Court File and Parties

Court File No.: Ottawa, East Region R.C.M.P. File #2013-198142 Date: 2015-06-01 Ontario Court of Justice

Between: Her Majesty the Queen — And — Michael Dennis Duffy

Before: Justice Charles H. Vaillancourt

Heard on: May 4 and 5, 2015

Reasons for Judgment released on: June 1, 2015

Counsel:

• Mark Holmes and Jason Neubauer, counsel for the Crown/Respondent
• Donald Bayne and Jonathan Doody, counsel for the accused Michael Dennis Duffy/Applicant

VAILLANCOURT J.

RULING ON THE ADMISSIBILITY OF THE ELEVENTH REPORT OF THE SENATE'S STANDING COMMITTEE ON INTERNAL ECONOMY, BUDGETS AND ADMINISTRATION DATED DECEMBER 15, 2010 FOR THE TRUTH OF ITS CONTENTS

Counsel's Positions as to the Admissibility of the Eleventh Report

[1] Mr. Bayne, counsel for Senator Duffy, seeks to have the Eleventh Report admitted into evidence as a public document on the basis that it is relevant to the issues before this court and meets the criteria for admissibility of public documents as outlined in R. v. Kaipiainen, [1954] O.R. 43 (Ont CA) and refined in R. v. P(A) (1996), 109 CCC (3d) 385 (Ont. C.A.).

[2] Furthermore, Mr. Bayne submits that the Eleventh Report could also be admitted into evidence using the principled approach to hearsay as set out in the case of R. v. Khan, [2012] O.J. No 5418.

[3] Crown counsel, Mr. Holmes, takes the position that the Eleventh Report should not be admitted into evidence as an exception to the hearsay rule because it does not meet the pre-conditions as set out in R. v. P(A). Furthermore, the Crown submits that the document in question does not meet the hallmarks of circumstantial guarantees of trustworthiness and sufficient reliability. The Crown views the Eleventh Report as inadmissible hearsay cloaked in a veil of opinion.

[4] Finally, Mr. Holmes contends that the findings, observations and inferences noted by the "unnamed authors of the document" are not relevant.

The Eleventh Report

[5] The Eleventh Report approved the Annual Report on Internal Audits, 2009-2010 for tabling in the Senate.

[6] This document contains the reports of three audits done by the firm Ernst and Young as well as an introduction section and sections dealing with the Senate's responses to the audit reports and follow-up action.

[7] Opposing counsel characterize the Eleventh Report much differently. The defence maintains that the document as presented is not the report of Ernst and Young but rather it is the report of the Standing Committee on Internal Economy, Budgets and Administration exercising its day-to-day oversight of the Senate's resources and administrative practices.

[8] The Crown characterizes the Eleventh Report as the work product of Ernst and Young predicated upon the investigations and interviews conducted by them but unsupported by any of the source information relied upon by them in arriving at their opinions and conclusions.

Introduction to the Eleventh Report

[9] The introduction to the Eleventh Report provides a useful framework when considering the issue of admissibility.

[10] The first topic in the introduction deals with the Senate Administrative Rules that outline the oversight and audit functions of the both the Standing Committee on Internal Economy, Budgets, and Administration and the Clerk of the Senate under Chapter 2:02 and Chapter 2:03. In order to give a fuller picture of Senate Administrative Rules, I have included additional sections which I have marked with an asterisk (*).

Chapter 2:02

2. (1) Subject to the rules, direction and control of the Senate, the Committee is responsible for the good internal administration of the Senate.

(2) For the purposes of subsection (1), good internal administration means a competent administration that is flexible, fair and transparent, with appropriate policies and programs, suitable service levels, adequate resources including high-quality staff, appropriate reporting mechanisms and regular audits and assessments.

