analysis.

[59] Ms. Hay testified that after she examined each of the Ontario samples and determined the testing to be undertaken, the samples were sent to Maxxam's "log-in" department where information was entered into the company's computer system known as the "Laboratory Information Management System (LIMS)". She advised that the samples were "logged into" this system such that each sample was assigned a Maxxam sample number and a code indicative of the test to be performed on the sample. Ms. Hay testified that once she received the Maxxam sample numbers from the "log-in" department, she retrieved the samples from a locked cabinet for which she had the key and placed a printed label on each of the subject exhibits setting out the Maxxam number for the sample and the test code for the subject sample.

[60] During the course of her testimony, Ms. Hay referred to a document which she identified as "an entry sheet" for purposes of refreshing her memory. In describing the contents of the entry sheet during examination-in-chief, Ms. Hay testified as follows:

Q: And what does it have on it?

A: It has the client's name, in this case, is Mr. Smith. It has each of our sample numbers that we gave and his sample numbers, the client numbers, deadlines for the due dates of the analysis. It has what we call test codes that are assigned for the analysis for each sample.

Q: And how is this thing generated?

A: Once the, I'll call it our LIM System. It's called a Laboratory Information Management System. It is quite elaborate, and so once these samples are logged in and the tests are logged in, then you can print this out from our LIM System. You can print just as a report or anything would be printed, it would be printed out from the LIM System.

[61] In referring to the "entry sheet" generated by the LIM System, Ms. Hay was able to testify as to the Maxxam numbers assigned to each of the Ontario samples. In that regard, Ms. Hay advised of the numbers assigned, as follows:

Exhibit #NR-101M – fluid sample from pipeline - Maxxam no. N77177;
Exhibit #NR-102M – fluid sample from tank – Maxxam no. N77178;
Exhibit #NR-103M – soil sample from pit, surface – Maxxam no. N77186;
Exhibit #NR-104M – vegetation sample - Maxxam no. N77196;
Exhibit #NR-105M – soil sample from pit – 10 cm. – Maxxam no. N77197;
Exhibit #NR-106M – soil sample-from pit-20cm. – Maxxam no. N77198;
Exhibit #NR-107M - soil sample-control pit-surface-Maxxam no N77199;
Exhibit #NR-108M – soil sample-control pit-10cm. – Maxxam no. N77200;
Exhibit #NR-109M – soil sample-control pit-20cm. – Maxxam no. N77201;
Exhibit #NR-110M – green hose seized from site – Maxxam no. N77271;
Exhibit #NR-111M – controlled green hose – Maxxam no. N77296.

[62] During examination-in-chief, Ms. Hay testified that the LIM System produced sticker-style labels for each of the samples and upon receiving the labels she labelled each sample "bottle" with the Maxxam number, noting that she was careful in ensuring that she did not mistakenly put a wrong label on a particular jar.

[63] Ms. Hay testified that upon deciding to transfer the Ontario soil and vegetation samples to Maxxam's Calgary laboratory for analysis, she took the following action with respect to those samples:

A: Okay, then what I had to do is pack them up into, we use a locked box, basically just a tool box, a big tool box. So I had to wrap them, re-wrap them in bubble wrap or whatever and pack them in there and then I ship then through our shipping department to Calgary. It actually has, like a lock on the front and then the key goes in a separate bag with the courier to attention of the project manager in Calgary.

Q: And do you know who that was in this case?

A: Jennifer Rispler.

Q: So she received two packages, one with a box locked and one with a key?

A: Yes.

Q: So Ms. Hay, if I have got this right, you shipped the very last jars that you received, you have received them in sealed and you have shipped them now to Calgary?

A: Yes.

Q: While in your, from the time that you unsealed them to the time that your sent them, who, other than yourself, had access?

A: No one. I have the keys to the cabinet that they're stored in.

Q: And did you do any manipulation of the samples in any way?

A: No.

[64] During cross-examination, Ms. Hay acknowledged that she first received the Ontario samples sometime in December 2008. She acknowledged that she did not receive them directly from the courier, noting that the box containing the samples would have been first received by a representative of Maxxam's shipping department.

[65] In response to questions posed by the defendant' counsel, Ms. Hay acknowledged that the lid on the subject sample jars was secured such that a seal in the form of tape ran from the top of the jar and down its side. She acknowledged that in these circumstances it would be possible to lift the tape up from one side of the jar and open the lid of the jar without breaking the tape.

[66] Ms. Hay agreed with the suggestion put to her that the Ontario samples of soil and vegetation were sent to Maxxam's Calgary laboratory in February 2009. The witness agreed that in transferring these samples to Calgary, she filled out an internal continuity report. As stated above, Ms. Hay identified this report as the form generated by Maxxam, entered as Exhibit #4 to the voir dire. It is noted that the said Maxxam Internal Continuity Report for legal samples (transfer between Maxxam staff) makes reference to Maxxam job # A907261, referable to the Ontario samples.

[67] During cross-examination, Ms Hay identified her signature within the first entry box on Exhibit #4. She acknowledged that the transfer memorandum in the box recorded the transfer of certain samples containing Maxxam sample numbers from her custody to that of Mohamed Daher of Maxxam's shipping department, on February 19th, 2009. She stated that this transfer was connected with her actions in shipping the Ontario soil and vegetation samples to Maxxam's Calgary laboratory to the attention of the Calgary project manager, Ms. Jennifer Rispler. She acknowledged that the according to the continuity report the samples were received by Mr. Daher on February 19th, 2009 and sent by him to the courier on the same day. She further noted that the continuity report indicated that the samples were then transported to Calgary, to the custody of Ms. Rispler, on February 20th, 2009.

[68] In response to questions posed by the counsel for the defendant, Ms. Hay stated that she sent two packages to Calgary to Ms. Rispler's attention. One package contained the locked box, in which the Ontario soil and vegetation samples were secured and the other package, which was sent separately, contained the key to the locked box. Ms. Hay testified that according to the continuity report it appeared that Ms. Rispler signed the continuity memorandum acknowledging her assumption of custody of the box containing the specified Ontario samples, on February 20th, 2009.

[69] Ms. Hay was then asked to look carefully at the entries on the internal continuity report relative to when the locked box was sent from Edmonton on February 19th, 2009 to when it was received by Ms. Rispler in Calgary on February 20th, 2009, and advise as to whether she saw a problem with anything that had happened. In response to that question, she initially said that she did not see a problem however she later acknowledged that her continuity memorandum indicated that she had sent eight labelled samples to Calgary whereas the continuity memorandum of Ms. Rispler dated February 20th, 2009 indicated that she had only received seven labelled samples.

[70] During re-examination, Crown counsel posed further questions to Ms. Hay relative to the apparent discrepancy on Exhibit #4, relative to the continuity of the Ontario soil and vegetation samples on February 19th and 20th, 2009, as follows:

Q: Ms. Hay, my friend took you to your initial, this, in this continuity report, your initial sign-off and handover to Daker (sic.), and pointed out that there is eight samples. I am just wondering, if you look at sample N77178, do you know, is that a sample that was supposed to go to Calgary?

A: No. It's a water sample.

Q: So what do you suspect happened here?

A: That I put something on there that shouldn't have been. I made a mistake.

Q: And you mean, in the sense that you wrote 178 down on the sheet but in fact 178 never went to Calgary?

A: Yes.

Q: And so you suspect, I take it then, that when Jennifer Rispler opened a package and identified seven samples that she was, she was accurate?

A: Yes.

[71] In the course of further cross-examination, the counsel for the defendant asked Ms. Hay a series of questions pertaining to a document which she was using to refresh her memory, which she had previously identified as an "entry sheet". The questioning in that regard proceeded as follows:

Q: I just want to ask you maybe some quick questions about this [referring to the 'entry sheet']. At the top on the right-hand side of that sheet in the bold, it says 'Required Date', and it says 'March 4, 2009 … five o'clock p.m.'. What is that referring to?

A: All our tests try to be, we try to do them within a certain timeframe.

Q: Yeah?

A: And so you have to put some kind of due date for the lab to be able to schedule their work.

Q: Okay, and that's obviously, so you see that same date again down the middle of the page where it says 'Deadline Date'. Is that right?

A: Yes, Yes.

Q: Okay, and that's the date that Maxxam Analytics would have wanted the testing to be done by, is that correct?

A: Yes.

Q: Okay. As far as you were aware at least, the samples were sent to the lab in Calgary in February 19th and received February 20th …

A: Uh-humm.

Q: And the testing was done sometime towards the end of that month, is that correct?

A: Yes.

[72] The defendant's counsel then asked Ms. Hay the following questions relative to her understanding that the testing on the Ontario soil and vegetation samples had been done in the month of February 2009:

Q: Was it because of some correspondence you had, or purely documents you have seen that gave you the impression, is that fair to say? You weren't there personally, is that right?

A: No.

Q: Okay, it was information you would have received during the course of your employment, is that right?

A: Well, I can check progress on our LIM system; it's not an issue so…

Q: And when you checked it, that's when you see the testing appeared to have been done…

A: I don't know; it was quite a long time ago. I don't recall checking on a regular basis.

[73] In closing his cross-examination of Ms. Hay, the counsel for the defendant showed the witness a copy of Exhibit B, the subject Certificate of Analysis. Ms. Hay testified that she had seen the document before, describing it as a report from their LIM System. She noted that the report was dated May 11th, 2009. In this regard, she agreed with the suggestion of the defendant's counsel that the date on the certificate likely represented the date when the report was ultimately produced as a result of the subject project.

[74] Ms. Hay testified that she produced the LIMS report of the analysis of the subject soil and vegetation samples, on May 11th, 2009. In this regard, she stated that she would not have been able to print the Certificate on that date if all of the testing on the subject samples had not been completed and "validated" by that time.

(ii) The Testimony of Ms. Lisa Anne Thum

[75] At the outset of Ms. Thum's testimony during this Voir Dire, Crown counsel tendered Ms. Thum's curriculum vitae as an evidentiary exhibit. The said document was then admitted in evidence as Exhibit #1 to this voir dire.

[76] Ms. Thum testified that she was employed by Maxxam as the manager of its "Inorganics" Laboratory within its Environmental Services Division, located in Calgary, Alberta. She advised that she had been employed in that position since September 2006. She stated that Maxxam was the largest privately-owned laboratory in Canada, and that it operated laboratories across Canada in most major centres.

