Ontario Court of Justice

Date: August 13, 2020

Court File No.: Guelph 20-604

Between:

Her Majesty the Queen

— AND —

Jeremy Mackie

Before: Justice M.B. Carnegie

Heard on: June 26, 2020

Reasons for Judgment released on: August 13, 2020

Counsel

Judith MacDonald — counsel for the Crown

Alan Faeorin-Cruich — counsel for the Respondent Jeremy Mackie

Evidentiary Ruling on the Admission of Correctional Service Canada Records

Carnegie J.:

Introduction

[1] The Respondent, Jeremy Mackie, was convicted of aggravated sexual assault, forcible confinement and utter threats to cause death on June 3, 2013 before the Superior Court of Justice in Guelph. He was sentenced to a totality of nine years imprisonment, six years and nine months to be served after credit for pre-sentence custody. This was his first conviction. Denied parole, the Respondent was released mere days before his warrant expiry date, on February 28th, 2020.

[2] In anticipation of his release, the Crown brought an application pursuant to s. 810.2 of the Criminal Code for a preventive order restricting the Respondent's liberty fearing that he will commit a serious personal injury offence upon his release. Process was issued by Wendl J. of this court. The Respondent is presently on a recognizance with strict terms and conditions pending the completion of these proceedings. In support of this Information, the Crown filed a document brief inclusive of an affidavit of Detective Constable John Hunt, sworn on February 27, 2020. The Crown relies upon this document brief as part of its application record. The Crown intends to call only Det. Hunt and will otherwise rely upon its filed documents brief.

[3] In anticipation of his 810.2 hearing, the Respondent contests the admissibility of some the documentation relied upon by the Crown.

[4] Included within this document brief are a variety of documents referenced by Det. Hunt in support of his grounds for belief that the Respondent will commit a serious personal injury offence. Some of these documents were received from Correctional Service Canada (CSC) pertaining to the Respondent's recent incarceration from June 2013 through February 2020. These documents include:

• Parole Board of Canada decisions from 2017 and 2019 (Tabs D, E);
• CSC Psychological Assessment Reports from 2013, 2017, 2018 (Tabs F-H);
• a CSC Correctional Plan from 2017, an Assessment for Decision 2019 (Tab I);
• CSC Institutional Programs Performance Reports from 2016 and 2017 (Tab J);
• a psychological report from Dr. Woodford, dated November 22, 2010 (Tab K);
• Victim Impact Statements from the Respondent's sentencing hearing (Tab L);
• a police synopsis from the antecedent matter (Tab M);
• the Respondent's police interview transcript from the antecedent matter (Tab N);
• the Indictment and Ancillary Orders from the antecedent matter (Tab O);
• the Agreed Statement of Facts from the Respondent's antecedent matter (Tab P);
• the transcript of the Respondent's antecedent court proceeding, dated June 3, 2013 (Tab Q);
• a psychological Assessment Report of Dr. Bream, dated September 12, 1999 respecting the Respondent (Tab R); and
• the CPIC record of the Respondent (Tab S).

[5] The Respondent objects to the admission of some of the above CSC records, namely the psychological assessment reports, correctional plan and assessment decision reports, and the institutional programs performance reports.

[6] This evidentiary application was argued exclusively on the paper filed, the Crown's document brief. No evidence was otherwise called by the Crown or Respondent.

[7] For the following reasons, I find the Crown's proffered CSC evidence admissible save for those records identified as predominantly expert reports (Tabs F, G and H). I leave for another day the weight, if any, to be attributed to the admissible records contested by this evidentiary application.

Grounds for Admission of the CSC Documents

[8] In an 810.2 application, the Crown bears the burden of proving, on a balance of probabilities, that the informant subjectively fears that the Respondent will commit a serious personal injury offence and, that this fear is not only subjectively held but is objectively reasonable. In order to meet this burden, the Crown here relies upon records prepared by and obtained from CSC during the Respondent's recent incarceration. It seeks admission of these contested documents on two principle bases: as 'business records', pursuant to s. 30 of the Canada Evidence Act (CEA); and, as hearsay evidence admissible at common law on a principled exception basis because they constitute "credible and trustworthy" evidence.

[9] The Respondent challenges the applicable evidentiary standard for hearsay admission in a peace bond hearing, the scope and application of the "credible and trustworthy" threshold, the application of opinion evidence to this standard and the applicability of the 'business records' admissibility allowance.

Nature of the Contested Evidence

[10] As referenced, there are a variety of documents for which the Respondent contests admission. These reports fall into a few categories and will be considered broadly as such.

(a) CSC Psychological Assessment Reports (2013, 2017 and 2018)

[11] The Crown intends to rely upon a variety of psychological assessment reports completed by CSC officials while the Respondent was incarcerated. They were prepared by psychologists for internal assessments respecting the Respondent's suitability for offender programming. Their common purpose was to provide a risk assessment for sexual and/or violent recidivism, the Respondent's level of psychological functioning and to provide recommendations respecting the management of risk. Both statistical (or actuarial) and clinical (or dynamic) risk was assessed exposing the Respondent to a variety of testing methodologies. The results of these assessments are advanced by the Crown as evidence of a continuing level of risk relevant to their position that the Informant reasonably fears that the Respondent will commit a serious personal injury offence upon release.

[12] These reports share some common features, including:

• a summary of events from July 27, 2012 leading to his antecedent convictions;
• the Respondent's response to queries about those events (both consistent and inconsistent with investigation and Court findings);
• a review of the Respondent's institutional behaviour and programming status and response;
• a review of the Respondent's psychosocial history;
• assessments of his cognitive functioning, personality traits/attitudes/beliefs, clinical features, concepts of self, interpersonal and social environmental features, anger and criminal sentiments;
• actuarial testing results using a variety of tools to measure risk of violent and sexual assault recidivism and placing that risk on a statistical scale; and
• a comingling assessment of both clinical and actuarial measures to gage the Respondent's level of risk for recidivism.