(3) The Committee is accountable to the Senate and shall report on its administration. *

4. The Committee shall, in carrying out its functions, limit itself to financial and administrative matters and except as expressly authorized by an order of the Senate, may not regulate, direct or control

(a) legislative or procedural matters; or

(b) the proceedings of any other Senate committee.*

5. In order to carry out its functions, the Committee has advisory, policy-making, executive, interpretive and determinative powers.*

6. (1) The Committee reports administrative rules and policies, estimates and finance rules, to the Senate.*

7. The Committee may adopt written policies and guidelines of general application that do not contravene or amend any decision of the Senate where, in the opinion of the Committee, the nature of the policy or guideline is such that it would be more appropriate for the Committee as opposed to the Senate to adopt it.*

8. The Committee exercises its executive function, to act on all financial and administrative matters, by reporting a matter to the Senate or a House officer for action, by taking action in its own name or in the name of the Senate or by directing the Clerk of the Senate to take action.*

9. (1) The Committee exercises its interpretive and determinative functions when it uses an opinion upon the propriety of the use of a Senate resource by Senate or by the Senate Administration.

(2) The Committee may issue a general opinion, or may issue an individual opinion to a Senator, the Clerk of the Senate, or the person entitled thereto.*

14. (1) Subject to the rules, direction and control of the Senate, the Committee has the exclusive authority to interpret the Senate Administrative Rules.

(2) Subject to the rules, direction and control of the Senate, the Committee has the exclusive authority to determine whether any previous, current or proposed use of Senate resources is a proper use for the carrying out of parliamentary functions.*

Chapter 2:03

3. (4) the principal functions of the Clerk of the Senate as head of the Senate Administration are:

(a) to provide advice on corporate governance, including on strategic, administrative and financial planning and administration;

(b) to organize the internal administrative and financial structures;

(c) to direct the Senate Administration;

(d) to control and monitor the functions of the Senate Administration; and

(e) to report to the Senate through the Internal Economy Committee.

[11] The introduction to the Eleventh Report also deals with the use to be made of internal audits, the reporting mechanisms connected with such audits and the responsibilities of the audit subcommittee as follows:

The internal audit function supports the Committee and the Clerk in meeting their responsibilities by providing independent, objective assurance services designed to add value and improve the stewardship of Senate operations and resources. This assists the Senate in accomplishing its internal management objectives by bringing a systemic, disciplined approach to evaluate and improve the effectiveness of risk management, control and governance practices. (My emphasis)

The internal audit function reports functionally to the Audit Subcommittee and administratively to the Clerk of the Senate and is led by the Director, Internal Audit and Strategic Planning. The function's processes and practices are designed to meet the Institute of Internal Auditors' Professional Practices Framework.

An Audit Subcommittee, made up of three members of the Internal Economy Committee, has been established as the governance body charged with overseeing and directing the internal audit function. The Audit Subcommittee's primary responsibilities are to:

• Recommend for approval by the Internal Economy Committee a multiyear internal audit plan, reports and recommendations regarding the internal audit function, including audit reports that have been submitted, and others, as appropriate;

• Review management action plans and ensure (1) that they adequately address the recommendations and findings arising from internal audits, and (2) that the action plans have been effectively implemented;

• Submit an annual report with its observations and recommendations to the Internal Economy Committee; and

• Review the Internal Audit Policy and recommend changes as required to the Internal Economy Committee.

The Senate maintains a Multiyear Audit Plan that covers a three-year period and is updated annually using a risk-based planning methodology. The plan is reviewed by the Audit Subcommittee before being presented to the Internal Economy Committee for approval. Once approved, the Director, Internal Audit and Strategic Planning, is responsible for ensuring that the audits are carried out as planned. Audit work is typically carried out by outside audit firms engaged through a competitive process.

2009-2010 Audits

In May 2009, the Standing Senate Committee on Internal Economy, Budgets, and Administration adopted a three-year risk based audit plan. The plan started with the 2009-2010 fiscal year during which the following audits were completed:

• Audit of Senators' Office Expenditures

• Service Contracts Audit

• Job Classification Function

[12] The last area I would like to deal with in the introduction to the Eleventh Report involves What Happens After the Audits? It states that:

Once an audit has been completed, the results are submitted to the Clerk of the Senate who, along with his management team, considers and validates the observations, prepares management responses and develops a follow-up action plan for addressing the recommendations. The final audit report, along with management's responses and action plans, are presented to the Audit Subcommittee and subsequently to the Senate Committee on Internal Economy, Budgets, and Administration.

