Commission de la Santé & de la Sécurité du Travail c. La Reine, docket T-2492-84

                                                                                                                                  Date: 20001106

                                                                                                                             Docket: T-2492-84

BETWEEN:

COMMISSION DE LA SANTÉ ET DE LA SÉCURITÉ DU TRAVAIL

Plaintiff

- and -

HER MAJESTY THE QUEEN

Defendant

REASONS FOR ORDER AND ORDER

BLAIS J.

[1]         This is a motion by the plaintiff for a ruling on the admissibility in evidence of a portion of an expurgated version of a report dated June 20, 1984, prepared by the Canadian Armed Forces, the subject of which is the same as the one in dispute in this proceeding, namely, weaknesses in the maintenance of security and control over access to weapons and munitions at the Carp Military Base in 1984.

THE FACTS

[2]         To facilitate the progress of this case, the parties agreed to hold a pre-trial conference on December 16, 1999. On February 3, 2000, the pre-trial conference resumed and there was a discussion about simplification of the issues in the action pursuant to Rule 263(b) of the Federal Court Rules, 1998.

[3]         On March 21, 2000, the plaintiff sent a letter to the defendant in which it proposed to the defendant two options pertaining to the possibility of admissions as to the facts as well as admissions already disclosed by the proceedings.

[4]         The first option was that the parties agree to place in the record the testimony of the various soldiers contained in the Report of the inquiry by the Armed Forces Committee (the "Report") on the events of May 8, 1984 and the transcript of the testimony given in the courts of criminal jurisdiction in Quebec.

[5]         The second option was that the defendant admit certain factual items listed by the plaintiff in its letter that were all directly related to the testimony given by the soldiers to the Armed Forces Committee in May and June, 1984, or comments included in the Report, or other out-of-court statements.

[6]         Following the pre-trial conference of March 29, 2000, it was ordered that the defendant answer, by June 30, 2000 at the latest, the list of possible admissions that the plaintiff had sent the defendant.

[7]         On June 28, 2000, the defendant sent a letter to the plaintiff in which the defendant agreed to file in evidence the transcript of the testimony of all the soldiers heard by the Armed Forces Committee of Inquiry with the exception of the testimony of Captain York, now deceased, and for the time being of Corporal Jean-François Forrester and MWO Patrick Muise, whom the defendant had not yet managed to meet. The defendant also agreed to file the testimony of the soldiers who had appeared in the Quebec Superior Court, Criminal Division, during the first trial of Denis Lortie, with the exception for the time being of the testimony of Corporal Forrester.

[8]         The defendant's consent was, however, conditional upon such consent not being interpreted as a waiver by the defendant of any objection, for the reasons set out in their pre-trial conference memorandum, to the filing in evidence of the Report of the Committee of Inquiry.

[9]         Following the pre-trial conference of June 20, 2000, it was ordered that:

[Translation] The plaintiff will decide within a few weeks whether it will present a motion to oblige the defendant to file the inquiry Report, which the defendant refuses to do.

[10]       On July 12, 2000, the plaintiff communicated to the defendant its intention to apply to the Court for a decision on the admissibility in evidence of the Army's expurgated Report.

PLAINTIFF'S SUBMISSIONS

[11]       The plaintiff submits that in determining the admissibility of a document in evidence, the notion of relevance is crucial.

[12]       The plaintiff alleges that the general relevance of the disputed Report is obvious in light of the December 22, 1989 decision of Mr. Justice Addy in the present case.

[13]       The plaintiff further submits that in mentioning the investigative Report in its affidavit, the defendant itself conceded the Report's relevance, in light of the language in Rule 222(2) of the Federal Court Rules, 1998.

[14]       The plaintiff argues that the evidence that the internal Report constitutes is essential, if only to enable it to demonstrate that the allegations of absence of negligence contained in the defendant's statement of defence are clearly contradicted by an internal report that emanates from the defendant itself and that was prepared contemporaneously with the events.

[15]       The plaintiff also notes that the defendant did not claim any privilege of non-disclosure in relation to the Report since the Report is listed in Schedule 1 to its amended affidavit of documents of December 15, 1999.