[77] Ms. Thum testified that as manager of the "Inorganics" Laboratory she was responsible for three separate laboratories in "inorganics"; "the soils lab, the water lab and the metals lab". She advised that in her position she was primarily charged with the responsibility of establishing and maintaining quality control standards relative to the testing of various samples in the laboratory. She stated that in that regard, she trained employees and conducted internal audits. She went on to state that her position within Maxxam required her to write and update the Standard Operating Procedures for the "Inorganics" Laboratory (which she described as the "SOP") establish and maintain a budget for the laboratory, ensure that the employees who she manages have all the proper equipment to perform their duties and that appropriate safety protocols were established and enforced within the laboratory.

[78] During her testimony-in-chief, Ms. Thum explained the difference between organic and inorganic chemical analyses as follows:

Organic analysis encompasses analytes that have usually a carbon chain attached to it, so extractible hydrocarbons, benzene, toluene have a carbon chain, and so that's part of the organics group, whereas 'inorganics' group is more metals and then the individual anions, so like a negatively charged.

She explained that the detection of elements like chloride, calcium, magnesium, potassium or sodium in any given soil sample would involve an inorganic analysis, as those chemicals are individual elements. She distinguished that type of analysis from an organic analysis of a soil sample, which would involve a scientific process to determine whether the sample contained a substance which had a "carbon chain on it", such as oil or PCBs.

[79] Ms. Thum testified that in the course of her current occupation as a manager, she does not regularly participate in the process of the chemical analysis of various samples of water or soil in the laboratory. She remarked, however, that her job is still "very hands on", noting that she spends about 50 per cent of her time in the laboratory. In that regard, she stated that she monitors processes in the laboratory to ensure the execution of proper methodology in testing any particular item, and helping her staff prepare for both internal and external audits of the procedures being undertaken.

[80] Ms. Thum testified that over the course of her career, she had worked in various laboratories, conducting "all of the analyses at one time or another". In this regard Ms. Thum's curriculum vitae indicates that she has worked as a lab technician in a "soils lab", an analyst in an "'inorganics' lab, an analyst in a "trace organics lab", a senior analyst in an "inorganic water lab" and as a supervisor in a "trace metals laboratory".

[81] In discussing her experience in inorganic laboratories, Ms. Thum testified as follows:

I started off working in the soils lab grinding dirt actually. And so I've done the saturated paste extract, PHEC. When I was an analyst in the water lab I ran the IC [which she later explained was the acronym for the ion chromatograph instrument] and ran chloride sulphate, nitrate, nitrite. And then when I was in the metals lab I also ran the ICP [which she later explained was the acronym for the inductively coupled plasma instrument] as well.

[82] During her testimony, Ms. Thum confirmed that the "inorganics" laboratory which she managed conducted the analysis of the Ontario soil and vegetation samples in the proceeding before the Court. She confirmed however, that she did not have any direct involvement in the processing or analyzing of the subject samples.

[83] Ms. Thum testified that the analyses conducted on the Ontario samples were routine in nature. In this regard, she advised that her laboratory conducts "tens of thousands of inorganic soil analyses per year". In particular Ms. Thum stated that her laboratory conducted "soluble ion" tests on approximately 35,000 samples in 2011. She noted that the soluble ion test was one of the tests which had been conducted in her laboratory on the Ontario soil and vegetation samples.

[84] Ms. Thum testified that in addition to the soluble ion test, the analysts in the Calgary "inorganics" laboratory conducted an "elemental" or "metals" analysis of the seven Ontario samples. In this regard, she stated that this particular test is a common test which is requested. She noted that in 2011 her laboratory conducted about 30,000 such elemental analyses of various types of samples.

[85] In generally describing the process for the conducting and recording of the results of the various analytical processes in Maxxam's Calgary "Inorganics" Laboratory, Ms. Thum proffered the following evidence in response to certain questions posed of her by Crown counsel:

Q: And I guess when, when you, most of us think of a laboratory you've got, you know, people in lab coats and they're, they've got a Bunsen burner and some test tubes and they're writing things down in a, in a note book. Is that the picture of, is that picture accurate?

A: No. It's kind of a cross between that and CSI. So we still have, you know, analysts in lab coats. We don't have any Bunsen burners though. We have more instruments connected to computers. The prep lab still has analysts, you know, doing more hands on stuff. But for the analysis portion for the chloride and the calcium, magnesium, sodium, potassium it's an instrument attached to a computer.

Q: And so the results that are created by Maxxam are they, you know, written down in a notebook by a, by a lab technician? Or, or how are they produced?

A: No. They're downloaded electronically. So the samples go onto the instrument, the sample identification is scanned into the instrument and then it's downloaded directly into our LIM system.

Q: And what is LIM system?

A: It's a Laboratory Information Management system. So it's just basically the computer system that all of our data goes into to compile it to generate reports that go out to the client.

Q: So there's no actual, lab technicians aren't writing down results per se. It's, they're, they're inputting samples into an instrument and, the results are electronically fed to this LIM system. Is that better?

A: Correct.

Q: Is that how it works?

A: Yeah. Yep.

[86] At this point in Ms. Thum's testimony, the Court embarked on a voir dire within the voir dire to determine whether or not Ms. Thum might be declared an expert in the general field of the inorganic chemical analysis of soils and in the specific field of the process employed by the Maxxam Inorganics Laboratory in conducting such analyses. Following the conduct of the voir dire pertaining to Ms. Thum's qualifications, I declared her as an expert for the purpose of proffering opinion evidence relative to the process employed by Maxxam in conducting an inorganic chemical analysis of each of the seven soil samples delivered to that company by officials of the Ministry of Natural Resources of Ontario, relative to this proceeding.

[87] Following my said ruling, Ms. Thum proceeded to describe and explain the scientific process involved in analyzing the chemical composition of the seven Ontario soil and vegetation samples in this case. That process and Ms. Thum's extensive evidence in that regard was fairly summarized in paragraphs 10 to 28 of the Factum prepared by the Crown, being part of Exhibit #5. The counsel for the defendant acknowledged the accuracy of the summary of Ms. Thum's evidence set out in the Crown's Factum in paragraph 8 of the Defendant's Factum entered as Exhibit #6 to this voir dire, where counsel stated as follows:

Sometime after December 2008 and during the course of the next few months, the Analyses are a synthesis of the various complicated tests which were run on the samples collected by Jim Smith in November 2008 – this intricate and complicated scientific process is set out in paragraphs 11-28 of the prosecution's factum and was outlined in Ms. Lisa Thum's evidence.

[88] The summary of Ms. Thum's evidence regarding the process involved in analyzing Ontario samples in Maxxam's "inorganics" laboratory as set out in paragraphs 10 to 28 of the Factum of the Crown, reads as follows:

10. Salts are chemicals that dissolve in water to produce an anion (negative ion) and a cation (positive ion). The cations are also called metals.

11. The soil samples were subjected to many different analyses; however as certain salts are prevalent in oil field fluids, much of the evidence focused on the tests for these salts. Of particular interest here was the anion – chloride (Cl) and the cations – Calcium (Ca), Potassium (K), Magnesium (Mg) and Sodium (Na).

12. The cations were analyzed twice using two slightly different methods, both of which use the inductively coupled plasma optical emission spectrometer (ICP). The anions were analyzed using ion chromatology [IC]. Each of these tests is done approximately 30,000 times each year at this lab.

In this regard, in paragraph 12 to his Factum, Crown counsel further summarized Ms. Thum's evidence, by noting that the cations - calcium, potassium, magnesium and sodium, would have undergone both a soluble ions analysis and an elemental analysis using the inductively coupled plasma instrument and that the anion chloride would have undergone a soluble ions analysis using the ion chromatograph instrument.

13. The first step in the analysis was to dry the soil samples in an oven. The purpose of this step was to remove the water so all samples could be compared on an equivalent dry weight basis. After drying, the samples were ground to a uniform size.

Soluble cations analysis

14. For the soluble cations analysis, distilled water is added to the dried and ground samples to create a saturated paste. The paste is left for hours so that the salts that are easily soluble will dissolve into the distilled water. The paste is then vacuum filtered to remove the water. The water containing the salts is sent to the water lab to analyze for Chloride and to the metals lab to analyze for the Calcium, Potassium, Magnesium and Sodium cations.

15. Prior to the actual analysis, the water samples may require dilution. The analyst takes a portion of the sample and places it in an instrument called the 'auto-diluter', which dilutes the sample if required. The analyst's role is to place the sample into the auto-diluter and scan the sample identification into the instrument.

16. Finally, the samples are placed in the ICP. The instrument analyzes the sample and reports a concentration of cations to LIMS [the Laboratory Information Management System].

17. The six soil samples and the vegetation sample that were submitted to Maxxam were run as a set of samples (the Ontario samples). During the analysis of this set, the following quality control samples were also analyzed to ensure the instrument was functioning properly:

Standards A liquid with known concentrations of each metal that prove the instrument is reading correctly…

Method Blank Distilled water that goes through the entire analytical process from the beginning to ensure that there has not been any contamination in the preparation steps leading up to the analysis…

Spike Another liquid sample with known concentrations of each metal…

RefMat A soil sample with known concentrations of metals that goes through the entire process from saturated paste on…

Matrix Spike One of the soil samples from Ontario with liquid added at a known concentration. The purpose of this test is to see if there is anything in the soil samples that would interfere with the accuracy of the reading…

Duplicate One of the soil samples from Ontario is run twice…

18. In summary, the ICP instrument is designed to accurately measure the concentration of metals in the samples it analyzes. The ICP was calibrated before analyzing the Ontario samples, and the quality control analyses noted above were completed at the same time as the Ontario samples. The quality control samples test and retest, in different ways, the accuracy of the analysis, not just in the instrument, but from the beginning of the process. LIMS is aware of the expected results from each of the quality control analyses. If any of the results differ from the expected result, LIMS catches the discrepancy and flags it. If this happens, the sample is re-analyzed.

Elemental cations analysis

19. The metals in the soil samples are analyzed a second time using a different process called the elemental analysis. For this analysis, acid is added to the dry soil samples and the mixture is heated to dissolve metals contained in the soil. The soluble test discussed previously simply used distilled water to determine the amount of salts that were readily soluble. The acid digestion used in this test is far more rigorous and determines how much metal in the soil is 'environmentally available'.