The follow-up process on audit recommendations begins as soon as a weakness has been identified and it is not unusual to have corrective measures implemented during the course of the audit, even before the final report is issued. Other recommendations require more extensive changes to policies, procedures, practices and systems and can take anywhere from a few months to two years to fully implement. These actions often form the basis of key initiatives in the Administration's annual work plans.

The Clerk, with the assistance of the Director, Internal Audit and Strategic Planning, monitors progress made on the implementation of audit recommendations. The Audit Subcommittee is kept apprised of any delays or situations that might require closer attention and receives progress reports on a quarterly basis until all audit recommendations have been addressed. (My emphasis)

The Senate Response to the Audit Reports

[13] The Eleventh Report concludes with the Senate response to each one of the audit reports and follow-up action to be taken.

The Audit of Senator's Office Expenditures

[14] The Senate response to this audit report and follow-up action is as follows:

An action plan has been developed to address the recommendations and a number of initiatives have already been completed. A new public disclosure report has been designed and will be implemented as of January 2011. This report will make public the travel, office, and hospitality expenditures of individual senators and will be published on a quarterly basis. New rules for the timely submission of expense claims have been approved and implemented. The Policy on Senators' Living Expenses in the National Capital Region (NCR) has been revised and the changes implemented. New administrative processes have also been put in place to ensure that documentation requirements related to expense claims are met.

A number of other initiatives are underway and expected to be completed in the coming months. A new policy for the Senators' 64-Point Travel System is under development in response to several recommendations related to the current guidelines and practices. Other policies are under review and measures are being put in place to ensure the timely communication to all senators of new policy requirements and amendments.

It should be noted that the Committee disagrees with the recommendation that the Senate give consideration for a second-level approval process for Senators' expenses claims. It is felt that the Senate's rigorous expense claim review process was adequate and that there are effective mechanisms in place to mitigate the typical risks associated with expense claims. (My emphasis)

The Internal Economy Committee is confident that, once all initiatives have been completed, the audit recommendations will have been adequately addressed.

Services Contracts Audit

[15] The Senate response to this audit report and follow-up action is as follows:

An action plan has been developed which, once fully implemented, will address the recommendations in the report.

Measures have already been in place to ensure that contract files are appropriately documented while at the same time ensuring that client/solicitor privilege is protected in relation to legal services contacts.

The Senate's contracting practices and policies have been reviewed and improved policy and guidance documents are under development. Once implemented, these new policies will address the issues raised with regard to personal service contracts, contracting authorities and sole-source thresholds.

The Committee is considering at what limit the contracting threshold should be set as it applies to senators. It is recognized that, due to the unique political and policy work done in a senator's office, that senators have unique contracting requirements for which a competitive bidding process may not be appropriate or feasible. The Committee has considered the risk and materiality associated with services contracts and a policy is under development which proposes a sole-source threshold which is better aligned with the authority that senators already have when requesting employment contracts.

The Committee is in agreement with the action plan put forth by the Administration and appreciates the improvements that have already been made. It looks forward to full implementation of the remaining action items proposed. (My emphasis)

Job Classification Function Audit

[16] The Senate response to this audit report and follow-up action is as follows:

The Internal Economy Committee has reviewed the report and agrees with the recommendations. Senate Management has taken immediate action on many of the initiatives identified in the follow-up action plan. For example, a cyclical job description review process has been put in place, all job reclassifications are not subject to an on-site review, and measures have been taken to ensure that all aspects of the classification process are properly documented.

Remaining initiatives which will lead to full implementation of the audit's recommendations include such things as amendments to the Senate Administration Policy on Classification and Organizational Design, the development of a toolkit for managers to assist them in their job classification responsibilities, and the establishment of effective performance indicators.