[13] These reports summarize the testing methodologies utilized, the relevant inputs considered (largely based upon the Respondent's interviews, the Court record and available historical medical records) and the results generated for each clinical or actuarial test. How the psychologist scored relevant risk assessment factures within each testing measure is not included limiting the capacity of the reader to independently scrutinize the reported findings.

(b) CSC Correctional Plan and Assessment for Decision (2017, 2019)

[14] In anticipation of a parole hearing in 2017, a Correctional Plan was prepared by a parole officer and a manager of assessment intervention. This plan summarized conclusions from a variety of sources, including the psychological assessments noted above as well as institutional records respecting the Respondent's institutional history. It organized existing sources and findings alongside additional interviews into what it referred to as static and dynamic factors ultimately leading to conclusions for a number of parole relevant criteria: motivation rating, responsivity factor, engagement rating, reintegration potential rating, psychological/mental health information and offence cycle. The authors ultimately concluded that the Respondent presented with low reintegration potential and did not request a community strategy be prepared. The Respondent was later denied parole.

[15] In 2019, a parole officer and the same manager of assessment intervention completed an Assessment for Decision report in anticipation of a further parole hearing. The purpose of this report was to provide a recommendation to the Parole Board of Canada in relation to the Respondent's Annual Detention Review. Again, this report summarizes known information from a variety of sources organizing it into a risk assessment framework. While the Respondent was, again, interviewed as part of the author's assessment process, the vast majority of source material appears to be from his institutional file including psychological reports and a previous Assessment for Decision report. In essence, this report presents an updated risk assessment fashioned from a contemporaneous interview and pre-existing assessments. The authors recommended that the Respondent's detention order be confirmed, that he not be granted parole. The Respondent was later denied parole, again.

[16] What is noteworthy from these reports is their reliance upon previous psychological assessments (some included in the Crown's documents brief) and the nature of their conclusions. While the former psychological assessments proffer clear opinions respecting the Respondent's presenting risk of recidivism, these reports largely organize presumed relevant information and proffer recommendations to the Parole Board. The authors made it clear which factors they relied upon to ground their conclusions. However, the scope of relevant factors and selectivity of inputs considered is unknown making these reports difficult to substantively scrutinize.

(c) CSC Institutional Programs Performance Reports (2016, 2017)

[17] The Crown also relies upon CSC Program Performance Reports which documented the Respondent's progress in the Non-Intake Primer Sex Offender and Sex Offender Moderate Intensity Program, completed in 2016 and 2017. These program reports were authored by Correctional Program Officers. The reports summarize the Respondent's attendance, participation and progress throughout the programs and identify specific risk factors and areas of improvement. They quote from the Respondent's commentary throughout the programs and identified insights and areas of concern. They also provide learning objectives to mitigate risk factors. Of note, these reports do not incorporate other expert opinions or institutional file sources. They do not opine respecting any recidivism risk assessment nor do they make custodial recommendations other than further programming suggestions. They represent an apparent clinical assessment of the Respondent's progress in respective programs and identify risk factors for future case management focus.

[18] In essence, these reports reflect an organization of the Respondent's progress through identified risk factors based upon his presenting offence narrative and responses to targeted inquiries. The process appears to be clinical in nature and reliant upon the context provided within the report, divorced from complete notes from the Respondent's interviews. The observations and noted concerns offered by the authors fall short of a direct correlation to the Crown's presumed proffered purpose – relevance to the Respondent's risk of serious personal injury offence recidivism.

Nature of This Proceeding

[19] A peace bond hearing of this nature is determined upon evidence which satisfies the court that the informant has reasonable grounds to fear that the respondent will commit a serious personal injury offence. The grounds for fear must be subjectively held by the informant and sufficiently reliable and trustworthy to be objectively reasonable. Whether this evidence can include hearsay is now settled. In R v Budreo, Laskin J. made clear that hearsay evidence can be considered in peace bond hearings.

Moreover, although an informant's fear triggers an application under s. 810.1, under subsection (3) a recognizance order can only be made if the presiding judge is satisfied by "evidence" that the fear is reasonably based. Section 810.1(3) therefore requires the judge to come to his or her own conclusion about the likelihood that the defendant will commit one of the offences listed in subsection (1). Although the "evidence" the judge relies on might include hearsay, a recognizance could only be ordered on evidence that is credible and trustworthy. [Emphasis added]

[20] There are few reported decisions dealing with the application of the "credible and trustworthy" standard to hearsay evidence during a peace bond hearing, and even fewer dealing directly with proffered hearsay of expert opinions.

[21] The Crown submits that the rules of evidence are relaxed respecting the conduct of an 810.2 proceeding. By analogy, it argues that this Court can look to Criminal Code firearm hearings as an example of a more flexible evidentiary regime than would otherwise be present during the conduct of a trial. The difference being that culpability for a criminal offence is not at issue during a firearm hearing or an 810.2 application and, as a result, a civil standard of proof is applied. Further, the Crown submits that this court can find comfort in the routine admission of custodial institutional records in dangerous offender proceedings despite the dramatic remedies available to the court upon such a sentencing classification.