[16]       The plaintiff argues that the investigative Report is highly prejudicial to the defendant and, because it emanates from the defendant itself, the Report does not constitute hearsay.

[17]       The plaintiff argues that the observations recorded in the investigative Report and the recommendations and disciplinary decisions it contains are comparable to extrajudicial statements, if not admissions of negligence emanating from the defendant itself, which are binding upon it and enforceable against it.

[18]       The plaintiff also suggests that it would be incongruous, contrary to the sound administration of justice and the interests of justice in general and of the plaintiff in particular, if a document that is highly relevant and crucial to the resolution of the dispute could not be submitted for assessment to the court responsible for hearing and determining the matter when the opposing party, from which the document emanates, has already given copies of it to the media.

[19]       Lastly, the plaintiff argues that the admissibility in evidence of the Report will promote the most just, the most expeditious and the least expensive determination possible of the proceeding, since the parties will now be able to understand more clearly a part of the evidence that will be submitted to the assessment of the court, and may prepare for trial more effectively, and even be in a better position to assess the appropriateness of such a trial.

DEFENDANT'S SUBMISSIONS

[20]       The defendant argues that the investigative Report is inadmissible as evidence because, she says, the Report is hearsay and/or opinions that cannot, for lack of probative value, bind or influence the court before which its production is requested.

[21]       The Report is not relevant, the defendant says, since it is only a record of opinions and the opinions, other than those of experts, are devoid of any evidentiary weight and cannot establish the investitive facts claimed by the plaintiff.

[22]       The defendant argues that it is the task of the trial judge to frame his opinion on the issues that are relevant to the resolution of the dispute and that the opinions that the Committee of Inquiry or the constituent authority might have expressed, while related to the facts in this case, cannot be binding on or influence the trial judge in any way.

[23]       The defendant argues that the absence of a claim for privilege against disclosure cannot establish any relationship between this lack of claim for privilege and the admissibility of the document in evidence, since there are some fundamental distinctions between the traditional rules of admissibility of evidence and the rules for excluding evidence based on public interest privileges.

[24]       The defendant submits that the plaintiff's argument that the Report escapes the hearsay rule because of its prejudicial nature is not representative of the reality since the Report states the findings of the Committee of Inquiry concerning the lack of a causal relationship between the actions taken by Denis Lortie and the defendant's negligence. The defendant argues that the Report is favourable to its case but that the admission of the Report would violate the most elementary rules of the law of evidence.

[25]       The defendant also alleges that the Report cannot be admitted in evidence as an out-of-court admission by the defendant, as the plaintiff is claiming.

[26]       The defendant argues that an out-of-court admission is the recognition of a fact and cannot concern anything but facts. The defendant alleges that the investigative Report is a record of opinions and as such is composed of statements of mixed fact and law and consequently cannot constitute an out-of-court admission against interest.

[27]       The defendant further submits that the conclusions drawn by a person other than the trial judge concerning issues relevant to the solution of a dispute are juridically of no relevance and are inadmissible in evidence since they cannot and should not influence the trial judge.

[28]       The defendant submits that the fact that a document is already in the possession of a third party is of no use when the issue is whether that document is admissible as evidence.

[29]       The defendant argues that Rule 3 of this Court cannot be used as an interpretative guide to the rules of evidence, still less enable the plaintiff to improve the substantive position it is advancing in its motion.

ISSUE

Is the Report dated June 20, 1984, prepared by the Committee of inquiry of the Canadian Armed Forces, admissible as evidence?

[30]       In The Law of Evidence in Canada^[1] (hereinafter The Law of Evidence in Canada), the tests for admissibility of evidence were discussed at page 21:

To be received evidence must meet two basic requirements. First, it must be admissible. Second, the trier of law must not have exercised his or her judicial discretion to exclude the evidence. Two further concepts make up the principle of admissibility. Evidence is not admissible unless it is: (1) relevant; and (2) not subject to exclusion under any other clear rule of law or policy. Therefore, the trier of law in determining whether a particular piece of evidence should be considered by the trier of fact will first consider whether it is relevant. If it is not, then it will be rejected. If it is relevant, then the trier of law will consider whether it is subject to any exclusionary rule of the law of evidence. If the evidence is subject to an exclusionary rule or is irrelevant, there is no generally recognized judicial discretion to nevertheless receive the evidence.