The Committee is appreciative of the audit's recognition that the Senate already has effective controls and practices in place to manage risks associated with the job classification function. The recommendations will serve to make an already effective function even better. (My emphasis)

The Tabling of the Annual Report on Internal Audits, 2009-2010

[17] On December 15th, 2010, Senator David Tkachuk tabled the audits that are the subject matter of this ruling and in his introduction in the Senate observed that:

The findings of these three audits, where not particular to our unique environment, are not uncommon in similar audits of government departments and agencies.

Senators, your Standing Committee on Internal Economy, Budgets and Administration is encouraged by the usefulness of the 2009-2010 audits, and is committed to further implementing a strong audit function within the Senate.

I thank honourable senators who previously served on the Internal Economy Committee who had begun this process; specifically, Senator Furey and Senator Stratton, who had worked with their colleagues to begin this audit process and to begin this new era of transparency. Their leadership should be commended.

Debates of the Senate, 3rd Session, 40th Parliament, Number 79, Official Report (Hansard)

[18] It is noteworthy from the aforementioned comments by Senator Tkachuk that the audit process going forward is designed to strengthen the audit function and to introduce a new era of transparency.

Is the Eleventh Report a Public Document for the Purposes of the Common Law Exception to the Hearsay Rule and Therefore Admissible as Evidence?

[19] The Senate Administration Rules sets out the roles and responsibilities of the Standing Committee on Internal Economy, Budgets and Administration which is charged with providing good internal administration of the Senate reflecting flexibility, fairness and transparency. To accomplish its tasks, the Committee is directed to conduct regular audits and assessments. The Eleventh Report would be considered an example of this auditing and assessment process.

[20] Mr. Mark Audcent, a former Clerk of the Senate, described the Standing Committee as a very important Committee that is responsible for the internal management of the Senate. He further advised the court that the Committee basically runs the entire Senate administration subject to the rules, direction and control of the Senate.

[21] Ms. Nicole Proulx, who has held the position of Director of Finance at the Senate and currently is the Clerk to the Standing Committee, advised the court that the various Senate Standing Committee's reports are intended to be kept as a permanent record of those documents. Furthermore, Ms. Proulx advised that the reports are accessible on the Intraparl website and are available for public inspection. Ms. Proulx confirmed that the posted reports were prepared by public officials discharging their duties and responsibilities set out in the Senate Administration Rules reflecting an accurate and true copy of the work of the Senate Standing Committee.

[22] The foregoing paragraph and the mandate set out in the Senate Administration Rules are useful when one addresses the issues that define a "public document" in R. v. P.(A) (infra) paragraph 15.

[23] Mr. Audcent expressed the essence of audits in his evidence when he said: "I think that's the role of audits, is to show where improvements can be brought about." And "Well, I think all systems can be perfected and made better and once again, that's what the nature of an audit is, is to find where the administration can be improved".

Mark Audcent, trial testimony, 9 April 2015 at p.24 and 10 April 2015, p.19

[24] Public documents have been defined in the common law. Traditionally, the leading case setting out the requisite criteria for public documents is R. v. Kaipiainen (supra) wherein Aylesworth J.A. writing for the court highlighted four preconditions that, if made out, permitted the admission of public documents without proof before the court. Those criteria were:

(1) Must be a judicial or semi-judicial inquiry

(2) Inquiry must be with the object that the report is made public

(3) Must be open to public inspection or an inference to its effect should be drawn from the circumstances

(4) Statements in the public document must relate to matters for which it was duty of public officer holding inquiry to inquire into and report.

[25] The Ontario Court of Appeal addressed the issue regarding the admissibility of public documents in the case of R. v. P.(A.) (supra) commencing at paragraph 14.

[14] At common law statements made in public documents are admissible as an exception to the rule against hearsay. This exception is "founded upon the belief that public officers will perform their tasks properly, carefully, and honestly." Sopinka et al. The Law of Evidence in Canada (1992), p. 231. Public documents are admissible without proof because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them. Rand J. commented on the rationale for the public documents exception to the hearsay rule in Finestone v. The Queen (1953), 107 C.C.C. 93 at 95 (S.C.C.):

The grounds for this exception to the hearsay rule are the convenience of the ordinary modes of proof and, the trustworthiness of the entry arising from the duty, and that they apply much more forcefully in the complex governmental functions of today is beyond controversy.