20. During the elemental analysis of the Ontario samples, the same quality control samples as described in the soluble cations analysis were run, including the Calibration, Blank, Spike, RefMat, Matrix Spike and a Duplicate. All of the quality control samples analyzed during this set were within the acceptable standards.

21. Due to the more rigorous digestion of metals in the elemental analysis, there will always be a higher quantity of metals extracted from the soil when compared to the soluble cations analysis. However, the results from the elemental analysis are reported using different units, so it is not necessarily obvious when looking at the results.

22. Where the results are elevated in the soluble cations analysis, they will also be elevated in the elemental cations analysis. Accordingly, the elemental analysis provides an opportunity to verify the accuracy of the soluble cations analysis.

Soluble anions analysis

23. The early stages of sample preparation for soluble anions analysis are the same as for soluble cations. The same liquid sample that is vacuum filtered from the saturated paste is used for both analyses.

24. The soluble anions analysis is done in the waters laboratory on an instrument called the ion chromatograph [IC]. The instrument is calibrated before the set of samples is run, and a number of quality control samples are intermixed in the set to ensure the instrument is operating properly and to ensure no contamination was introduced at any point in the process. Similar to the ICP analysis, the quality control samples include the Method Blank, Spike, RefMat. Matrix Spike and a Duplicate.

25. All of the quality control samples analyzed during this set were within the acceptable standards.

Ion Balance

26. The ion balance test is another quality control check that is done at the Maxxam lab. When salts dissolve in water there has to be an equivalent amount of cations and anions in the water. For example, when table salt, or sodium chloride dissolves, there must be one sodium molecule for every chloride molecule.

27. After the soluble anions and soluble cations analyses are complete, the LIMS data is reviewed in a status check to ensure that the ion balance is within tolerable limits.

28. During the initial ion balance check of sample N77200 [Maxxam number], the anions and cations did not balance. This discrepancy was caught and the sample was re-analyzed. It was determined that there was likely a dilution error during the first run. After re-analysis, the ion balance worked out and the concentrations are reported in Exhibit B.

[89] In answer to a question posed by Crown counsel as to what happens with the data obtained from, for example, a soluble metals analysis conducted through the use of the ICP, "assuming that there isn't any problems with the test samples", Ms. Thum responded as follows:

It gets downloaded into our LIM system. Once all the analyses is in the LIM system then it goes through our status check program. So the status check program compares the chemical relationships from the different analyses. So it'll look at things like the ion balance. So when you add up the sum of the cations and the anions they should balance. And so it'll look at that so it's a second level check to determine whether or not the data is acceptable. Then once that's done then it goes into the report program and gets reported to the client.

[90] During the second day of her testimony on February 15th, 2012, Ms. Thum identified the document described on its face as a Certificate of Analysis, as the LIM System report. This 16-page document was received into evidence on the voir dire as a lettered exhibit only, and marked as Exhibit B. It is noted that the report is printed on the stationery of Maxxam Analytics International Corporation, operating as Maxxam Analytics of Edmonton, Alberta. The document is addressed to the Ministry of Natural Resources, 659 Exeter Road, London, Ontario, Canada N6E 1L3, to the attention of James Smith. Furthermore, the document indicates that it pertains to Maxxam job #A907261. It is dated May 11th, 2009.

[91] Upon initially identifying the said document, Ms. Thum engaged in the following question and answer exchange with Crown counsel:

Q: So you have been, we have been talking about the LIM System, and I have in front of me, I guess I will show it to you, do you recognize this document?

A: Yeah, it was the report that was generated from the analysis that was done at the lab.

Q: And so where, where is this report – how do you print this report off?

A: It comes out of our LIM System directly so there is a report program in the LIM System that compiles all the data into a tabular format.

[92] Once the Certificate of Analysis was entered into evidence as Exhibit B, Ms. Thum entered into the following question and answer exchange with the prosecutor pertaining to the circumstances surrounding the making of the document:

Q: So Ms. Thum, I have asked you to turn, I think you have already identified that during the analysis, the data ends up coming from the, from the instrument and it goes into the, into the LIM System electronically?

A: Correct.

Q: Now can you, once it's in the LIM, can you go in there and manipulate it, change things around?

A: No. So once the analyst is done running their test, then they review the data and once it goes to LIMS, then they have to enter a password into the LIM System which puts their initials and the date and time that it was approved and then a second person reviews the data and they also put their password into the LIM System and it puts the date and the time and their LIMS initials, and in order to change the data, you have to actually put a password in and it would stamp it with the date and time of who then had unapproved the data.

[93] In perusing the contents of Exhibit B, Ms. Thum testified that pages 5 through 8 therein represented the results of the soluble cation analysis on each of the seven Ontario soil and vegetation samples. Furthermore, Ms. Thum advised that the results of the acid digested metals analysis (also known as the elemental cations analysis) of the seven Ontario samples were set out on pages 9, 10 and 11 of the said exhibit.

[94] Ms. Thum testified that the information contained in pages 15 to 20 of Exhibit B represented the results from the Quality Assurance-Quality Control ("QAQC") samples which were "run for each test", noting the certificate "lists either the recovery, the value and what the limits are". When asked what the word "recovery" meant as shown on the "Qualtiy Assurance Report" in Exhibit B, Ms. Thum stated as follows:

It's an indication of accuracy so it's basically, if you're looking at a result that should be 100 milligrams per litre, it's how close to that result you are so it's basically the result that was gotten at the instrument divided by what the true value is times 100".

[95] Ms. Thum closed her examination-in-chief by proffering the following opinion evidence relative to the accuracy of the analytical results reported in Exhibit B, as follows:

Q: And Ms. Thum, you have had a chance to look through Exhibit B as well as some of the raw data from your lab. What's your, you know, what's your view on the reliability of Exhibit B as a result of the analysis that your lab did?

A: I think they are good so based on the QAQC run from each of the test. They are all within the allowable limits so that indicates that the data is good. The ion balances for all of the samples are within allowable limits so that also indicates that the data is good. And then, the rough correlation between the elemental versus the soluble analysis is also good as well.

Q: And in terms of the analysis that you're looking at here, are any of these abnormal for your lab to be handling?

A: The analysis themselves?

Q: Yes?

A: No, it's very routine analysis. We do a lot of them all the time. Soluble analysis is probably 30% of the work that we do in the analytics department so it is something that analysts do all the time.

[96] Ms. Thum was cross-examined by defence counsel Mr. S. Kim on two separate occasions during the course of the voir dire; once during the voir dire within the voir dire relative to the Crown's application to have Ms. Thum declared an expert witness, and once at the end of her testimony-in-chief during the main voir dire.

[97] During the course of Ms. Thim's cross-examination during the voir dire pertaining to her qualifications, Mr. Kim engaged in the following question and answer exchange pertaining to Ms. Thum's independence relative to her opinion as to the overall accuracy of the results of analytical work conducted by the laboratory which she managed:

Q: …So if in any way any of the, and I, I think Mr. Wilkie had asked you approximately how many people work under you and you, you estimated about 50 people. Is that right?

A: Um hmm.

Q: Okay. And amongst those 50 people at any time if, if protocols weren't being followed or accuracy was perhaps some, somewhat in doubt then it's fair to say that would reflect poorly on you?

A: Yes.

Q: Okay, so when Mr. Wilkie then is asking you questions just about testifying as an expert on the Maxxam Analytic process is it fair to say you likely wouldn't come to court and say that there's flaws in the process because that would reflect badly on you?

A: Well I don't quite know what you're getting at.

Q: Well I'll put it like this for instance. If there are flaws in the process…

A: uh-hmm.

Q: …or potential errors…

A: uh-hmm.

Q: …that your staff were making it's not like you're going to come to court and testify about it. Is that fair to say?

A: Well we have checks and balances in place to, to ensure that the final report is accurate.

Q: Sure. But if those checks and balances weren't being followed, what I'm suggesting, you certainly wouldn't come to court and testify about that. Is that fair to say?

A: Probably.

Q: Probably not, you mean? Like, 'no' you would not come and testify about that?

A: Correct.

[98] During cross-examination at the conclusion of her examination-in chief on the main voir dire, Ms. Thum reiterated her testimony that she did not have any direct involvement with the analysis of the seven Ontario samples in the subject proceeding. She stated that she was not involved in the initial collection of the samples, noting that Maxxam's involvement with the samples only began when it received the samples from the Ministry of Natural Resources.

[99] In this regard, Ms. Thum agreed with the suggestion of the defendant's counsel that the "QAQC" protocols in place at Maxxam's "inorganics" laboratory in Calgary are for internal processes only and that such protocols would not be able to detect the existence of any potential "cross-contamination" of the samples which might have taken place prior to the time of the testing in the laboratory.

[100] Ms. Thum closed her testimony through cross-examination by acknowledging that her opinion that the results of the analysis of the Ontario samples were accurate was based on the testing processes and protocols applied to the subject soil and vegetation samples, once they had been placed in the custody of the "inorganics" laboratory.

The Law

(i) Relevant Statutory Provisions

[101] In this proceeding the Crown seeks an order from the Court admitting the LIMS report, identified as Exhibit B to the voir dire, into evidence for the truth of its contents. In this regard, the Crown submits that the report is admissible under the business records exception to the hearsay evidence rule, contained in section 35 of the OEA.

[102] The following subsections of section 35 are relevant to this proceeding:

35(1) In this section,

'business' includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise;

'record' includes any information that is recorded or stored by means of any device.

(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.

(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 same.

(4) The circumstances of the making of such a writing or record, including the lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility.

(ii) Relevant Common Law

[103] In my view, the leading case pertaining to the interpretation of the business records exception to the hearsay evidence rule codified in section 35 of the OEA, is Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd., et.al., [1977] O.J. No. 2226 (Ont. H.C.), hereinafter referred to as "Setak". In this decision, Griffiths J. of the Ontario High Court of Justice interprets the provisions of section 36 of the Evidence Act, R.S.O. 1970, c. 151, the predecessor of section 35 of the OEA. The principles enunciated in this decision relative to the interpretation of the statutory business records exception to the hearsay evidence rule have withstood the test of time and are binding on me.