[31]       The relevance of evidence was defined as follows in The Law of Evidence in Canada, at page 22:

Pratte J. in R. v. Cloutier accepted a definition from an early edition of Cross on Evidence:

For one fact to be relevant to another, there must be a connexion or nexus between the two which makes it possible to infer the existence of one from the existence of the other. One fact is not relevant to another if it does not have real probative value with respect to the latter.

[32]       In The Law of Evidence^[2] (hereinafter The Law of Evidence), D. Paciocco and L. Stuesser explain the relevance of evidence as follows:

Evidence is relevant where it has some tendency as a metter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would appear to be in the absence of that evidence. To identify logically irrelevant evidence, ask, "Does the evidence assist in proving the fact that my opponent is trying to prove?"

[...]

Evidence is relevant where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than that proposition would be in the absence of that evidence. As the Supreme Court of Canada has said:

To be logically relevant, an item of evidence does not have to firmly establish, on any standard, the truth or falsity of a fact in issue. The evidence must simply tend to "increase or diminish the probability of the existence of a fact in issue." ... As a consequence, there is no minimum probative value required for evidence to be relevant.

[Emphasis added]

[33]       The plaintiff also cited a relevant passage in relation to the definition of relevance. In Domaine de la Rivière inc. v. Aluminium du Canada ltée, [1985] R.D.J. 30, LeBel J.A. stated:

[Translation]

The notion of relevance is assessed in relation to the parties' obligation to prove all of the essential elements of the claim.

Nadeau and Ducharme observe that in order to determine whether evidence is relevant, one must examine whether it helps to establish the investitive effect of the alleged right. It is necessary, therefore, to examine first the nature of the right that is claimed. Secondly, an attempt is made to determine whether the evidence that was provided establishes, or at least tends to show, the investitive or constituent effect of the right that is claimed. (See Nadeau and Ducharme, La Preuve, page 48; also Wigmore On Evidence, 13^th ed., p. 667).

[34]       At page 24 in The Law of Evidence in Canada, the authors wrote:

A fact will be relevant not only where it relates directly to the fact in issue, but also where it proves or renders probable the past, present or future existence (or non-existence) of any fact in issue.

[35]       In this case, I agree with the plaintiff that the Report is relevant and is related to the proceeding. The Report deals with the same matters raised by the plaintiff in its pleadings: the matters concerning the control of weapons and munitions at the time of the incident of May 8, 1984. The Report tends to increase or decrease, as the case may be, the probability of the existence of certain facts in issue.

[36]       It should be noted that the relevance of evidence adds nothing to its probative value at trial. Even if a document is admitted in evidence, the trier of facts must still determine at trial whether the document has probative value. At page 26 of The Law of Evidence in Canada, the authors refer to [1983] 2 S.C.R. 190">R. v. Morris, [1983] 2 S.C.R. 190, and state:

The accused was charged with trafficking in heroin imported from Hong Kong. A search of the accused's premises disclosed a clipped article on the subject of sources of supply of heroin in Pakistan. At issue was the admissibility of this article. McIntyre J. for the majority held that this was admissible circumstantial evidence. He stated that:

... an inference could be drawn from the unexplained presence of the newpaper clipping among the possessions of the appellant, that he had an interest in and had informed himself on the question of sources of supply of heroin, necessarily a subject of vital interest to one concerned with the importing of the narcotic.

Although McIntyre J. agreed that the probative value of this evidence was low, it was an error for the judge to confuse relevance with weight. His Lordship noted that if the article had been on sources of heroin supply in Hong Kong it would have had greater weight and if it had been a step by step guide to importing heroin its weight would have been greater still. Yet the clipping was nevertheless still relevant evidence and it should have been put before the trier of fact. The trier of law determines if the evidence is relevant. The trier of fact determines what, if any, weight is to be given to it. Obviously, where the judge is the trier of both fact and law the distinction becomes blurred and the weight to be given the evidence becomes paramount consideration. Without relevance the evidence can have no weight.