[15] A "public document" means "… a document that is made for the purpose of the public making use of it, and being able to refer to it." Sturla v. Freccia (1880) 5 App. Cas. 623 (H.L.) at 643. English and Canadian cases have generally prescribed four criteria for the admissibility of a public document without proof.

(i) The document must have been made by a public official, that is a person on whom a duty has been imposed by the public;

(ii) The public official must have made the document in the discharge of a public duty or function;

(iii) The document must have been made with the intention that it serve as a permanent record, and

(iv) The document must be available for public inspection.

[16] See Finestone v. The Queen, (supra); R. v. Kaipiainen (1953), 107 C.C.C. 377 (Ont. C.A.); R. v. Northern Electric Co. et al. (1955), 21 C.R. 45 at 75-82 (Ont H.C.); J.D. Ewart, Documentary Evidence in Canada, 1984, pp. 148-75.

[17] The fourth criterion is controversial. It is not a requirement in the United States, and in my opinion there is much to be said for the following observation by McCormick:

This limitation has been criticized, and the American courts reasonably have not adopted it. Although public inspection might provide a modest additional assurance of reliability, strictly limiting admissibility to records that are open to public inspection would be unwise because many documents with sufficient reliability to justify admission would be excluded.

McCormick on Evidence 4th ed. (1992), V.2 at pp. 288-289.

[26] In R. v. W.B.C., [2000] O.J. No. 397 (Ont. C.A.), Justice Weiler J.A. writing for the majority commencing at paragraph 30 observed that:

[30] Before us, the Crown maintained that the transcript was admissible at common law on two bases. The first is under the Khan exception to the hearsay rule which requires that the necessity and reliability of the proposed evidence be established. The second is that the transcript is a public document at common law. I prefer to call the transcript a record of a judicial proceeding. The criteria for admissibility at common law of a public document and a judicial proceeding are the same and legal writers, such as Wigmore, make no distinction between them. The principles of necessity and reliability also underlie the public document or judicial proceedings exception. As stated by Laskin J.A. in R. v. P.(A.) (1996), 109 C.C.C. (3d) 385 at 389-390:

… This exception is founded upon the belief that public officers will perform their tasks properly, carefully, and honestly. Sopinka et al, The Law of Evidence in Canada … (Toronto: Butterworths, 1992), p. 231. Public documents are admissible without proof because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them. (emphasis mine).

[31] The inconvenience of requiring a public official to attend in court to prove a public document or of requiring a court reporter to prove a proper judicial proceeding makes it necessary to admit the document or transcript. …

[27] Justice Weiler addresses the issue of trial fairness at paragraphs 45-46.

[45] Although both necessity and reliability of the transcript are present, a court would still have a discretion to exclude the transcript if its admission would render the trial unfair.

[46] No notice is required if the proffered judicial document meets the requirements for admissibility at common law: R. v. Tatomir (1989), 17 M.V.R. (2d) 321n, 51 C.C.C. (3d) 321 (Alta. C.A.) at 327. However, the court still had a discretion to exclude hearsay evidence as a matter of trial fairness: R. v. Hawkins, [1996] 3 S.C.R. 1043 at 1089.

[28] I agree with Mr. Bayne that the Eleventh Report meets the criteria of necessity as referenced in paragraph 14 of R. v. P.(A) (supra) and paragraph 31 of R. v. W.B.C. (supra).

[29] The case of R. v. Dykstra, [2008] O.J. No. 2745, (O.C.J.) highlights a situation wherein even though the preconditions for admissibility as set out in R. v. Kaipiainen (supra) and R. v. P(A) (supra) were met, the public document was not admitted into evidence because the document lacked sufficient reliability and the prejudicial aspects of the report of the Standing Senate Committee on National Security and Defence outweighed any marginal relevance that it might have had.