[22] The Respondent submits that the evidentiary threshold for peace bond hearings is "unsettled". He relies upon R v Fontaine for the proposition that, short of expressed statutory language to the contrary (which is absent), general rules of evidence should be applied to these hearings given the significant consequences to a respondent should an 810.2 order be made. While the Respondent concedes, somewhat paradoxically, that hearsay evidence can be admissible in these proceedings, the established sentencing hearing threshold sets the bar far too low for a preventive, not reactive, justice proceeding.

[23] While I agree with the Crown's burden analysis and concede that a more flexible application to the rules of evidence is appropriate, an 810.2 hearing cannot turn into an admissibility free for all. As the Saskatchewan Court of Queen's Bench confirmed in R v Flett,

These decisions at all court levels up to and including the Supreme Court of Canada confirm that s. 810 hearings are not criminal trials. The usual rules of evidence applicable in criminal trials do not apply. Hearsay evidence is admissible. The question before the judge is to determine whether or not sufficient weight can be given to the hearsay evidence to establish the reasonable and probable grounds required for the individual to swear the information to justify the fear of harm to others by the respondent.

[24] Stringent application of the rules of a criminal trial do not apply in a non punitive proceeding, as here. Parliament intended peace bonds to be a preventative tool for courts to address public safety. Succinctly put, in R v Schafer the Yukon Territorial Court of Appeal recently and persuasively highlighted the applicable evidentiary standard:

The informant (whether a peace officer or a person concerned about personal safety) is not required to act on the basis of evidence admissible at trial. The issue for the judge is whether there are reasonable grounds for the subjective fear, not whether the facts underlying that fear can be proven beyond a reasonable doubt. In these circumstances, Parliament cannot be taken to have intended that the judge strictly apply the rules of evidence. This latter point is reinforced by noting that the test for granting a peace bond is no different if the application is made by a person concerned about personal safety. It would defeat the purpose of the provisions if such a person could not rely on hearsay evidence to justify a reasonable fear of harm, but could only secure the protection of a peace bond on strictly admissible evidence.

… The role of the judge is to assess whether the grounds tendered in support of the stated fear are objectively reasonable and sufficient to justify the imposition of a recognizance with terms and conditions. In my view, hearsay evidence that is credible and trustworthy is relevant to that question. [Emphasis added]

[25] In R v Zeolkowski, the Supreme Court dealt with the evidentiary requirements in a firearm hearing context – an analogous proceeding to that before this court. Finding that the rules of evidence were not intended to be strictly applied, Sopinka J. noted:

Section 98(4) enables a peace officer acting on reasonable grounds to apply to the provincial court judge for an order prohibiting a particular person from possessing a firearm. Clearly, the peace officer is not required to act solely on the basis of evidence that would be admissible at a trial (see Eccles v. Bourque, [1975] 2 S.C.R. 739, at p. 745; R. v. Collins, [1987] 1 S.C.R. 265, at p. 279). At the hearing of the application pursuant to s. 98(6), the provincial court judge must be satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person or of others that the subject of the prohibition application should possess a firearm. The provincial court judge thus confirms the existence of the reasonable grounds which led the peace officer to launch the application. In my opinion, it was not intended that the provincial court judge strictly apply the rules of evidence. The provincial court judge must simply be satisfied that the peace officer had reasonable grounds to believe as he or she did: in other words, that there is an objective basis for the reasonable grounds on which the peace officer acted. [Emphasis added.]

[26] Where I depart from the Crown's position is the application of sentencing hearing reasoning to the admissibility of evidence on a peace bond hearing. Sentencing hearings involve a fundamentally different balancing of interests than exist at trial, or for that matter when a court is called upon to determine a defendant's liberty interests short of criminal conviction – be they firearm prohibition inquiries or peace bonds. Trial evidentiary rules act as a steward for the presumption of innocence and a guard against wrongful conviction. Once the presumption of innocence is displaced, the court's emphasis shifts towards a broader range of information to focus upon protecting society and rehabilitating offenders. The fact that significant liberty determinations can be made, particularly in dangerous offender hearings, is of no matter. It is not the resulting liberty impact upon the defendant that drives the applicable evidentiary standard. Instead, it is the purpose of the inquiry. The stigma attached to a peace bond or firearms prohibition order, and the policy reasons supporting these justice tools, are categorically distinctive from punishment determinations after criminal conviction.

[27] How to apply the "credible and trustworthy" standard to the proffered institutional records before this Court is the principal issue here. The distinction between admissibility and weight crystalizes when considering hearsay evidence.

[28] However, caution must be exercised. Not all hearsay, regardless of its source, is "credible and trustworthy" on spec. For example, in the context of a bail hearing, Durno J. in R v Downey discouraged the use of police occurrence reports respecting uncharged events with some fruitful words of caution:

I appreciate that as a result of the need for expeditious determinations of bail issues, that the rules of evidence are relaxed. However, they are not abdicated. In cell phone cases, we hear and read of tower dumps. Bail hearings should not become police file dumps of everything in a police file or computer with the accused's name anywhere in it. Just because a police officer has recorded something someone has told him or her in an occurrence report, does not mean it is admissible at a bail hearing or anywhere else. It is impossible to determine if any of the uncharged incidents were "credible" or "trustworthy". There is no way to test it. No sources are given, no reasons are given why no charges were laid. The references to police being involved with him, without more, are irrelevant.