[104] In Setak, supra. Mr. Justice Griffiths reviewed the history behind section 36 of the Ontario Evidence Act, noting that it was enacted in 1966 and amended in 1968. He stated that the Ontario section was modelled on and closely resembled the wording of an American enactment known as the "Model Act for Proof of Business Transactions", drafted in 1927. This version was adopted by the state of New York in 1928 and the Model Act became federal law in the United States in 1936. According to Mr. Justice Griffiths the statutory business records exception to hearsay evidence was developed "to ameliorate the difficulties which confronted businessmen under the common law in attempting to introduce in Court routine commercial records as proof".

[105] In Setak, the plaintiff sought an order of the court in this civil proceeding, to permit the admission of minutes of certain business meetings between the parties for the truth of their contents, under the authority of section 36 of the said Ontario Evidence Act. The Court granted the plaintiff's application and in doing so rendered an opinion as to the proper interpretation of many parts of the legislative provision.

[106] First of all, the jurist noted that section 36 was "cast in very broad terms to encompass practically every type of writing utilized in connection with any business". In paragraph 33 of the decision he stated as follows:

Thus, in current practice, records kept by individuals carrying out any calling, including records of organizations such as churches and other non-profit organizations, may be admissible under this section, so that whatever the original intention of the Legislature, the section itself seems to have been drafted in very broad terms.

[107] In paragraphs 39 and 40 of his decision, Griffiths J. applied the provisions of section 10 of the Interpretation Act, R.S.O. 1970, c. 225, in deciding that section 36 of the Evidence Act be interpreted both largely and liberally. In doing so, he made the following comments at paragraph 40 of the decision:

In my view, if the writings or records offered in evidence fall within the broad wording of s. 36 and satisfy the criteria of that section, then they should be admitted, even though they do not fall into the category of what are commonly considered to be business records, such as ledger accounts, time-cards, pay-roll records, and other routine commercial records at which the legislation was primarily, but obviously, not exclusively aimed.

[108] In considering the proper interpretation of subsection 36(4) of the Evidence Act, the predecessor to subsection 35(4) of the OEA, Griffiths J. made the following ruling:

…In my view once the writings or records meet the criteria of s. 36, the Court has no discretion as to whether or not they should be admitted. It seems to me that all of the evidence should be considered and this in itself is a sound reason for not excluding the minutes at the time of their admission, solely because it appears on the evidence of the witness testifying that there may have been some motive to misrepresent or even that the writings were maintained for purely self-serving purposes, because when all the evidence is in and all of the circumstances surrounding the making of the writing may then be considered, the Court may well conclude on balance that the writings or records were perfectly reliable and accurate.

[109] In considering the proper interpretation of subsection 36(2) (now subsection 35(2)), Mr. Justice Griffiths made the following comments at paragraph 46 of his decision:

Reverting then to the wording of s. 36, once it is clear that the writings or records were made in the course of a business in the sense that they related to the operation of a business as defined, as opposed to some purely private or personal activity, then the party intending to introduce in evidence the writings or records must satisfy two further criteria as pre-conditions to admissibility, namely, (1) that the writing or record was made in the usual and ordinary course of a particular business, and (2) that it was in the usual and ordinary course of business to make such a writing or record at the time of or within a reasonable time after the act, transaction, occurrence or event to be established by the introduction of the writing or record.

[110] In commenting upon whether it is necessary to call the maker of the business record to identify the record, at paragraph 47 of his decision, the said jurist stated as follows:

It is clear from the wording of s. 36 that it is not necessary that the maker of the writings or records be called to personally identify the documents, although in this case Mr. Dinniwell and Mr. Croil were the authors of the minutes sought to be introduced. In our Courts, the usual procedure in proving business records is to call a person with personal knowledge of the business of the party producing the records and who also has personal knowledge of the circumstances surrounding the preparation of such records. Thus, the evidence of Mr. McDermott is sufficient to identify for this purpose the minutes of the meetings which I have already described.

[111] In rejecting the American concept that a business record could not be admitted into evidence under the business records exception to the hearsay evidence rule contained in the U.S. federal statute, unless the record related to the inherent nature of the business in question, Mr. Justice Griffiths made the following comments at paragraph 50 of Setak:

…To draw a distinction between records relating to the principal business and those relating only to an auxiliary feature of the business, is not justified by the plain wording of the section. So long as the records are made in the usual and ordinary course of some phase of the business, whether principal or auxiliary, they should be admitted, in my view, according to the plain meaning of s. 36.

[112] In commenting on whether a business record within the meaning of section 36 need be one kept on a daily or continuous basis, Griffiths J. stated, at paragraph 52 of Setak, as follows:

…it is my view that there is no requirement in s. 36 that the records be kept on any daily basis or on a continuous basis. It is sufficient that they have been kept on some regular basis, and even though there may be a break or gap in the system of keeping such minutes, so long as they have been maintained in the ordinary course of business routinely reflecting, as they do here, the week to week operations of the computer system, then in my view they comply with s.36.

[113] At paragraph 54 of the said decision, Griffiths J. rendered an opinion as to the requirement that the business record be made at the time of the subject act, transaction occurrence or event or within a reasonable time thereafter, by stating as follows:

A more difficult problem as I see it, and something that was certainly referred to at some length in the argument of Mr. Lane, is that the plaintiff must satisfy the Court that the minutes were made at the time of, or within a reasonable time after, the acts, transactions, occurrences or events for which they were offered as proof. A substantial factor in the reliability of any system of records is the promptness with which transactions are recorded. Unless it appears from the context of the record, or the testimony of the witness introducing the writings or records into evidence, that the act, transaction, occurrence or event described therein occurred within a reasonable time before the making of the writing or record, then such writing or record should not be admitted for the purpose of proving those matters. Where there is evidence of some delay in the transcribing, then in each case, it would seem to me, the court must decide, as a matter of fact, whether the time span between the transaction and the recording thereof was so great as to suggest the danger of inaccuracy by lapse of memory.

[114] In considering the type of record which might be admissible as a business record under section 36 of the Evidence Act, Griffiths J. followed the decision of Brooke J. in Adderly v. Bremner, [1968] 1 O.R. 621; 67 D.L.R. (2d) 274 (Ont. H.C.), in rejecting a document containing an opinion which would be required to be adduced by an expert. In that regard, Mr. Justice Griffiths made the following comments at paragraph 59 of Setak:

…I interpret his reasons [referring to those of Brooke J. in Adderly v. Bremner, supra.] as applying to those opinions which would not be accepted as evidence unless given by a duly qualified expert. Where the minutes contain opinions of that nature, they may not be used to establish the validity of such opinions.

[115] In determining the admissibility of a business record which records a statement made to the maker of the document by an informant, which, in effect, is double hearsay, Mr. Justice Griffiths rendered the following opinion in paragraphs 60 and 63 of his said decision:

It is clear that by virtue of s. 36(4) lack of personal knowledge by the maker does not affect the admissibility of the writing or record, and that entries may be based upon information furnished to the maker by others. That seems to me to be a reasonable construction without in any way torturing the meaning of the section, and obviously the section contemplated admission of hearsay evidence. The question is, to what extent does it open the door for the admission of pure hearsay, to prove the acts, transactions, occurrences or events described in such hearsay? May the writings be used to establish as proof of the contents statements made by any third party and duly written down or recorded by an entrant acting in the regular course of business?

…The Act [Evidence Act] was intended to make admissible records which, because they were made pursuant to a regular business duty, are presumed to be reliable. The mere fact that recording of a third party statement is routine imports no guarantee of the truth of the statement, and to construe s. 36 as admitting hearsay evidence of any third party would make the section an almost limitless drag-net for the introduction of random testimony from volunteers outside of the business whose information would be quite beyond the reach of the usual test of accuracy. In my opinion, s. 36 of the Evidence Act should be interpreted as making hearsay statements admissible when both the maker of the writing or the entrant of the record, and the informant or informants, if more than one, are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.

[116] There are three Ontario cases which have been provided to me by counsel for both the Crown and the defendant, relative to the application and interpretation of section 35 of the OEA, which I find to be persuasive. These decisions, which follow the principles enunciated in Setak, supra, are [Robb Estate v. St Joseph's Health Care Centre ("Robb Estate"), [1999] O.J. No. 523 (Ont. Ct. (Gen. Div.))], Regina v. Felderhof ("Felderhof"), 2005 ONCJ 406, [2005] O.J. No. 4151 (Ont. C.J.) and Regina v. Petro Canada ("Petro Canada"), [2007] O.J. No. 5351 (Ont. C.J.).

[117] In her decision in Robb Estate, supra. E. MacDonald J. made the following comments pertaining to the principles to be applied to determine whether or not to admit business records into evidence as an exception to the hearsay evidence rule, under section 35 of the OEA. At paragraph 13 of her decision, Madam Justice MacDonald made the following comments pertaining to the proper interpretation and application of section 35:

I remind counsel of an authority referred to me earlier in this trial. It is Setak Computer Services Corporation Ltd. v. Burroughs Business Machines Ltd. et.al. (Setak) (1977), 15 O.R. (2d) 750 [(Ont. H.C.)]. In Setak, Griffiths J. canvassed the policy considerations that give rise to s. 36 (now s. 35) of the Evidence Act. I set out some principles which emerge from Setak which, I hope, will guide counsel in this case. First the record or writings must be made in the usual course of business as opposed some purely private or personal activity; second, the record or writing must have been made at the time of the event or within a reasonable time of the event; third, the circumstances surrounding the making of the document affects weight rather than admissibility; fourth, the documents, if created pursuant to a regular business duty, are presumed to be reliable; fifth, the policy consideration behind s. 35 are obvious but, for emphasis, I repeat them. It is 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; sixth, the mere fact that a document is in the possession of a party (and, as such, may appear in the affidavit of documents) does not cloak the document with proof of the truth of its contents.

[118] The principles of law set out in Robb Estate as stated above, are binding on me. I reach that conclusion on the basis that the decision follows the principles stated in Setak, supra and based on the fact that the Ontario Court (General Division) as it existed in 1999, was a court equivalent to the Ontario Superior Court of Justice.