[30] Justice D. F. Baltman at paragraph 12 noted that:

… In particular, judges dealing with the introduction of reports by commissions or inquires have generally excluded them, as the findings were neither intended nor sufficiently reliable to be used in subsequent criminal or civil proceedings.

[31] The Dykstra decision is distinguishable from the case at bar in a number of ways.

[32] In Dykstra, the substance of the document was not related to the culpability of the accused for the purposes of the criminal trial. It was marked with a series of opinions on the potentiality of conspiracies surrounding airport security at Pearson Airport. Its sources were unknown and therefore, the hallmarks of reliability were absent. By contrast, the Eleventh Report in the case at bar deals with the Senate Administrative Rules, background information on filing expense claims with the Senate, the efficiency of internal rules, and related observations on Senators' travel and budgetary policies – all of which provide the foundation for the recommendations in the report. While the report is not directly indicative of the culpability of Senator Duffy, it assists in providing background information for the court to assess the nature, scope and applicability of the Senate's internal rules for the purposes of assessing Senator Duffy's alleged conduct in relation to the rules.

[33] Whereas the National Defence and Defence report listed hundreds of individuals contributing source material in some manner or other, the Eleventh Report was the work product of a reputable accounting firm tasked with the role of providing recommendations to the Senate's Standing Committee on Internal Economy, Budgets and Administration.

[34] The Committee has the exclusive authority to determine whether any previous, current or proposed use of Senators' funds, goods and services are made available to the Senator for the purposes of carrying out their parliamentary function was proper. In so doing, it has the authority to strike an Audit Subcommittee, comprised of three members of the Internal Economy, Budgets and Administration Committee to oversee and direct the internal audit function. The authors of the document are public officials. The function of the document reflects an element of the Committee's legislative public duty which is integral to the internal management objectives of the Senate.

[35] The audits conducted for the Eleventh Report were conducted with the object that the document be made available to the public. The report is available online thereby establishing its permanence as a public record. This document pertains to Senate resources and internal administration to which the committee has a duty to report.

[36] The report has the earmarks of a document that has been thoroughly studied by the Committee. Not all recommendations were accepted. Each of the auditor's recommendations resulted in a considered response by the Committee for implementation.

[37] Undoubtedly, Ernst and Young's source material would contain hearsay and opinion evidence. However, one must be mindful that the finished report of the auditor was then examined by the Senate's Committee charged with the overall functioning of the Senate's administration. I find that when the Eleventh Report was prepared and released by the Senate it can be characterized as the Senate's report and not the Ernst and Young report.

[38] The process leading up to the finished document leads me to the conclusion that the issue of inherent reliability of the Eleventh Report has been made out.

[39] Whereas the Dykstra case involved a jury that the Court found may be distracted from their task of determining a narrow issue by the alarming tone and broad indictment of airport operations contained in the document, the case at bar does not have a jury.

[40] Mr. Holmes in his Factum draws the court's attention to how Mr. Bayne focused on the opinions, inferences and conclusions contained in the Eleventh Report and how he sought to extrapolate from limited results to posit broader conclusions. The court is alive to this issue and will have to be mindful of what weight to assign to the various aspects of the Eleventh Report.

[41] The Ontario Court of Appeal in R. v. Batisse, 2015 ONCA 322 had occasion to address the issue of the admissibility of a pre-sentence report prepared after a plea of guilty had been entered by the accused for the purpose of proving the truth of the contents of certain statements and documents referred to in the presentence report concerning his developmental deficits.

[42] The trial judge ruled the pre-sentence report admissible based on (i) the common law public documents exception; (ii) the principled approached to the hearsay rule (which the trial judge referred to as the Khan exception); and (iii) the trial judge's residual discretion to prevent unfairness to the accused that would result in a miscarriage of justice.

[43] The Court noted that:

[10] In admitting the pre-sentence report based on the common law public documents exception and the Khan exception, the trial judge relied in part on his understanding that the Crown had conceded the reliability of the various statements and reports. On appeal, it is not disputed that no such concession was made. The trial judge did not conduct his own reliability analysis. His failure to do so is an error in law that negates the first two bases for his admissibility ruling.