[37]       The question that must now be raised is whether the Report may be excluded under any rule of law.

[38]       The defendant argues that the Report cannot be admissible because it constitutes hearsay, owing in part to the fundamental differences between an investigation process, its mission and the rules governing it, and the traditional judicial process in the framework of which a person's civil or criminal liability is sought.

[39]       The hearsay rule has been defined as follows, at page 156 of The Law of Evidence in Canada:

Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein.

[40]       At page 157, the authors add:

Special attention has been given to hearsay as being particularly fraught with untrustworthiness because its evidential value rests on the credibility of an out-of-court asserter who is not subject to the oath, cross-examination or a charge of perjury. As Dickson J. stated in R. v. Abbey:

The main concern of the hearsay rule is the veracity of the statements made. The principal justification for the exclusion of hearsay evidence is the abhorrence of the common law to proof which is unsworn and has not been subjected to the trial by fire of cross-examination. Testimony under oath, and cross-examination has been considered to be the best assurances of the truth of the statements of facts presented.

[41]       In light of the preceding passages, it would appear that the disputed Report constitutes hearsay because the plaintiff is attempting to put the Report in evidence for the veracity of its content and also because the author of the Report will not be testifying about his findings at the trial, where he would be under oath and could be cross-examined.

[42]       There are some exceptions to the hearsay rule, however. One such exception has to do with reports produced by a party in the ordinary course of business. This exception to the hearsay rule is found in section 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5. However, it seems that Parliament did not intend to allow the admissibility as evidence of investigative Reports, since subparagraph 30(10)(a)(i) of the Act states:

[43]       However, in subsection 30(11), we read:

[44]       It appears from these provisions of the Canada Evidence Act that a document drawn up in the course of an inquiry may be admissible if there is some rule of law or legislation that allows its admissibility.

[45]       For example, an investigative Report might be admissible because it constitutes an exception to the hearsay rule: such as an expert's opinion, or statements by a party that go against its interest.

[46]       In D.C. Gem Craft Inc. v. Pafco Insurance Co. (1998), 40 O.R. (3d) 218, the Ontario Court of Appeal considered the issue of the admissibility of investigative reports under an exception to the hearsay rule. At issue in that case was the admissibility of an investigative report of an insurance company adjuster. The Court stated:

Documents produced in response to a discovery request, representing investigative reports made on behalf of a defendant, may be relied upon in evidence at trial by the opposite party even though technically "hearsay": Canada Cement LaFarge Ltd. v. Caterpillar Tractor Co. (1982), 29 C.P.C. 207 (Ont. H.C.J.). The insurance adjuster was in effect an agent of the respondent and the dangers the rule against hearsay is designed to prevent are not raised if this report is accepted into evidence. Accordingly, the trial judge should have accepted as evidence the report of the respondent's insurance adjuster in which the set-up theory was put forward.

Even if the report of the insurance adjuster cannot be admitted, discovery evidence given by a corporate representative on the basis of information from other persons, whether or not employees of the corporation, should be accepted as an admission against interest of the corporation unless when such evidence is given the person answering the question identifies a reservation as to the accuracy of the information or any reason why the information is "not adopted" or that the person offering it is not "prepared to live with the information as reflecting the truth for the purposes of the issues before the court": Claiborne Industries Ltd. v. National Bank of Canada (1989), 69 O.R. (2d) 65 at pp. 75-77, 59 D.L.R. (4th) 533 (C.A.).

[47]       At issue in Canada Cement LaFarge Ltd., supra, were two investigative reports on similar accidents caused by the defendant's equipment. The reports had been prepared by the defendant's employees.

[48]       The Ontario High Court held:

It appears to be part of the defendant Caterpillar's routine reporting system to have reports of incidents made by employees of its dealers sent, either directly to the company itself, or to its subsidiaries. These in turn are sent on to the defendant Catapillar and eventually get to the appropriate department for consideration. There are a number of such reports contained in the document book Ex. No. 2, which were made by the defendant Thompson, who was an employee of the defendant Crothers, and which appear to have gone to the defendant Caterpillar and the plaintiff, with a copy, I take it, being retained by Corthers. They were admitted without objection and some have been referred to by Caterpillar thus far in the trial.