[119] In his detailed and well written decision in Regina v. Felderhof, 2005 ONCJ 406, [2005] O.J. No. 4151 (Ont. C.J.), Hryn J., analyzed the principles pertaining to the statutory exception to the hearsay evidence rule codified in section 35 of the OEA, in the context of subsection 11(d) of the Canadian Charter of Rights and Freedoms and the principled approach to the hearsay evidence rule as developed in the Supreme Court of Canada decisions in Regina v. Khan, [1990] 2 S.C.R. 531 (S.C.C.) and Regina v. Smith, [1992] 2 S.C.R. 915 (S.C.C.) and as refined in the Supreme Court of Canada decision in Regina v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144; [2000] S.C.J. No. 40 (S.C.C.). It is important to note however, that in the course of interpreting section 35 of the OEA, in the post-Charter context, Mr. Justice Hryn continued to follow the precedents established in Setak, to the extent that those precedents did not conflict with the principled approach to the exclusionary hearsay rule.

[120] In analyzing the principles enunciated in Setak and the case law which has followed that decision, in the context of the principles enunciated by the majority of the Supreme Court of Canada in Starr, supra. Mr. Justice Hryn ruled that the reliability of hearsay assertions contained in a business record as defined by section 35 of the OEA is a factor relevant to the issue of the admissibility of the record, rather than an issue applicable to the weight to be afforded to the record. He came to this conclusion after considering the plain wording of subsection 35(4) of the OEA, in the context of the comments of Griffiths J. in Setak relative to "the underlying dangers of hearsay evidence and the requirement of reliability in interpreting section 35", in particular subsection 35(4), and the majority decision of Iacobucci J. in Starr, supra.

[121] I find the reasoning applied in Felderhof, supra. to be very persuasive. However, I note that in rendering this decision, Mr. Justice Hryn was sitting as an Ontario Court of Justice trial judge in a Provincial Offences Act proceeding over which I have concurrent jurisdiction. In that circumstance, the principles enunciated in this decision are not binding on me.

[122] In Felderhof, Hryn J. considered the following passages from the majority judgment of Iacobucci J. in Starr, supra:

Hearsay evidence is now admissible on a principled basis, the governing principles being the reliability of the evidence and its necessity.

Up to the present, this Court's application of the principled approach to hearsay admissibility in practice has involved only expanding the scope of hearsay admissibility beyond its traditional exceptions. The focus of the Court's analysis and commentary has been upon the need to increase the flexibility of the existing exceptions, and not specifically upon the need to re-examine the exceptions themselves. However, this case requires that we examine an exception to the hearsay rule and determine its co-existence with the principled approach. As I will discuss further, to the extent that the various exceptions may conflict with the requirements of a principled analysis, it is the principled analysis that should prevail.

As I have already discussed, a fundamental concern with reliability lies at the heart of the hearsay rule. By excluding evidence that might produce unfair verdicts, and by ensuring that litigants will generally have the opportunity to confront adverse witnesses, the hearsay rule serves as a cornerstone to a fair justice system.

In Khan, Smith, [1992] 2 S.C.R. 915, and subsequent cases, this Court allowed the admission of hearsay not fitting within an established exception where it was sufficiently reliable and necessary to address the traditional hearsay dangers. However, this concern for reliability and necessity should be no less present when the hearsay is sought to be introduced under an established exception. This is particularly true in the criminal context given the 'fundamental principle of justice' protected by the Charter, that the innocent must not be convicted' R. v. Leipert, [1997] 1 S.C.R. 281, at para. 24 quoted in R. v. Mills, [1999] 3 S.C.R. 668, at para. 71. It would compromise trial fairness, and raise the spectre of wrongful convictions, if the crown is allowed to introduce unreliable hearsay against the accused, regardless of whether it happens to fall within an existing exception.

I hope from the foregoing that it is clear that the existing exceptions are a long-standing and important aspect of our law of evidence. I am cognizant of their important role, and the need for caution in reforming them. Given their continuing importance, I would expect that in the clear majority of cases, the presence or absence of a traditional exception will be determinative of admissibility.

All this being said, it is also clear that the logic of the principled approach demands that it must prevail in situations where it is in conflict with an existing exception.

In some rare cases, it may also be possible under the particular circumstances of a case for evidence clearly falling within an otherwise valid exception nonetheless not to meet the principled approach's requirements of necessity and reliability. In such a case, the evidence would have to be excluded. However, I wish to emphasize that these cases will no doubt be unusual, and that the party challenging the admissibility of evidence falling within a traditional exception will bear the burden of showing that the evidence should nevertheless be inadmissible. The trial judge will determine the procedure (whether by voir dire or otherwise) to determine admissibility under the principled approach's requirements of necessity and reliability.

[123] It is clear that the thrust of Mr. Justice Iacobucci's decision in Starr is that to the extent that any traditional common law exceptions to the hearsay evidence rule, including the common law business records exception, may conflict with the requirements of the principled approach to hearsay, a principled analysis should be undertaken by the trial court. In Felderhof, Mr. Justice Hryn expanded this analysis to include the statutory business records exception authorized by section 35 of the OEA. In doing so, he applied the statutory interpretation maxim that legislation is presumed to be enacted "in compliance with the norms embodied in Canada's entrenched constitution", including "the rights and freedoms protected by the Charter".

[124] At paragraphs 23 and 24 of Felderhof, Hryn J. made the following comments pertaining to the position of the defendant in that case, that the principled approach to the hearsay evidence rule be used to interpret section 35 of the OEA, as follows:

The Defence's submission that I use the principled approach to interpret s. 35 requires a consideration of reliability and necessity. In this context reliability is the more significant principle in that it is directly connected to the Supreme Court of Canada's concern in Starr (paragraph 200) 'that the innocent must not be convicted by reliance on 'unreliable hearsay'.

I have heard submissions with respect to necessity but the principle of necessity has been limited by the purpose and intention of the legislature as expressed in the language of s. 35.

[125] In paragraphs 26 and 27 of the said decision, Mr. Justice Hryn rejected the prosecution's argument that under section 35 as interpreted by Setak, the issue of the reliability of a business record "goes to weight, but not to admissibility", as follows:

With respect to the Prosecution's position, I do not agree that Setak's guidelines for admissibility are as broad and inclusive as suggested or that reliability goes to weight and not to admissibility. Setak, supra, and the cases referring to Setak and the case law generally with respect to s. 35 incorporate reliability into s. 35.

They do so through various requirements:

Record made on some regular basis, routinely, systematically

of an act, transaction, occurrence or event,

and not of opinion, diagnosis, impression, history, summary or recommendation

made in the usual and ordinary course of business

if it was in the usual and ordinary course of such business to make such record,

pursuant to a business duty

at the time of such act or within a reasonable time

and where the record contains hearsay, both the maker and informant must be acting in the usual and ordinary course of business.

[126] Furthermore, at paragraph 36 of the said decision, Mr. Justice Hryn made the following comments pertaining to the prosecution's position in that case that the concept of the reliability of a business record goes to the weight of the record and not to its admissibility:

The Prosecution's position that reliability goes to the weight and not to admissibility is not supported by Setak and the case law. It ignores the presumption against changing the common law. It ignores the presumption of compliance with constitutional norms including the 'fundamental principle of justice protected by the Charter, that the innocent must not be convicted' as stated in Starr, supra. Another fundamental principle of justice is the presumption of innocence set out in s. 11(d) of the Charter. One of the minimum requirements of the right to be presumed innocent until proven guilty stated by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103 is that 'it is the state which must bear the burden of proof'. To admit unreliable evidence as part of the prosecution's case which the defendant would then be required to answer could in that sense unfairly shift the burden of proof.

[127] Finally, the last case which I think is directly relevant to the issues I must decide in this voir dire, is the decision of Mr. Justice I.W. Andre of the Ontario Court of Justice, Provincial Offences Appeals Court, in Regina v. Petro Canada, supra. The principles enunciated in this appellate level decision are binding upon me.

[128] In this decision, the jurist allowed the Crown's appeal from a decision of Justice of the Peace M. Barnes, quashing the decision and ordering a new trial. In reaching that decision, Mr. Justice Andre found that the learned justice of the peace erred in granting the defendant's non-suit motion. Justice of the Peace Barnes' decision to grant the motion was based on his earlier decision to deny admission of both a letter from the defendant to the Ministry of the Environment and a Certificate of Analysis of the subject effluent, on the basis that those documents constituted presumptively inadmissible hearsay. What is both remarkable and compelling about Mr. Justice Andre's decision in respect of the issue of the appropriate interpretation of the provisions of section 35 of the OEA is the similarity between the facts in that case and those of the case at bar.

[129] In paragraphs 5 to 9 of Petro Canada, Andre J. set forth the background of the decision under appeal, as follows:

The Facts:

The Ministry of Environment charged Petro Canada for failing to comply with the Certificate of Approval it had previously issued to the company on October 20th, 2000, by exceeding the effluent limit for oil and grease contained in effluent discharge from an oil separator in contravention of Section 107(3) of the Ontario Water Resources Act. The Certificate of Approval stipulated that the effluent discharged would not contain solvent extractable matter of mineral or synthetic origin in excess of 15 milligrams per litre of oil and grease. The respondent contracted with a company to analyze the effluent discharged from the separator to ensure compliance with the Certificate of Approval. On March 1st, 2004, the Ministry of Environment, Halton Peel District office received a letter purportedly from Petro Canada with a two-page Certificate of Analysis attached to it which had been prepared, presumably, by the company contracted by Petro Canada to test the effluent discharged from the separator. The letter, signed by, or purportedly signed by Mr. Al Read, an Employment, Health and Safety officer at Petro Canada indicated that there had been an effluent accident at the Petro Pass facility in Brampton as referenced by the Certificate of Analysis. The letter indicated in all a discharge of 28 milligrams per litre for effluent discharged on February 5th, 2004, well above the 15 milligrams per litre standard set out in the Certificate of Approval.

The Trial:

During the trial the court conducted two voir dires to determine the admissibility of the letter and the Certificate of Analysis. Counsel for the respondent submitted that the document, or the documents could only be held to be admissible through the testimony of the author of the letter or its initial recipient. The Crown sought to introduce the letter through an employee of the respondent company as an admission against interest.