[29] Where there is an ability to assess the weight that ought to attribute to a police occurrence report, Durno J was prepared to envisage some circumstances in which they could be admitted "[but] they should not be routinely admitted simply because they are occurrence reports and nothing more." Indeed, the inability to test the underlying information contained in them creates an unfairness given the liberty interests at stake. In R v Powers, Lerner J. addressed the issue in a bail review proceeding:

. . . the stricter application of the rules of evidence in the trial process are not necessarily applicable as long as each party has a fair opportunity of correcting or contradicting any statement or evidence he considers prejudicial to his position on such application. [Emphasis added]

[30] In sum, I find that the evidentiary standard to be applied in a peace bond hearing has been settled. As it is not a trial, all "credible and trustworthy" hearsay evidence is admissible. The jurist is then left to weigh the remaining hearsay evidence when assessing the subjective and objective reasonableness of the informant's fear that a personal injury offence will, otherwise, be committed.

(a) What is "Credible and Trustworthy" Evidence?

[31] As mentioned, in Budreo our Court of Appeal endorsed the reception of hearsay evidence in s. 810 hearings so long as the evidence is deemed "credible and trustworthy". The expression "credible and trustworthy" has both common law and statutory history. In the context of bail hearings, "credible or trustworthy" is the principal measure for assessing admissibility of evidence. There, hearsay evidence has been accepted as admissible under s. 518(1)(e) of the Criminal Code. It has been held that "credible" qualifies the receipt of direct evidence, while "trustworthy" refers to hearsay evidence. The "credible or trustworthy" standard is often evaluated based upon what effective means exist to test the dependability of the evidence.

[32] In R v Francis, Ratushny J concluded that a preliminary inquiry judge should, when assessing s.540(7) and the "credible or trustworthy" standard, determine whether the proffered information meets a "prima facie air of reliability" – a standard below the need for "circumstantial guarantees of trustworthiness" relevant to the trial standard of admission under the principled exception to the hearsay rule.

I think it clear, however, that what is not being referred to in subsection (7) is the ultimate consideration of the credibility of the intended evidence or the ultimate weighing of it, because of course that is to be left for the trier of fact at trial after all of the trial evidence has been heard. I agree with Wright J. in Muzhikov, supra, at para. 42, that the information sought to be introduced under subsection (7) has to have at least a prima facie air of reliability to allow it be admitted on the preliminary inquiry toward a consideration as to whether there is some evidence for a jury to properly consider at trial.

I also think that subsection (7) deals with a lower evidentiary threshold than would be the case at trial. In Alton, supra, while I don't disagree at all with the justice's decision that the proposed evidence was sufficiently credible or trustworthy to be admitted under subsection (7), in coming to his conclusion, he made findings akin to the standard of "circumstantial guarantees of trustworthiness" applied to the introduction of hearsay at trial. This is an evidentiary threshold applied to the admission of hearsay evidence at trial and I don't think the evidentiary shortcut contemplated by subsection (7) requires the same degree of trustworthiness. The subsection itself implies a lesser threshold of admissibility by allowing the receipt as evidence of "any information that would not otherwise be admissible". The consideration of whether the tendered information is "credible or trustworthy" remains only a threshold question of admissibility in the context of the screening function of a preliminary inquiry, meant to protect the accused from having to deal with information that would not amount to being considered as any evidence at all upon which a reasonable trier of fact properly instructed could convict.

This prima facie air of reality, at the threshold stage of admissibility, is a helpful marker for assessing whether the proffered CSC reports meet the credible and trustworthy standard.

(b) How Does Hearsay Opinion Evidence Intersect?

[33] How can a court reconcile opinion evidence requirements, at common law, with the evidentiary standard relevant to a peace bond hearing?

[34] Opinion evidence is presumptively inadmissible. When rendered admissible, it is used to assist the trier of fact in areas where the expert has relevant knowledge or experience beyond that of a lay person. A two-step process is engaged in determining the admissibility of expert evidence. First, threshold requirements must be met: logical relevance, necessity to assist the trier of fact; the absence of an exclusionary rule; and a properly qualified expert. Second, a gatekeeper function requires the jurist to conduct a cost benefit analysis balancing the potential risks and benefits of admitting the evidence in order to decide whether the potential benefits justify the risks.

[35] The Respondent contends that these three categories of CSC reports contain inadmissible opinion evidence. Such evidence is presumed inadmissible unless proffered by a qualified expert. Some of these documents are overt expert reports from psychologists who performed formal risk assessments. Others are rehabilitative program reports or parole officer summaries built, at least partly, upon the foundation of previous psychological assessments. They rely upon and interpret the previous expert findings, update the Respondent's rehabilitative status and form conclusions for parole recommendations. In essence, the Respondent contends that if the Crown intends not to go through the admissibility front door by calling expert evidence testimony, they ought not be permitted to enter this evidence through a documentary back door depriving the Respondent of an opportunity to challenge this evidence.

[36] The Respondent further objects to the contextless presentation of the documentary evidence in its written form. Beyond the conclusions offered, little guidance is offered respecting the actuarial tools employed, the clinical mechanisms used or their meaning. This Court is left with an insufficient foundation to assess, independently, the methodologies utilized or the veracity of the findings.

[37] Finally, the Respondent contends that the Crown has failed to comply with s. 657.3(1) of the Criminal Code. No affidavit or declaration from the authors of the proffered expert reports have been filed attesting to their qualifications to provide opinion evidence. I can dispense with this concern summarily. Formal compliance with the expert notice protocols of s. 657.3, found in Part XX of the Criminal Code, is an example of imposed rules of evidence and procedure applicable to trials. This proceeding, as discussed, is anchored in Part XXVII where trial evidentiary and procedural obligations do not apply. Therefore, the Respondent cannot find solace in a strict application of s. 657.3 to a proceeding that falls outside 'trial' parameters.