Such reports are, in one way, hearsay, but in view of the use that has been made of them, the world-wide organization of this defendant, the reporters of the incidents, have become the agents of Caterpillar to report. Because of the way in which they are originated, in my opinion, the rigours of the rule against hearsay evidence must give way to the practicalities and methods of large modern businesses and must be admitted.

[49]       However, I do not think that the investigative Report in this proceeding is comparable to an adjuster's report or employees' reports, as in LaFarge, supra. In those cases, the reports were routine when such incidents occurred, and seemed to be a practice of the defendants. So a parallel could be drawn with reports produced in the ordinary course of business by the defendants and the reports could be admissible as statements of a party against interest.

[50]       However, even if the evidence does not fall within one of the classes of exclusion already laid down, an exception to the hearsay rule may be demonstrated if the evidence the admissibility of which is disputed meets certain tests for admission.

[51]       In R. v. Khan, [1990] 2 S.C.R. 531, the Supreme Court of Canada articulated some tests for the admissibility of hearsay evidence. The Court held that two criteria had to be satisfied if evidence was to be admitted: necessity and reliability. The Court stated:

This Court held that the records should be admitted, notwithstanding that on the traditional rules, they were inadmissible. The Court accepted (at p. 624) the proposition that "[t]he common law is moulded by the judges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds", particularly in the field of procedural law: per Lord Donovan, dissenting, in Myers v. Director of Public Prosecutions, [1965] A.C. 1001, at p. 1047. Hall J. at p. 624 quoted the following passage from the reasons in Myers of Lord Pearce, dissenting (at pp. 1040-41):

I find it impossible to accept that there is any "dangerous uncertainty" caused by obvious and sensible improvements in the means by which the court arrives at the truth. One is entitled to choose between the individual conflicting obiter dicta of two great judges and I prefer that of Jessel M.R. His dictum was as follows, 1 P.D. 154, 241:

"Now I take it the principle which underlies all these exceptions is the same. In the first place, the case must be one in which it is difficult to obtain other evidence, for no doubt the ground for admitting the exceptions was that very difficulty. In the next place the declarant must be disinterested; that is, disinterested in the sense that the declaration was not made in favour of his interest. And, thirdly, the declaration must be made before dispute or litigation, so that it was made without bias on account of the existence of a dispute or litigation which the declarant might be supposed to favour. Lastly, and this appears to me one of the strongest reasons for admitting it, the declarant must have had peculiar means of knowledge not possessed in ordinary cases." On that expression of principle he admitted the extension which has been acted on ever since in the Probate Division.

In the result, this Court concluded that the nurses' records should be admitted, noting however that the admission "should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so" and adding that "the nurses were present in court and available to be called as witnesses if the defendant had so wished" (p. 626).

Lord Pearce's four tests may be resumed in two general requirements: necessity and reliability. The child's statement to the mother in this case meets both these general requirements as well as the more specific tests. Necessity was present, other evidence of the event, as the trial judge found, being inadmissible. The situation was one where, to borrow Lord Pearce's phrase, it was difficult to obtain other evidence. The evidence also bore strong indicia of reliability. T. was disinterested, in the sense that her declaration was not made in favour of her interest. She made the declaration before any suggestion of litigation. And beyond doubt she possessed peculiar means of knowledge of the event of which she told her mother. Moreover, the evidence of a child of tender years on such matters may bear its own special stamp of reliability.

[52]       In the case at bar, therefore, it must be determined whether the Report fulfills the requirements of necessity and reliability.