The learned justice of the peace demurred. He held, at page 46 of the transcript dated January 6th, 2004, that: 'It was not admissible before this court because it wasn't properly brought before this court. It was hearsay, to say the least.' The court proceeded to note further that: 'Now, in regards to the Crown submission that Petro Canada had by placing that particular piece of data on their log that they had acceded to the fact that it was there in evidence. That is not my view. I disagree. Petro Canada was required by an agreement with the Ministry to enter that data. Right, wrong or indifferent, that data had to be entered. They were required to do so. I can distinguish it from the case that was brought before the court in regards to the fishing logs. The fishing logs are the logs of the fishing boat captain where data that he, himself, put into that log book. It is his own data. This data here is data that is inadmissible in court and was placed on that log because they were required to place that figure there. They had no recourse to have the figure altered to dispute it. They had to place it there, and it is evidence that is inadmissible to the court.'

The Crown then called Teresa Stephenson, an official of PSC Analytical Services company, the company which was contracted by Petro Canada to identify the Certificate of Analysis. She testified that she had produced and signed the document pursuant to the company's protocol. She testified further that these documents were produced monthly and then forwarded to Adam Koscielac, an employee of Petro Canada.

The Crown sought to introduce a certificate as a record produced by PSC Analytical services and signed by Ms. Stephenson as part of her duties as a project manager with PSC. The learned justice of the peace held the certificate to be inadmissible given that Ms. Stephenson had no underlying knowledge of the laboratory tests which produced the results indicated in the Certificate of Analysis. Ms. Stephenson testified that she certified that information on the certificate before the court represents the data received on the computer regarding the test results of the samples. She indicated that she was not the analyst and that she never saw any of the samples which produced the test results indicated in the certificate.

[130] In the course of arguing the appeal, the Crown submitted that the trial justice of the peace erred in law "by failing to admit the documents in question [the letter signed by Mr. Al Read on behalf of Petro Canada and the Certificate of Analysis signed on behalf of PSC Analytical Services by Teresa Stephenson] as business records and thus exempt from the rules of evidence relating to hearsay and that alternatively the documents in question constitute admissions against interest and therefore admissible". In analyzing the issue pertaining to the admissibility of the subject documents under the statutory business records exception created by section 35 of the OEA, at paragraph 12 of Petro Canada, Andre J. stated as follows:

It is clear that the test and the recording of the test results was part of the usual and ordinary course of business of PSC Contracting Services as would the generation of a Certificate of Analysis. The fact that Ms. Nicholson [I think the learned justice meant to say Ms. Stephenson] was not involved in the test of the samples and had no personal knowledge of the process utilized to analyze the same is not fatal to the admissibility of the certificate. Indeed, such lack of knowledge, according to Section 35(4) does not affect the admissibility of the document. Indeed, once the record meets the criteria set out in Section 35, the court has no discretion as to whether or not the document should be admitted, but may merely decide to attach little or no weight to it. See Setak Computer Services Corporation Limited v. Burroughs Business Machines Limited et. al. (1977), 15 O.R. (2d) 750 at 758, (Ontario High Court).

[131] In comparing the 2005 decision of Hryn J. in Felderhof to the 2007 decision of Andre J. in Petro Canada, I find Mr., Justice Hryn's analysis to be highly persuasive, even though it is not binding on me. I come to this conclusion particularly with respect to Justice Hryn's comments that the concept of the reliability of any given business record is incorporated into the provisions of section 35 of the OEA through the application of the eight requirements of subsection 35(2), which he identified in paragraph 27 of his said decision.

[132] On the other hand, when I consider the reasoning enunciated by Andre J. in paragraph 12 of Petro Canada; the fact that the said reasoning pertaining to the proper interpretation of subsection 35(4) of the OEA is binding on me and the fact that the reasoning seems to accord with Madam Justice E. MacDonald's conclusions expressed in Robb Estate pertaining to the issue of the proper interpretation of subsection 35(4), I find that I am not able to follow Mr. Justice Hryn's ultimate conclusion that the issue of the reliability of a record tendered for admission under subsection 35(2) of the OEA is a factor to be considered in assessing the admissibility of the document, rather than its weight.

Analysis

[133] The sole issue in this voir dire is the admissibility of Exhibit B, a document printed on the stationery of Maxxam Analytics, dated May 11th, 2009 and titled "Certificate of Analysis", on the trial proper under the statutory business records exception to the exclusionary hearsay evidence rule.

[134] This document has been identified by both witnesses to the voir dire as Maxxam's "Laboratory Information Management System" ("LIMS") report. It is important to note that the Crown seeks to enter this document into evidence for the purpose of proving the results of the chemical analysis performed by Maxxam on the seven Ontario soil and vegetation samples only. For ease of identification, I will refer to the Certificate as Exhibit B.

[135] In analyzing this issue, I must remind myself that I may only consider the evidence which has been proffered to me during this voir dire, including the contents of the numbered exhibits thereto. I must further remind myself that I may not consider the exhibits to this voir dire which have been marked with a letter, for the truth of their contents. The one exception to this rule is in respect of Exhibit B itself. In my view, I may peruse that document in order to determine if its contents meet the requirements of subsection 35(2) of the OEA, as pre-conditions to its admissibility. Those requirements are itemized in paragraph 27 of Felderhof, as quoted above.

[136] In support of the proposition that in considering the admissibility of the purported business record in this voir dire I may consider not only the verbal evidence led during the voir dire but also the contents of the record in question, I rely on the dicta of Griffiths J. in Setak, where at paragraph 54 thereof, he states in part, as follows:

…A substantial factor in the reliability of any system of records is the promptness with which transactions are recorded. Unless it appears from the context of the record, or the testimony of the witness introducing the writing or records into evidence, that the act, transaction, occurrence or event described therein occurred within a reasonable time before the making of the writing or record, then such writing or record should not be admitted for the purpose of proving those matters….

[137] Accordingly, in reaching my decision on the issue before me in this voir dire, I have considered the testimony proffered by both Ms. Janet Hay and Ms. Lisa Anne Thum and the contents of Exhibit Nos. 1 to 6 and Exhibit B to the voir dire. In order to grant the relief sought by the Crown in this proceeding, I must be satisfied on a balance of probabilities by the said body of evidence that Exhibit B is in fact a business record as defined by subsection 35(1) of the OEA, and that all of the requirements for the admissibility of that record under subsection 35(2) of the OEA, as stated by Hryn J. in Felderhof, have been met.

(i) Does Exhibit B meet the definition of a "business record" as expressed in subsection 35(1) of the OEA?

[138] The term "business" is broadly defined in subsection 35(1) of the OEA. The said definition reads as follows: "business" includes every kind of business, profession, occupation, calling, operation or activity, whether carried on for profit or otherwise".

[139] According to the testimony of Ms. Lisa Anne Thum, the corporation known as Maxxam Analytics Inc., operating as Maxxam Analytics is the largest privately owned laboratory in Canada, operating laboratories across Canada "in most major centres". Ms. Thum testified that she is the manager of Maxxam's Calgary, Alberta based "inorganics" laboratory containing three separate divisions, "the soils lab, the water lab and the metals lab".

[140] The totality of the evidence before me establishes that Maxxam is in the business of conducting chemical analyses of environmental samples for clients, for profit. The undisputed evidence is that the seven Ontario soil and vegetation samples were analyzed by Maxxam's "inorganics" laboratory, at the request of the Ministry of Natural Resources of Ontario, on a contractual basis between February 20th, 2009 and May 11th, 2009. Ms. Thum advised that the Calgary "inorganics" laboratory conducts tens of thousands of similar soil sample analyses each year for many clients from across the country.

[141] During the course of the voir dire, I received both verbal and documentary evidence as to the nature of the record sought to be admitted into evidence herein. In my view the totality of the evidence establishes on a balance of probabilities, that Exhibit B falls within the definition of a "record" as stated in subsection 35(1) of the OEA. In that subsection, the term "record" is defined as follows: "'record' includes any information that is recorded or stored by means of any device".

[142] Furthermore, I received verbal evidence identifying and explaining the source of Exhibit B allegedly containing the results of the chemical analyses of the seven Ontario soil and vegetation samples. Ms. Thum explained the protocols and methodology involved in the analysis of any soil and/or vegetation samples in Maxxam's "inorganics" laboratory. She advised that as each step is taken in the analytical process, that event is automatically recorded in Maxxam's LIM system through the operation of certain scientific instruments.

[143] Ms. Thum testified that in respect of the analysis of soil and/or vegetation, the sample would be chemically analyzed by two instruments; one known as an inductively coupled plasma optical emission spectrometer and the other known as an ion chromatograph. She advised that after the sample had been specifically prepared for the analysis, it would be placed into one of the said instruments. The instrument would scientifically analyze the chemical composition of the item and automatically transfer the information determined into the LIM system, being the laboratory's universal computer system.

[144] Ms. Thum testified that once the information is input into the computer it would undergo an internal analysis, guided by its operational software. Ms. Thum advised that further quality assurance/quality control procedures would then be applied to the information and that once all of the standard quality assurance protocols had been completed, a report as to the analysis of the sample or samples could be electronically downloaded and printed through the LIM computer. Ms. Thum perused the contents of Exhibit B and confirmed that it represented the results of the analyses performed in the winter and spring of 2009 on the seven Ontario samples, by analysts from the "inorganics" laboratory which she managed.

[145] In light of the evidence received during the voir dire, I am of the view that the Crown has proved that Exhibit B, which has also been identified as the subject LIMS report, falls within the broad definition of "record" as codified in subsection 35(1) of the OEA. The totality of the evidence received on the voir dire clearly establishes, on a balance of probabilities, that Exhibit B contains information which was recorded and stored by means of an information management system, a type of "device" within the ordinary meaning of that word.

[146] Accordingly, for the reasons stated above, I find that the Crown has established that Exhibit B is a "record", which has been created by a "business" as those terms are defined in subsection 35(1) of the OEA.

(ii) Was the subject record made on some regular basis, routinely, systematically of an act, transaction occurrence or event?

[147] The totality of the evidence before me in this voir dire shows, on a balance of probabilities, that Exhibit B is an example of a document that is produced regularly by Maxxam's "inorganics" laboratory. During her testimony, Ms. Thum advised, in detail, of the process involved in analyzing soil samples in order to determine the chemical composition of such a samples.