[11] In any event, we also conclude that the trial judge's reliance on the common law public documents exception to the hearsay rule is misplaced. A pre-sentence report is prepared on the basis that it is relevant to issues surrounding sentencing following a finding of guilt, and is not subject to the same evidentiary strictures as are in place at trial. …

[13] Finally, the trial judge's conclusion that the admission of this evidence was necessary lacked any evidentiary foundation and was also an error in law. Because the respondent failed to demonstrate any basis for concluding that the admission of the evidence was necessary, the trial judge erred in principle in relying on his residual discretion to admit the evidence.

[44] The Batisse decision of the Court of Appeal is a very recent decision of that Court on the issues involving the admissibility of a public document, namely, a pre-sentence report. The factual circumstances in Batisse can be considered to be very unique. As a result of the facts in the case, the Court did not have to address a public documents analysis and the associated jurisprudence. Rather, the thrust of the case involved the Khan principles of reliability and necessity.

[45] I agree and adopt Mr. Bayne's written submissions that:

Batisse is limited to the circumstance of a pre-sentence of a pre-sentence report being tendered at trial before any finding of guilt. The pre-sentence report of Batisse was never a "public document" in the same way as is the Eleventh Report: the "function" of a pre-sentence report is expressly and solely for the post-trial sentencing (in distinction from the annual internal audit addressing the current state of Senate administrative rules, policies, guidelines and practices on which action plans for improved administration are based); and the pre-sentence report is in no comparable way publically available to Canadians on an official, easily-accessed government website. A pre-sentence report is focused on one individual person and input of sources are merely reported; by way of contrast, the Standing Committee's Eleventh Report expressly adopts those findings of the professional audit firm that it agrees with in its mandated responsibility, and, post-adoption, implements corrective action. The Eleventh Report is an explicit exercise of the Standing Committee's mandate to conduct and report "regular audits and assessments" and as part of its "advisory, policy-making, executive, interpretive and determinative powers" to recommend action to be taken "for the good internal administration of the Senate." [Senate Administrative Rules, Division 2:00 Governance, Sections 2(1), 2(2), 2(3), 3(1), 5, 6(1), 10, and 11] The Eleventh Report is part of a regular public audit function and is an express determination by the Standing Committee. Not an opinion and not a report of one unique individual for the sole purpose of passing sentence after a finding of guilt. The Eleventh Report, being a regular internal audit, adopts those findings of professional auditors with which the Standing Committee (and Clerk and Audit Subcommittee) agree, not the statements of the mother of an accused.

In respect of the reliability of the Eleventh Report, the adoption of the 2009-2010 professional audit findings by the mandated public officials – the Standing Committee – in their determinative function establishes the required reliability. As Laskin JA stated, it is the "inherent reliability or trustworthiness" of documents adopted publically by mandated public officials that grounds their admissibility. As always, ultimate reliability of the Eleventh Report, given the manner in which it was generated, is much closer to the internal investigation documents of Ethier which were found by the Federal Court of Appeal to meet the criteria of reliability ("These are the respondent's own documents created during an internal investigation … Ethier v. Canada (RCMP Commissioner), [1993] 2 (FCA) at para. 4) then to the pre-sentence report of Batisse.

Diversity of Public Documents

[46] Many of the authorities regarding the admission of public documents in criminal proceedings cited by counsel on this application involve court documents. I do not find that only court documents fall within the scope of public documents that may be admissible in criminal trials.

[47] Ewart's text, Documentary Evidence in Canada, 1984 at pages 149-150, outlines the diversity of documents that can be included in the category of public documents and lists three basic categories of public documents:

(i) entries made in public registers or files by public officials;

(ii) the results of official investigations or inquiries carried out by public officials;

(iii) certificates prepared by public officials.

[48] I find that the Eleventh Report would fall into category (ii). The initial audits were prepared by Ernst and Young at the behest of the Internal Economy, Budgets and Administration Committee. This material was then studied and adopted by the Committee and made public.