[53]       In Ethier v. Canada (Commissioner of the RCMP), [1993] 2 F.C. 659 (C.A.), the Federal Court of Appeal considered the issue of admissibility of an investigative report. The Court stated:

The evidence here sought to be introduced consisted of materials which the appellant had obtained from the Public Service Commission, one of the respondents, following a request under the Access to Information Act [See Note 3 below].    It is not without significance that respondent's counsel had generally refused requests for production of such documents during the preliminaries leading up to the hearing in the Trial Division.    The documents are in two categories, file notes and memoranda relating to an investigation carried out by the Public Service Commission at appellant's request (Exhibit A), and contemporary official documents generated by the Commission or by the Royal Canadian Mounted Police (Exhibit B).    Both categories relate directly either to the decision to hold an open competition to fill for an indeterminate period the position then held by the appellant on a term basis, or to the competition itself.    Those two matters were, of course, the very subject of the section 18 proceedings in the Trial Division.

In our view, in the circumstances of this case, the documents in question meet the first criterion of reliability. We, of course, say nothing of the weight they should have at this stage, but on a prima facie basis we think that the manner in which they were generated is such as to "substantially negate the possibility that the declarant was untruthful or mistaken." [See Note 4 below]    These are the respondents' own documents created during an internal investigation into alleged improprieties in the appointment process.    To the extent that they are advanced by the appellant to support his case, it is almost inconceivable that the various declarants would have said anything that was untrue.    As to the possibility of mistake, while it is always present, we can see nothing in the circumstances which would lead us to believe that it is realistic in this case, at least in so far as the preliminary question of admissibility is concerned, to say that the declarants erred.

There can equally be no serious question as to the criterion of necessity in the circumstances.    Respondents, by their counsel, had blocked any normal means of access to the material.    Even once it was obtained through Access to Information Act proceedings it was hardly realistic to expect appellant's solicitor to approach the various declarants and seek affidavits from them, assuming that he could have done so without committing a serious breach of professional ethics. Their production, by means of the Supplementary Affidavit, was clearly the most practical and convenient way to bring them forward without putting in jeopardy any of the respondents' rights to reply or explain if they wished to do so.

[54]       In Harris v. Kuntz, [1993] B.C.J. No. 2075 (B.C.S.C.), the British Columbia Supreme Court considered the issue of admissibility of an investigative report on a physician's practices. The Court noted, at paragraph 8:

The plaintiff argues that these documents are of compelling relevance to the plaintiff's case and are necessary to rebut the defendant's case.    Counsel for the plaintiff contends that the admission of the documents into evidence is not for the purpose of proving that Dr. Kuntz was generally incompetent, but rather for the purpose of rebutting specific defenses raised by counsel for the defendant in his opening statement.    The defendant's opening statement does not, of course, constitute pleading.    The statement a [sic] of defense is essentially a bare denial of the essential claims of negligence, breach of contract, and battery.

[...]

The objection to the admission of the investigation report is founded on the ground that the report contains statements made by numerous and often unidentified individuals to one or more of the three physicians who conducted the review of Dr. Kuntz.    It is also argued that the report contains conclusions based on documents which are not attached to the report and which are therefore not available for inspection by counsel or this Court.

It is apparent from the list of those things which I am told the report contains, that the sources of information on which the investigating committee drew in forming its opinion included obvious sources of hearsay and double hearsay.    It is also clear that none of the authors of the report are compellable for cross-examination in this trial: s. 61, Medical Practitioners Act.

Counsel for the defendant argues that the reliability of the investigation report cannot be tested by cross-examination, thereby offending a fundamental characteristic of the common law trial system.

[...]

If one examines those reasons in the context of the criterion of reliability referred to by Chief Justice Lamer in R. v. Smith, one must be satisfied that the circumstances under which the statement was made are such as to "substantially negate that the declarant was untruthful or mistaken".    Here we have a report which consists of not just one, or even a few, statements, but a potentially huge number of statements.    It includes a review of the College file. Does that file include statements made by patients, surgeons, colleagues and others?    There is a review of 70 hospital charts.    Do those charts include nurses notes, intern and resident notes, admission reports, etc.?    Common sense suggests that they must.    In view of the potentially great number of statements which form the basis of the report, I cannot conclude that all of those numerous and sometimes unidentified declarants were truthful or not mistaken.    That is not to impugn the integrity of the investigating physicians.    Their task was to conduct an investigation of the skill and knowledge of Dr. Kuntz in accordance with the Medical Practioners Act.    But the mere fact that the investigation was conducted pursuant to statute and with ethical motives does not, in my view, constitute a "substitute factor to demonstrate sufficient reliability to make it safe to admit the evidence" (per Lamer, C.J., R. v. K.G.B., at p. 49).    The sheer numbers suggest opportunities for mistakes or errors to have been made, of the kind which the hearsay rule is intended to protect from.