[38] The Crown responds simply. There is a developing practice of admission of custodial institutional records in 810.2 hearings. Admittedly, many of these cases appear to have been consent admissions by the parties. I observe that many also appear to have been admitted alongside the calling of expert evidence which, presumably, impacted their admissibility. Nevertheless, any concern over the nature of the evidence proffered can be filtered by this Court when it assesses the weight to be given to each evidentiary piece. The weight granted this evidence is to be distinguished from its admissibility, particularly considering the more relaxed 810.2 evidentiary regime. Further, if the defence wishes to challenge the documentary evidence they can seek to cross-examine report authors with the court's leave, presumably in the vein of a s. 540(9) Criminal Code order at a preliminary inquiry.

[39] The Crown, relying upon Ares v Venner, contends that these records (like the hospital nursing notes from that decision) were crafted by persons with "personal knowledge of the matters being recorded and under a duty to make the entry or record." The Respondent does not dispute that the Ares v Venner preconditions are present. However, he argues that the nature of the records (expert opinion vs. nursing observations) is meaningfully distinctive.

[40] At this admissibility stage, only "credible and trustworthy" evidence can be admitted. Without calling a qualified expert witness, concerns respecting the meaning of risk assessment results, the tools utilized to obtain them, the classifications used to label results and the terminology used to explain them impact the capacity of this Court to discharge its gatekeeper function. The White Burgess two-step admissibility inquiry applies to both civil and criminal cases, therefore it includes the balance of probabilities burden applicable here. As it relates to expert evidence, how else is this Court to assess the trustworthiness of opinion evidence than by application of the White Burgess process? If I do not require a qualified expert to provide this evidence, I endorse an imbalance between the parties by admitting evidence that cannot be meaningfully challenged. I cannot shift the evidentiary burden. Even on this civil standard, it is the Crown's obligation to admit "credible and trustworthy" evidence and not, for any respondent, to challenge the evidence's reliability after its admission.

[41] As mentioned, the Crown's proposal to call only the Informant in this hearing obviously influenced the Respondent's challenge of the subject documents. The Crown has responded to admissibility concerns by inviting the Respondent or this Court to direct the cross-examination of any CSC authors. I was surprised by this submission as, in the usual course of evidentiary rulings, the Respondent is required only to meet the case before it. Regardless of how this court ultimately determines the weight to be granted any of these contested records, the Respondent is perfectly entitled to rest upon the Crown's presented case and argue that no or minimal weight should be afforded the contested records under the objective reasonableness analysis. Why seek to cross-examine the records' authors and run the risk of, in so doing, buttressing the weight attributable to that evidence, let alone allowing the court to rely upon the viva voce opinion evidence of those testifying? Unlike the preliminary inquiry context, here the evidence is substantively weighed and relied upon to found liberty affected conclusions.

[42] In R v Falle, Ketchum J. explored this issue in response to a defendant's application to cross-examine CSC officials who authored reports submitted as part of the informant's relied upon documentary record. There, as here, the sole witness called by the Crown was the Informant, a detective with no personal knowledge of the defendant. The informant's information came exclusively from his police file and the reports from Correctional Services Canada officials, including their medical consultants. The court allowed these CSC records, without the requirement that their authors be called to testify, on the basis of the business records exception to the hearsay rule and the lesser evidentiary standard applied in peace bond hearings. So, the Respondent can be forgiven for not relying upon the prospect of cross-examination as an adequate or even available remedy to contest the usage of these institutional records.

[43] In the absence of testimony from a qualified expert, identified expert reports may become meaningless. Meaningless reports cannot be assessed as trustworthy, regardless of their source. This court cannot abdicate its gatekeeper function to Correctional Service Canada and any associated quasi-judicial process utilizing its product. In R v George, Horkins J. observed:

Many s. 810 applications require nothing more by way of evidentiary foundation than the criminal history of the defendant to secure an order. However, in the situation where the Crown's application is not made out on the basis of a record of past behaviour alone, it may well be that a solidly based forensic threat assessment will be required. From a standard of proof perspective, this kind of interpretive opinion will invariably carry more weight coming from a qualified forensic psychiatrist or psychologist than from a layperson. [Emphasis added]

[44] More to the point, the Alberta Court of Queen's Bench, in R v Ottertail, addressed this issue head on in what I find to be a persuasive analysis. There, the respondent successfully appealed a s. 810.2 order on the basis that two Crown witnesses gave opinion evidence without expert qualification. These witnesses provided evidence about the respondent's institutional risk assessment results in support of their conclusion that the respondent was a risk to re-offend. The reports were entered as exhibits from the respondent's CSC file, inclusive of psychological and risk assessment reports. Unlike what is proposed here, the Crown called a registered psychologist from CSC to review and explain the assessment reports filed as part of the respondent's institutional file. This psychologist did not author the reports nor did she administer the tests, but had the qualifications to do so. The reports, themselves, were ruled as admissible hearsay for the purposes of the peace bond hearing. However, by applying the White Burgess test Ackerl J. ruled that "during a s. 810.2 hearing, opinion evidence regarding future risk must be tendered by a qualified expert witness." He noted the barriers a respondent faces when confronted with the admission of this form of evidence in a peace bond hearing and the prejudice this evidence may pose, if unqualified, given its application to the central issue – future risk:

In a peace bond hearing the Judge must be satisfied the informant subjectively feared the subject will commit a serious personal injury offence, and that there were objectively reasonable grounds for that belief. To determine existence of reasonable grounds, the Hearing Judge must assess the credibility and reliability of evidence the informant relied on. If the expert opinion is provided without qualifying the expert witness, that assessment is irrevocably compromised.

This [White Burgess] staged inquiry applies to both civil and criminal cases. Consequently, it is applicable to peace bond hearings even assuming they are akin to civil proceedings as observed in R v Bilida.