Fact that Two Other Documents from the Senate Have Been Admitted on Consent

[49] Mr. Bayne further suggests that the Eleventh Report should be entered into evidence having in mind that the Twenty-First Report, June 10, 1998 and the Thirty-Sixth Report, April 28, 1988 have been entered on consent.

[50] My Bayne pointed out that these reports contain opinion and recommendations much like the Eleventh Report.

[51] I do not find merit in the approach that since two other Senate reports are in on consent it automatically follows that that the report in dispute should become admissible.

[52] The operative phrase is "on consent". If the parties consent to certain documents being tendered into evidence, it alleviates the need for the court to determine any potential issues as to admissibility.

[53] However, if a party takes issue with the admissibility of any particular piece of evidence, the party tendering such evidence must meet the evidentiary standard required for admitting such evidence.

[54] In the case at bar, the Crown opposes the admission of the Eleventh Report and consequently the Applicant must demonstrate that the evidence in question is admissible.

The Trap of Seductiveness

[55] In his oral representations, Crown counsel cautioned the court not to yield to the seductive attraction of just letting in the Report and dealing with the issue of weight later.

[56] I have not taken this approach to this ruling.

Summary

[57] The Introduction to the Eleventh Report highlights the importance of oversight being exercised by the Standing Senate Committee on Internal Economy, Budgets, and Administration in accordance with the Senate Administration Rules and the importance of internal audit functions to meet their responsibility.

[58] Oversight is relevant in this trial and counsel for the Applicant advances the proposition that the lack of appropriate oversight is a key component to the defence of many of the charges before the court. I recognize this as a valid position.

[59] The use of professional and independent auditors such as Ernst and Young provides a systematic and disciplined approach to the audit process.

[60] Once the audits were completed by Ernst and Young, the Audit Sub Committee and the Standing Committee on Internal Economy, Budgets, and Administration reviewed the results and formulated an action plan that they deemed appropriate for implementation and then tabled their report in the Senate.

[61] By this stage of the process, I consider the Report generated to be that of the Standing Committee on Internal Economy, Budgets and Administration. I recognize that the final report may contain significant work product of Ernst and Young with elements of opinion and hearsay that may very well impact on the weight to be given to the evidence.

[62] The Eleventh Report cannot be characterized as an exercise in rubberstamping. The Standing Committee on Internal Economy, Budgets and Administration by its responses contained in the Eleventh Report demonstrate that they had the final say on how the material presented was to be used.

[63] The Eleventh Report meets the definition of a "public document" as outlined in paragraph 15 of R. v. P(A). Ms. Proulx's evidence addressed the four prescribed criteria for the admissibility of a public document, namely, (i) the document must have been made by a public official, that is a person on whom a duty has been imposed by the public; (ii) the public official must have made the document in the discharge of a public duty or function; (iii) the document must have been made with the intention that it serve as a permanent record, and (iv) the document must be available for public inspection.

[64] I find that the Applicant has established that the Eleventh Report has met the requirements of necessity and reliability as per paragraph 30 of R. v. W.B.C. (supra).

[65] The inconvenience of requiring a public official to attend court to prove a public document makes it necessary to admit the document.

[66] There is inherent reliability in public documents. The Eleventh Report has enhanced reliability when one considers the input of independent auditors and the scrutiny exercise by the Standing Committee on Internal Economy and Administration.

[67] I am aware that even though necessity and reliability are present, I still could exclude the Eleventh Report if its admission would render the trial unfair. See paragraph 45 of R. v. W.B.C. (supra).

[68] I do not find that the admission of the Eleventh Report would result in any issues of trial fairness.

[69] I find that the Eleventh Report is relevant to the issues before the court in that it provides background information for the court to assess the nature, scope and applicability of the Senate's internal rules for the purposes of assessing the accused's alleged conduct in relation to the rules.

Conclusion

[70] The Eleventh Report will be admitted into evidence under the headings of public documents and applying the principled approach as outlined in Khan.

Released: June 1, 2015

Signed: "Justice Charles H. Vaillancourt"