[...]

It is plain from R. v. Smith that "necessity" refers to the necessity of hearsay evidence to prove a fact in issue.    Counsel for the plaintiff has not said what fact or facts in issue it is necessary to prove by this evidence.    It is evident from the voluminous expert medical evidence filed on behalf of both parties that there is scant shortage of evidence going to all of the matters in issue as disclosed by the pleadings.    I therefore conclude that "necessity" has not been made out.

[...]

Lastly, the plaintiff suggests that the documents are admissible because the defendant disclosed them in a supplementary list of documents in this action, and attached copies of the documents to an affidavit filed in the Supreme Court action referred to above: Kuntz v. College of Physicians and Surgeons. The plaintiff says the report is "almost notorious" and that to not permit the documents to be tendered into evidence would constitute an abuse of process because this Court would then be kept in ignorance of facts which the plaintiff contends are compellingly relevant.    I cannot accede to that proposition.    The publication of the report by attaching it as an exhibit to an affidavit in other proceedings does not make it admissible in these proceedings. Nor does it render the document a public document, for it does not meet the test laid down by the Privy Council in Ioannon v. Demetriou [1952] R.C.    84 which requires that the document be not only available for public inspection (which this document now would be through the Court file), but that it was brought into existence for that very purpose (which the investigation report was not suggested to be).

[55]       In the case at bar, I think there is no doubt that the report meets the reliability test. In this regard, I accept the conclusions of the Federal Court in Ethier, supra:

These are the respondents' own documents created during an internal investigation into alleged improprieties in the appointment process.    To the extent that they are advanced by the appellant to support his case, it is almost inconceivable that the various declarants would have said anything that was untrue.    As to the possibility of mistake, while it is always present, we can see nothing in the circumstances which would lead us to believe that it is realistic in this case, at least in so far as the preliminary question of admissibility is concerned, to say that the declarants erred.

[56]       However, I am not persuaded that the necessity test is satisfied.

[57]       In R. v. Hyde, [1994], S.J. No. 700, the Saskatchewan Court of Queen's Bench examined the necessity test and stated:

The companion criterion of "necessity" refers to the necessity of the hearsay evidence to prove a fact in issue. Thus, in Khan, the infant complainant was found by the trial judge not to be competent to testify herself. In this sense, hearsay evidence of her statements was necessary, in that what she said to her mother could not be adduced through her. It was her inability to testify that governed the situation.

The criterion of necessity, however, does not have the sense of "necessary to the prosecution's case". If this were the case, uncorroborated evidence which satisfied the criterion of reliability would be admissible if uncorroborated, but might no longer be "necessary" to the prosecution's case if corroborated by other independent evidence. Such an interpretation of the criterion would thus produce the illogical result that uncorroborated hearsay evidence would be admissible, but could become inadmissible if corroborated. This is not what was intended by this court's decision in Khan.

(14)          As indicated above, the criterion of necessity must be given a flexible definition, capable of encompassing diverse situations. What these situations will have in common is that the relevant direct evidence is not, for a variety of reasons, available. Necessity of this nature may arise in a number of situations. Wigmore, while not attempting an exhaustive enumeration, suggested at 1421 the following categories:

(1)           The person whose assertion is offered may now be dead, or out of the jurisdiction, or insane or otherwise unavailable for the purpose of testing [by cross-examination]. This is the commoner and more palpable reason...

(2)          The assertion may be such that we cannot expect, again or at this time, to get evidence of the same value from the same or other sources... The necessity is not so great; perhaps hardly a necessity, only an expediency or convenience, can be predicated. But the principle is the same.

[58]       The investigative Report could therefore be admitted if it is demonstrated that evidence of the same value could not be obtained from the same witnesses or other sources.