The preconditions for admissibility include a requirement that expert evidence must be advanced by a properly qualified expert. This qualification exercise is crucial to the hearing judge properly discharging a gatekeeper role. In example, it explores witness qualifications and independence, opinion boundaries and ultimately, the cogency of permitted testimony.

Absent this process a defendant in the s 810.2 hearing cannot cross-examine the nature of the expertise relied upon to form the opinion. Nor is there any finding on the subject and scope of the expertise. In the absence of qualification, the Court has no basis upon which to assess the reliability and credibility of the witness testimony.

In this case, the opinion evidence closely informed the ultimate issue of the offender's future risk. A peace bond recognizance, containing numerous restrictive clauses, issued for a period of two years. Under the circumstances, failure to require admission of otherwise presumptively inadmissible evidenced through a qualified expert was an abdication of the Court's gatekeeper role. [Emphasis added]

[45] Buttressing this conclusion, Horkins J. in R v George assessed the weight of proffered opinion evidence through an officer, not a qualified expert. While that court's analysis occurred at the back end, it shared the concerns later expressed in Ottertail in ultimately dismissing the opinion evidence:

Having now heard all of the evidence in this matter, I am not at all comfortable with the proposition that the interpretation of these tests is something that a layperson has sufficient expertise with to satisfy the requisite degree of reliability required in this s.810.2 application. In hindsight, although the evidence was conveyed in terms of the actual scoring of these diagnostic tools, the evidence attempts to be forensic psychiatric or psychological opinion evidence, an area actually outside the qualifications of the witness.

In all fairness to Detective Sergeant Sheil, throughout his evidence, he demonstrated an appropriate awareness of, and respect for, the legal limitations of his "expertise". He consciously tried to confine his opinions appropriately with that in mind. This aspect of his evidence ironically illustrates one subtle danger of this kind of forensic evidence coming forward through someone with different qualifications. It was difficult for counsel to challenge the conclusions given because the limitations of Detective Sergeant Sheil's qualifications prohibited him from engaging in anything but a surface analysis of the test results. The ultimate weight of the conclusions based on this evidence suffers accordingly. [Emphasis added]

[46] By proceeding as planned, the Crown presents this Court with a 'chicken or the egg' conundrum. What comes first: an expert report or reliable opinion evidence? I must conclude the latter. The CSC reports must be assessed through the credible and trustworthy filter, and reliability goes to the heart of trustworthiness. As noted in Schafer, "[it] is important to emphasize that the hearsay evidence should be in a form that allows a judge to assess whether it is credible and trustworthy." As presented here, I cannot conclude that an unqualified expert report meets the trustworthiness threshold. They are presented without source qualification and, as such, are devoid of a "prima facie air of reality". These reports must have some meaning before this Court can attached a trustworthy label. An official source, even one under a statutory compulsion to report, cannot amplify a report without contextual meaning. And a meaningless report, one that has not been deemed necessary or reliable in its proffered conclusions, cannot be assessed as trustworthy.

[47] Given the Crown's present intention to file opinion hearsay evidence, I conclude that any CSC reports identified as predominantly expert evidence do not meet the credible and trustworthy threshold for admission at this peace bond hearing.

Application to CSC Reports Admissibility

(a) CSC Psychological Assessment Reports

[48] These documents are plainly expert reports. They report on scientific methods outside the direct knowledge or experience of this Court and the findings are relevant and, arguably, necessary to assist in determining the Respondent degree of risk to the community. On their own, they would be inadmissible in a trial setting unless the Mohan standard was applied. The Crown's determination to simply file these reports disregards that process. But, this is not a trial setting. As discussed, credible and trustworthy evidence can be admitted before this court to be weighed alongside other admissible evidence. In Schafer, the Yukon Court of Appeal went as far as to declare that hearsay evidence is "presumptively admissible in order for a judge to assess whether reasonable grounds exist for the informant's fear that a defendant will commit a serious personal injury offence." This, it seems to me, relegates the court's credible and trustworthy assessment to a later phase of weight assessment alone and provides the Crown with carte blanche admissibility for hearsay evidence. For the reasons already outlined, I cannot accept this scattershot approach to admissibility, even on a peace bond hearing.

[49] Unqualified opinion evidence frustrates my ability to assess an expert report's trustworthiness. While I cannot image what weight could be attached to an unqualified expert report's conclusions respecting such a central issue as the Respondent's risk to the community, that calculus is premature. If these reports are devoid of trustworthiness, they cannot be admissible on a threshold basis.

(b) CSC Correctional Plan and Assessment for Decision

[50] As referenced, these reports organize and summarize expert opinion evidence respecting the Respondent's classified risk for reoffending. Detailed dynamic and static factors are applied to the Respondent's offending and institutional narrative and the results are interpreted for purposes of making release or programming recommendations. Where the reporting of opinion evidence ends and interview/observation takes over is a fine line to draw. But, I find that this line can be drawn at the admissibility stage.

[51] These are not expert reports. Instead, there purpose is to provide a status assessment of the Respondent's institutional efforts at mitigating risk. While they report and rely on some expert conclusions, they are crafted towards making parole board recommendations. The organization of the information and expert data collected does not, in my judgment, move these reports outside a layperson's understanding. However, where expert conclusions converge with other observations, I will have to delineate and assess what weight can be afforded during the evidentiary assessment phase of this application.