[148] As a declared expert on the issue of the process employed by Maxxam in conducting an inorganic chemical analysis of each of the subject Ontario soil and vegetation samples, Ms. Thum advised that each of the samples underwent three different tests. Two of such tests, being the soluble cations analysis and the more rigorous elemental cations analysis, involved the use of the inductively coupled plasma optical emission spectrometer (ICP) to measure the presence of cations such as calcium, potassium, magnesium and sodium in the soil sample. The third test, being the soluble anions analysis involved the use of an instrument described as an ion chromatograph (IC), to examine the presence of the anion, chloride in the sample.

[149] Ms. Thum described these tests as routine. She advised that these types of analysis are done daily in the "inorganics" laboratory. In particular, Ms. Thum indicated that the laboratory which she manages performed approximately 35,000 soluble ion tests using the ICP instrument and the LIM system in 2011 and that during that same period of time, the analysts working under her conducted approximately 30,000 elemental cations analyses of soil samples, using the same combination of the ICP instrument with the information obtained by the machine being downloaded and stored in the LIM system.

[150] In describing the standard procedures in conducting a chemical analysis of environmental specimens, Ms, Thum advised of a very systematic process undertaken by analysts in the "inorganics" laboratory. She advised that part of her role was to write the laboratory's standard operating procedures and to perform internal audits from time to time to determine if the individual analysts were following the prescribed testing protocols. In that regard, she testified that once a particular soil sample was received by the laboratory it would undergo an number of steps in the form of drying and grinding the sample and adding distilled water to it for purposes of both the ICP test relative to the soluble cations analysis and the IC test of the water removed from the soil sample relative to the soluble anion analysis.

[151] Similarly by way of a routine and systematic procedure, the analysts in the laboratory working as a team would subject the sample to a second standard test to determine the presence of calcium, potassium, magnesium and sodium in the soils, by means of the elemental cations analysis. The test involved the addition of acid to the dry soil sample with the mixture then being heated to dissolve the metals in the sample. Ms. Thum advised that once this preparation work had taken place, the analyst would place a sample of the digested mixture into the ICP instrument for scientific analysis, the results of which would in turn be automatically downloaded into the LIM computer system

[152] Ms. Thum testified that these are the procedures used to test soil samples for cations and anions employed as a matter of standard procedure in the "inorganics" laboratory. She confirmed that these procedures and a number of other quality assurance and quality control protocols were in place in the subject laboratory in the winter and spring of 2009, when the seven Ontario samples were analyzed by the Calgary laboratory.

[153] In fact, Ms, Thum confirmed that the said standard cations and anions analyses were performed on each of the seven Ontario samples. During the course of her testimony, she reviewed the contents of Exhibit A to the voir dire containing raw data allegedly related to the testing conducted on the seven soil samples as well as the contents of Exhibit B. In reviewing these documents she was able to advise of the checks and balances in place in Maxxam's "inorganics" laboratory so as to minimize the impact of human error on the accuracy of the results. By reviewing the apparent results of the testing as reported in Exhibit B and by comparing these results with the quality control procedures conducted on certain samples, Ms. Thum rendered an opinion that the data compiled in Exhibit B, considered in conjunction with the results of the quality assurance/quality control testing, appeared to be both accurate and reliable. She noted that the ion balances for all of the samples were within allowable limits indicative of a finding that the testing of the subject Ontario samples was conducted properly.

[154] Based on her review of Exhibit B both internally and externally in conjunction with the raw data contained in Exhibit A, Ms. Thum opined that the analyses performed on the seven Ontario soil and vegetation samples appeared to be accurate. She advised that the analysis performed on the Ontario samples were consistent with the results which were detected by the use of the sophisticated instrumentation, noting that the "soluble analysis was a very routine test performed in Maxxam's "inorganics" laboratory". She noted that this type of soil analysis is performed approximately 30% of the time in the said laboratory.

[155] In conclusion, based on Ms. Thum's extensive testimony in this voir dire, I am able to conclude, on a balance of probabilities, that the information recorded into the LIM system and subsequently downloaded into Exhibit B represented a systematic procedure whereby, in routine and regular fashion, the Ontario soil and vegetation samples underwent analytical testing for cations and anions to assess their chemical composition. The testing procedures employed with respect to those samples were similar to the common testing protocols performed thousands of times each year in the Calgary "inorganics" laboratory. There were extensive and scientifically established quality assurance protocols in place to ensure accuracy of the results and Ms. Thum opined that the results obtained in respect of the Ontario samples were similar to the reliable results that are obtained by the laboratory on a regular basis in respect of the performance of routine soil sample analyses.

[156] I am satisfied that the data recorded in Exhibit B was data recorded in the same way as soil sample analyses are recorded on a daily, routine and systematic basis in the laboratory. The samples are analyzed through the use of calibrated and sophisticated instrumentation to detect the level of cations or anions in the sample. The information resulting from the analysis is then automatically downloaded into the laboratory information management system. The procedure is completely automated and therefore minimizes the impact of human error on the accuracy of the results.

[157] The various steps in the testing process are routinely entered into the laboratory computer system. Each time an analyst takes a step in the testing procedure, following the standard operating procedure in force in Maxxam's "inoranics" laboratory, that act or event is immediately recorded into the LIM system. Based on Ms. Thum's evidence, if a mistake was made by an analyst in a step in the analytical process, the mistake or oversight would be flagged by the computer such that it could be corrected.

[158] After carefully reviewing the contents of Exhibit B in the context of the totality of the evidence in this proceeding, I find that the said document contains a record of a number of acts performed by various analysts employed by Maxxam's "inorganics" laboratory, on each of the seven Ontario soil and vegetation samples, between March 2nd, 2009 and May 8th, 2009, in the process of determining the results of the chemical analysis of each of the samples.

(iii) Does the record contain information in the form of opinion, diagnosis, impression, history, summary or recommendation?

[159] The evidence before me in this voir dire establishes that Exhibit B is a compilation of a number of acts and events either performed on the Ontario samples by individual analysts employed by Maxxam's "inorganics" laboratory at the material time, or information scientifically and electronically obtained from the subject samples by the activation of either the ICP or the IC instruments connected electronically to the laboratory's computer system.

[160] There is no evidence before me that the data recorded in Exhibit B, contains statements or assertions of opinion, diagnosis, impression or recommendation. While I acknowledge that the information contained in Exhibit B might be fairly characterized as a summary or history of the various transactions which occurred over a two month period, in the course of the process employed in analyzing the subject samples, I am of the view that the record might be more properly characterized as a synthesis of raw data and scientific information, which the computer calculates after it applies certain quality assurance and quality control protocols, guided by its software, to achieve a conclusion as to the chemical composition of the samples.

[161] I acknowledge that there is a fine distinction between a synthesis of a series of acts, transactions or events, resulting in a series of conclusions based on scientific principles and a document which simply records a history of events which are not made routinely in the usual and ordinary course of business by members or agents of that business. In this case, the evidence reveals that the entries into the LIM system can only be made by Maxxam employees who are assigned a password to the computer system. An employee who seeks to gain entry to the information management system will first need to enter his/her password. This procedure bolsters the integrity of the system and ensures the continued accuracy and reliability of the information entered into the computer's data bank relative to the analysis of any given sample.

[162] In conclusion, the evidence before me discloses that the information contained in Exhibit B memorializes each step that had been taken by various analysts in the course of the process of testing the Ontario samples over an approximate two month period. The results of the testing of the soil samples are summarized on page 14 of the exhibit.

[163] The document as a whole, however, does not contain opinion or a history of or a condensed version of hearsay information gleaned from outside the confines of the Maxxam laboratory. It asserts that on a certain date a certain step was taken on a certain sample in furtherance of the determination of the chemical composition of that particular environmental sample. The document assembles all of the individual entries which are recorded on the date of the event and after all of the raw information is obtained, applies certain scientific calculations to refine the data and state the results of the calculations applied.

[164] The statement of the results is an objective process, which does not involve the application of human education or experience and thereby render a subjective opinion. The results stated are simply a communication of the information detected by the ICP and IC instruments after the samples were entered into these machines for analysis by the various analysts. The totality of the evidence establishes that Exhibit B is a document which not only summarizes the various acts or events in the overall testing process relative to the Ontario samples, but actually calculates the results using certain scientific parameters built into the computer software. Accordingly there does not appear to be any information contained in Exhibit B which would fall into the category of expert opinion evidence, in the form of a diagnosis, impression, or recommendation, which would require the adduction of such evidence through a duly qualified expert at trial.

[165] There is no question that the document records events which have taken place and which have been performed by laboratory technicians or analysts in the course of the testing process over a period of two months. The summary of these events, directly related to the testing of the subject soil and vegetation samples, is nevertheless reliable because the events are being recorded in the course of the testing and do not describe irrelevant or extraneous information communicated by an informant outside of the boundaries of the Maxxam "inorganics" laboratory. The fact that only authorized personnel may access the LIM system is testimony to the integrity of the system and the information that is likely to be recorded in the system.

[166] Therefore, my conclusion with respect to this requirement is that Exhibit B represents a synthesis of objective information only recorded by individuals who were apparently professionally responsible for the integrity of the testing process. The document does not contain any subjective information which might be interpreted in a variety of of ways and therefore be considered to be unreliable. This particular requirement for admission of the subject Certificate has therefore been met by the Crown on a balance of probabilities.

(iv) Was the record made in the usual and ordinary course of business?

[167] The totality of the evidence before me establishes that the record was made in the usual and ordinary course of the business of the Maxxam "inorganics" laboratory. The undisputed evidence is that upon collecting the Ontario soil and vegetation samples herein, Officer James Smith contractually engaged the services of Maxxam Analytics Inc. to conduct a chemical analysis of the soil and vegetation samples.

[168] There is credible evidence before me that the samples were eventually delivered to Maxxam's "inorganics" laboratory in Calgary, Alberta, where they were objectively analyzed using practices and procedures developed by the laboratory and routinely used by it to reliably analyze material submitted to it for chemical analysis.

[169] The only evidence before me is that sole business of Maxxam's "inorganics" laboratory is the testing and analyzing of samples of environmental material, be it soil, water or metal material. The testimony of both Crown witnesses in this proceeding shows that the "LIMS" report is a report automatically produced once the testing of a batch of environmental samples has been completed. It is a system and a record which is unique to Maxxam and its laboratory management process.

[170] The only evidence before me is that Exhibit B was generated in the usual and ordinary course of Maxxam's laboratory business. Ms. Janet Hay testified that she produced the subject LIMS report on May 11th, 2009, once she had been advised that all of the testing had been completed on the seven Ontario samples. In that regard, Ms. Hay testified that she would not have been able to print out the report on that date if all of the testing had not been completed and "validated" by that time.