[52] Further, these reports are relatively transparent in their sourcing and described meaning. On their face they can be scrutinized to some effect. The Crown's emphasis on the source of this documentation, while not conclusive, is also relevant. As is the fact that the Informant reviewed and relied upon these records to form his reasonable grounds to believe that the Respondent would commit a serious personal injury offence. As noted in Flett, and relevant here:

CSC personnel rel[ied] on this information. It was part of the warrant expiry package provided to the officer who swore the information and on which he was allowed to consider. The court was required to review the information available to the officer to determine if there was sufficient information to justify the swearing of the information on reasonable and probable grounds.

They are, therefore, relevant to the Informant's subjective belief in the grounds he formed. As such, having considered their source, the manner of reporting, and the nature of the information detailed therein I find that they are sufficiently trustworthy and are, therefore, admissible.

(c) CSC Institutional Programs Performance Reports

[53] These reports are distinctive from the former two categories. They do not, at least overtly, rely upon opinion evidence and, instead, chronical the Respondent's progress in rehabilitative programs and, based upon certain identified risk factors, suggest further work or programming that may be required. This Court is fully capable of digesting these reports as presented. In their totality, I do not find them to be expert reports suffering from the same affliction that the Respondent identifies. They present conclusions grounded in reported observations and criteria based upon interviews with the Respondent. They are sourced and reported consistently with the previous CSC records. I find them sufficiently trustworthy to ground their admissibility.

The 'Business Records' Route to Admissibility

[54] The Crown also relies upon a statutory route - s. 30 of the CEA – for admissibility of the referenced CSC documents. Acknowledging their hearsay status, these records are said to have been prepared in the usual course of business made contemporaneously by someone having knowledge of the matters and being recorded under a duty to make the entry.

[55] Provided with the common law "credible and trustworthy" threshold test to assess the admissibility of hearsay evidence in peace bond hearings, I find it superfluous to undertake an alternative statutory route to admissibility of these records. Surely, any statutory route would be required to satisfy the adapted principled approach endorsed by Budreo. In effect, if a hearsay record is not found to be credible and trustworthy it would inherently bely admission as a 'business record'. However, if I am wrong, the application of the exclusionary rules found in s. 30 of the CEA, to be discussed, produce the same result.

[56] The rationale supporting a 'business records' hearsay exception is grounded in both necessity and practicality. Finding an author of a particular business record in a large governmental setting and securing their attendance in court to verify the record often does not add probative evidence beyond the information apparent on the record itself. Drafted in the context of an everyday business purpose, statements made are presumed to have a circumstantial guarantee of trustworthiness and hence are admitted as evidence of the truth of their contents. It is presumed not to be good business practice to falsify records and the repetitive nature of such records bodes to the likelihood of their accuracy.

[57] Here, no objection was made to a characterization of these records being fashioned in the usual and ordinary course of business. I have no evidence before me to indicate how and under what circumstance these records were and are kept. It has been submitted, apparently supported by common law findings respecting similar CSC records, that Correctional Service Canada creates and keeps these records to inform ongoing administrative purposes and they are under statutory compulsion to do so fairly. What is implicit in the review of these documents is that they were produced, contemporaneously, for internal purposes other than that purpose proposed here by the Crown. Upon my review of the Informant's affidavit relating to the source of these materials, and based upon their uncontested content respecting how and the reasoning behind their preparation, I am content to conclude that they qualify as 'business records'.

[58] However, the CEA imposes limitations on the scope of admissibility for application of the business records exception. Those relevant to these proceedings, include:

• where oral evidence in respect of a matter would be admissible;
• a record made in contemplation of a legal proceeding;
• a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;

[59] The Respondent contests the receipt of these records where, if a witness was otherwise available to testify to its content, that evidence would be inadmissible. In other words, do these records contain inadmissible hearsay if the record's author testified? For example, these records have double hearsay references where an author summarizes reports, conclusions and the observations of others. Dispensing with this complaint, the Saskatchewan Court of Appeal in R v Martin addressed the practical reality of double hearsay in business records:

Section 30 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.

[60] An associated complaint relates to the presence of opinion evidence within these records and the propriety of the Informant presenting that evidence. The Respondent argues that without a Mohan ruling permitting the receipt of opinion evidence from a qualified expert, much of the information proffered in these reports would be inadmissible. As the Crown does not intend to call the authors of these reports, and as such not have them qualified to provide opinion evidence, receipt of opinion evidence is patently inadmissible. This issue was already canvassed and the result must necessarily be the same.

[61] The Respondent claims that the CSC records in question were prepared in contemplation of a "legal proceeding", a prohibited ground for CEA admission. The legal proceeding suggested was the Respondent's parole board hearing. In R v Toulejour, Nightingale J. found that 'warrant expiry package' materials (not unlike the materials before me) were prepared in contemplation of a legal proceeding – that being a parole board hearing, per s. 30(12) of the CEA. Given the broad scope afforded the statutory definition of "legal proceedings" I agree. But, as that court rightly observed, there is a difference between:

a document which has been created for the purpose of legal proceedings [810.2 hearing] and one which existed before for some other purpose [parole board hearing] but has now been added to a compilation of documents for the purpose of legal proceedings. In the former instance the document may be excluded by application of s. 30(10)(a)(ii), while in the later instance it may not.

The Respondent contends that the documents at issue were prepared in contemplation of a parole board hearing. I entirely agree. Unlike the circumstance in Toulejour, I conclude that the selected documents before me are a fraction of the overall materials submitted on this application and relied upon by the Informant. They were prepared for an entirely different purpose and, as part of a larger package, are included to buttress the Informant's fear that a serious personal offence will occur. It would be untenable to prohibit the Crown from submitting these supporting materials through application of s. 30(10)(a)(ii). Had these records been crafted solely in contemplation of this 810.2 application, I would exclude them in the absence of viva voce evidence from their authors. They were not.

[62] The Respondent observes that at the foundation of these CSC records are his attributed comments from psychological and case worker interviews. Much like an accused at trial, the Respondent is not a compellable witness for the Crown on this application. As such, it is submitted that his hearsay admissions should not be available to the Crown through the filing of these records. As they substantively inform the reports, the reports should not be admissible by application of s. 30(10(a)(iv) of the CEA.

[63] Available common law respecting the non-compellable witness exception focuses largely upon spousal and non-accused statement scenarios. The reason, to me, appears obvious. It was not the intention of Parliament to enact an exclusionary rule inconsistent with an existing common law exception to the hearsay rule – admissions against interest. Admissions are presumptively admissible subject to whether they were made to a person in authority. On the evidentiary record before me I cannot conclude that the Respondent's interviewers and report authors were persons in authority for purposes of receipt of this evidence. Voluntariness, therefore, is not a feature of this analysis and the statements' weight remains to be assessed at a future time. At this point, the reliability of these attributed statements has not been challenged. The fact that the Respondent is not a compellable witness, for purposes of s. 30(10(a)(ii), is not a bar to admission.

[64] Which brings me to the principle objection from the Respondent. There is a difference between "data" collected in records in the usual course of business and the opinion evidence found within these CSC records. The subjective opinion of psychologists, case managers or parole officers, based on their perception and unchallenged by cross-examination, is not as trustworthy, it is argued, as the recording of purely objective data. This argument found favour in the interpretation of the like Ontario Evidence Act provisions. In Aynsley v Toronto General Hospital, the court found that the admission of business records ought to contain only objective facts:

Now, I think I must go to the words, "any act, transaction, occurrence or event is admissible". Clearly, I think that would mean that such routine entries in a hospital record as the date of the admittance, the tie of admittance, the name of the attending physician, the routine orders as to care of the patient such as the administration of drugs, notation by the nurse of taking temperatures, all of these things, are "acts, transactions or occurrences" which take place routinely and which are recorded routinely in the hospital.

While this argument has intuitive appeal, I cannot ignore the substantive distinction between the federal and provincial legislation. The Canada Evidence Act allows for the admissibility of records "in respect of a matter" in contrast to the Ontario Evidence Act's more restrictive allowance of records of "any act, transaction, occurrence or event." The term "matter" does not, by implication, exclude records containing subjective opinions and, as such, I cannot conclude, on its generalized wording, that the CEA provisions are restricted to objective "data" as suggested by the Respondent.

[65] While I believe that the CEA provisions for admissibility are subsumed by the common law admissibility standard for peace bond hearings, I cannot ignore that admission of institutional records as 'business records' pursuant to s. 30 of the CEA finds precedent on both sides of this divide. The Crown relies upon numerous authorities where admission of CSC records were grounded in CEA authority. In the oft-cited R v Flett, the Saskatchewan Court of Queen's Bench recognized the "well established" practice of recognizing CSC records as documentary evidence defined by s. 30(1) of the CEA. Where admission was not permitted under the CEA, more technical compliance reasoning was predominant or, the content was otherwise subject to an exclusionary rule (e.g. opinion evidence proffered by an unqualified expert).

[66] What is noteworthy about these decisions, however, is the absence of reference to expert reports (e.g. psychiatric or psychological assessments) as part of their documentary admissions per the CEA. There may have been no expert evidence in the subject reports. Or, it may reflect the manner for which the Crown lead evidence during its application – choosing, instead, to call an expert(s) for formal risk assessment opinions and admitting the reports in support of that testimony (in the usual course).

(a) CSC Psychological Assessment Reports

[67] As I have found, these expert reports are not admissible as they cannot be assessed as trustworthy without expert opinion testimony. However, were I left with only a CEA admissibility route I would reach the same conclusion. They are not admissible under s. 30 of the CEA as their admission would run contrary to the opinion evidence exclusionary rule. The CEA is not intended to replace common law principles of admissibility, but, instead, offers a practical short cut to unnecessary viva voce evidence.

(b) CSC Correctional Plan and Assessment for Decision

[68] I find that these records qualify as 'business records' contemplated by s. 30 of the CEA. Further, as they are not expert reports, they do not violate the opinion evidence rule. I am satisfied that they were crafted in the in the usual and ordinary course of business and, as discussed, are not subject to the s. 30(10) exclusionary provisions.

(c) CSC Institutional Programs Performance Reports

[69] Distinctive from the other records, these reports meet all the statutory 'business record' parameters. They were made in the usual and ordinary course of business and are not the subject of any other exclusionary provision.

Conclusion

[70] I have concluded that the CSC psychological assessment reports (Tabs F, G and H of the Crown's documents brief) do not meet the credible and trustworthy threshold for admissibility on their face. Nor, are they admissible under s. 30 of the CEA. Should these reports be presented by a qualified expert in support of admissible opinion evidence, my conclusion may be different.

[71] I have concluded that the CSC correctional plan and assessment for decision reports (Tab I), as well as the institutional programs performance reports (Tab J) meet the credible and trustworthy threshold for admissibility. There are also admissible under s. 30 of the CEA.

[72] Finally, I have not been provided signed copies of any of the proffered CSC reports, either by their authors or the Respondent. While this was not the subject of submissions I note, as did the Crown, that some of these records contain language affirming that the Respondent was made aware of the limited confidentiality and usage to be applied to these records. Without any signature confirming receipt and/or review of any of these reports I leave open the prospect of further submissions respecting the authenticity of these records beyond the uncontested attributions of the Informant. As such, these admissibility findings are provisional until counsel address this issue or true and signed copies are provided.

Released: August 13, 2020

Signed: Justice M.B. Carnegie