[171] The evidence tendered by the Crown in this voir dire establishes this particular requirement, on a balance of probabilities. The evidence clearly shows that Exhibit B, which records a series of acts or events that took place relative to the handling and testing of the seven Ontario soil and vegetation samples throughout the first week of March 2009 and parts of the second and third weeks of May 2009, was a document made in respect of the usual and ordinary activities of Maxxam's laboratory business as opposed to some "purely private or personal activity".

(v) Was it in the usual and ordinary course of Maxxam's business to make the subject record and if so was it in made pursuant to a business duty?

[172] The evidence before me establishes that it is in the usual and ordinary course of Maxxam's "inorganics" laboratory to prepare a Certificate of Analysis in respect of soil, water or metal samples which are sent to it for purposes of chemical analysis. The Maxxam "inorganics" laboratory is in the sole business of examining and analyzing substances for its clientele. In order to effectively serve its clients, Maxxam has developed a laboratory information management system which is connected with certain precision scientific instruments, in order that it may provide its clients with timely, accurate and reliable chemical analyses of environmental substances sent to it for analysis.

[173] Ms. Thum identified Exhibit B to this proceeding. She advised that it was prepared in the format prescribed by Maxxam and produced through its Laboratory Information Management System. Ms. Hay advised that as legal project manager for the Ontario samples in this proceeding, she was responsible for determining the tests to be performed on the samples in accordance with Officer Smith's request and for purposes of ultimately producing and forwarding the results of the analyses in the form of the LIM generated Certificate of Analysis to Officer Smith.

[174] Accordingly, Exhibit B was produced through the operation of Maxxam's computer system when Ms. Hay generated the document on May 11th, 2009, signalling the end of Maxxam's contractual relationship with the Ontario Ministry of Natural Resources in respect of the subject samples. The nature of Maxxam's laboratory business is to analyze such substances and to thereafter to provide a written certificate to the client as to the results of the testing of the environmental samples. There is no question that it was in the usual and ordinary course of Maxxam's laboratory business to produce Exhibit B as proof of the completion of its contracted analytical activities with the Ontario Ministry of Natural Resources.

[175] Furthermore, the evidence on this voir dire shows, on a balance of probabilities that Exhibit B was made pursuant to a regular business duty. The testimony of the two Crown witnesses in this proceeding is that there was no one lab technician or analyst responsible for the making of the Certificate of Analysis herein. The witnesses stated that from their recollection there were between five and eleven employees of Maxxam's laboratory in Calgary who would have contributed to the completion of the analyses of the seven Ontario samples, and the subsequent production of the certificate of the analyses of the samples.

[176] Based on the totality of the evidence before me, it is reasonable for me to infer that all of the employees of Maxxam who took contributory steps in the completion of the analyses of the soil and vegetation samples and therefore participated in the making of Exhibit B, were employees of Maxxam at the time and were working as a team so as to complete the analyses of the subject samples and to produce a report of the results of the analyses in a timely fashion.

[177] There is ample evidence before me to reasonably infer that Exhibit B was made by a number of employees who pursuant to the terms of their employment worked together with a common goal; to accurately complete the chemical analyses of the subject samples and produce the results of the analyses in writing to the Ontario Ministry of Natural Resources in a timely manner. Since Exhibit B was made pursuant to a regular business duty associated with the operation of a chemical laboratory, it may be presumed to be inherently reliable in accordance with the dicta of Griffiths J. in Setak.

(vi) Was the record made at the time of the subject act, transaction, occurrence or event or within a reasonable time thereafter?

[178] In his paragraph 54 of his decision in Setak, Griffiths J. made the following comments respecting the requirement that a business record in the context of subsection 35(2) of the OEA be made within a reasonable time of the act or event in question. In that regard, the jurist stated, in part, as follows:

…Unless it appears from the context of the record or the testimony of the witness introducing the writings or records into evidence, that the act, transaction, occurrence or event described therein occurred within a reasonable time before the making of the writing or record, then such writing or record should not be admitted for the purpose of proving those matters. Where there is evidence of some delay in the transcribing, then in each case, it would seem to me, the court must decide, as a matter of fact, whether the time span between the transaction and the recording thereof was so great as to suggest the danger of inaccuracy by lapse of memory.

[179] In the case at bar, Exhibit B was dated May 11th, 2009, yet the contents of the record suggest that analytical procedures relative to the seven Ontario soil and vegetation samples, including quality assurance/quality control protocols began on March 2nd, 2009 and continued on March 3rd, 2009, March 4th, 2009, March 5th, 2009, March 6th, 2009, March 9th, 2009, May 7th, 2009 and May 8th, 2009. Accordingly, it would appear that the making of the document, in totality, spanned over a period of slightly more than two months.

[180] Furthermore, there is no evidence before me as to the reason for the delay in the completion of the analyses between March 9th, 2009 and May 8th, 2009. At first blush, it would appear that Exhibit B was made over a period of two months after the initial recording of the testing procedures on the seven Ontario samples on March 2nd, 2009. That period of time could not be considered to be contemporaneous with the time of the act, transaction, occurrence or event some two months earlier, however, I am of the view that in light of the extensive testing and quality assurance protocols in place at Maxxam's "inorganics" laboratory, a two month period of time for the completion of the subject analyses would not necessarily be unreasonable in the circumstances.

[181] On the other hand, even though the report was finalized and printed through the operation of the LIM computer on May 11th, 2009, it is important to note that the subject document is replete with the recording of individual transactions which, according to the testimony of Ms, Thum, would have been entered into the laboratory information management on the same day as the event took place.

[182] When Exhibit B was produced by Ms. Hay on May 11th, 2009, all of the extensive steps involved in the process of testing and analyzing the various soil and vegetation samples had been recorded into the LIM system. Accordingly, based on Ms. Thum's evidence as to the protocols pertaining to the LIM system at Maxxam, I am of the view that the entries in Exhibit B were in fact made contemporaneously with the time of the act or event by the person performing the act. The best evidence before me is that in accordance with the operating procedures in place at the Calgary "inorganics" laboratory in the winter and spring of 2009, individual analysts were charged with the responsibility of entering the record of his/her act or transaction, associated with the analysis of the Ontario samples at the time of that involvement.

[183] Accordingly, I find that the various dates shown on Exhibit B reflective of when an analyst or technician would have either "extracted" or "analyzed" a soil or vegetation sample, were in fact entries logged into the computer on the date of the event by the analyst or technician. The computer therefore stored the record of the event made at the time of the act and it was printed some two months later when the testing on the samples had been completed and the LIMS report was ready to be produced.

[184] There is in my view no evidence that the various acts recorded in Exhibit B were not entered into the LIM system contemporaneously with the time of the event. According to Ms. Thum, based upon laboratory protocols and procedures, the acts of the analyst relative to the subject soil and vegetation samples would have been recorded in the computer at the time of the event and not two months later as suggested by the date of Exhibit B. As each piece of information would have been entered into the computer at the time of the act, there is no danger that the information recorded in Exhibit B would be inaccurate due to lapse of memory.

(vii) If any of the information in the record contains hearsay, whether both the maker and the informant were acting in the usual and ordinary course of business at the time of the making of the record.

[185] In respect of this requirement, Griffiths J. made the following comments in Setak pertaining to this pre-requisite to the admissibility of a record:

…In my opinion, s. 36 of the Evidence Act should be interpreted as making hearsay statements admissible when both the maker of the writing or the entrant of the record, and the informant or informants, if more than one, are each acting in the usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event.

[186] There is no evidence that any of the information entered into the LIM computer by various lab technicians or analysts would be hearsay, as each analyst would have performed a procedural or analytical function relative to the sample and would have recorded the nature of the test or preparation procedure into the computer at that time.

[187] On the other hand, according to Exhibit #4 to the voir dire, the subject soil and vegetation samples were handled by 13 various Maxxam staff members between February 19th, 2009 and May 8th, 2009. The form records the name of the individual who handled the sample within the laboratory, the date that the person had custody of the sample and the reason for taking possession of the sample from a secured area of the laboratory.

[188] The said exhibit discloses the fact that Maxxam had a system in place to record the handling and continuity of the seven Ontario soil and vegetation samples herein. Based on the verbal evidence I have received in this proceeding, I am of the view that to the extent that Exhibit B contains hearsay pertaining to the issue of the continuity of the subject samples and the analytical tests to be performed thereon, Exhibit #4 confirms that both the entrant of the record pertaining to the continuity of the subject samples and the hearsay informant were acting in concert in the "usual and ordinary course of business in entering and communicating an account of an act, transaction, occurrence or event" at the time of the making of the record.

[189] In conclusion, having analyzed the eight requirements for admissibility of a record under subsection 35(2) of the OEA, I am of the view that Exhibit B may be properly described as a business record which is sufficiently reliable to meet the threshold of admissibility under the said subsection, as an exception to the hearsay evidence rule.

[190] While I acknowledge that the absence of direct evidence from the various contributors to Exhibit B as to the circumstances surrounding its making and the strength of its assertions, may affect its reliability, the fact that all of the prerequisites to the admissibility of the exhibit under subsection 35(2) of the OEA have been met on a balance of probabilities, leads me to the determination that I have no discretion to deny the admission of the exhibit for the truth of its contents.

[191] In accordance with the provisions of subsection 35(4) of the OEA, and the decisions of E. MacDonald J. in Robb Estate and Andre J. in Petro Canada, the circumstances of the making of the record herein, including the lack of personal knowledge by its maker may be shown to affect the weight to be afforded to the record. Such circumstances, however, do not affect the admissibility of the document as a business record.

The Decision

[192] The application of the Crown in this voir dire is granted. The document identified as Exhibit B herein, being the Certificate of Analysis of Maxxam Analytics, dated May 5th, 2009, relative to the seven Ontario soil and vegetation samples, is hereby admitted into evidence in the trial proper under the provisions of subsection 35(2) of the OEA. It is therefore marked as Exhibit #22 to the trial.

Released: August 2, 2012

Signed: "Justice of the Peace Kenneth W. Dechert"

R. v. Metalore Resources Limited, 2012 ONCJ 518

Case Summary