[59]       In the case at bar, I agree with the defendant's argument that the conclusions and recommendations of the Report constitute opinions that should be excluded under the rule of exclusion of opinions of lay witnesses.

[60]       In The Law of Evidence, D. Paciocco and L. Stuesser, discussing the opinion evidence rule, state at page 126:

It is sometimes said, as a general rule, that "opinion evidence" is not admissible. It is the neutral, impartial trier of fact who is to form conclusions about questions of fact, not the witness. The role of a witness is simply to recount the facts that she has observed so that the trier of fact can draw its own conclusions.

[...]

Since lay witnesses have no more expertise than the triers of fact, there is generally no point in having them provide opinions. Their views will be superfluous, adding nothing that the trier of fact cannot accomplish itself. In some cases, however, even the evidence of lay witnesses is presented in the form of opinions.

[61]       In The Law of Evidence in Canada, at page 523, the authors explain the reasons behind the exclusion of opinions of persons who are not declared experts:

The exclusion of such opinion evidence was primarily based upon the fear that it would otherwise result in a usurpation of the functions of the judge or jury and that such opinion was irrelevant.

[...]

Finally, Dickson J. in R. v. Graat all but did away with the illogical distinction between so-called fact and opinion.

[...]

Returning to broad principles, Dickson J. put the admissibility of such evidence on a rather simple basis:

The witness had an opportunity for personal observation. They were in a position to give the Court real help.

Couched in these terms, the modern opinion rule should pose few exclusionary difficulties. The real issue will be the assessment and weight to be given to such evidence after it is admitted. Thus, the law had moved away from the requirement of "necessity" whereby opinion evidence was received in the case of a lay witness only if he or she could not "owing to the nature of the matter adequately convey to the jury the data from which such inference is made"...

[...]

Courts now have greater freedom to receive lay witnesses' opinions; but as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences. It is always a matter of degree. As the testimony shades towards a legal conclusion, resistance to admissibility develops.

[Emphasis added]

[62]       A witness cannot state his opinion on a pure question of law. D. Paciocco and L. Stuesser state, in this regard, at page 130:

The rule is easy to state and to understand - evidence is to be about questions of fact, not law. Therefore, neither a lay witness nor an expert can testify that a driver was "negligent". "Negligence" is a legal concept with its own definition that is applied to the facts of a case as found. To express an opinion on the matter, the witness would not only have to know the facts but also understand the legal concept and apply it correctly, a task that is, of course, the job of the trier.

[63]       The Report's findings relate to the defendant's negligence and the trial judge is in a position to draw his own conclusions on that without resorting to the Report. The elements in this litigation can be proved in some way other than through the Report, and the plaintiff is not barred from presenting evidence in some other way that is acceptable under the rules for admissibility of evidence.

[64]       It is essential, in my opinion, to divide the Report in question among its different components.

[65]       First, the part that constitutes the testimony of the soldiers who were questioned during the investigation, which is the most voluminous part of the Report. The parties to this proceeding have already agreed that this part of the Report be accepted and tabled as evidence at trial, so I will not come back to this.

[66]       After hearing the oral evidence, the Committee of Inquiry reached certain conclusions and made some recommendations; pursuant to the analysis of the applicable case law and rules of law, I agree with the defendant and this part of the Report may not be accepted in evidence. The plaintiff will have plenty of time during the examinations and in its submissions to the court to convince the court that it can reach the same conclusions from the testimony that is heard and the transcript of the testimony that is taken in the other proceedings, which will be filed in this proceeding.

[67]       There are two other parts of this Report that cannot be treated in the same way: after hearing the witnesses, the military authorities reached certain conclusions and made certain recommendations, and the Report includes decisions that are both administrative and disciplinary.

[68]       These measures taken by the responsible officer, while they were taken in the weeks and months following the events that occurred between May 5 and 8, 1984, are completely contemporaneous with these events and are irremediably linked to them.

[69]       These administrative and disciplinary decisions are facts.

[70]       It cannot be denied that these decisions affect both the person who made them and the persons affected by these decisions, who could be summoned to testify during the trial.

[71]       However, sixteen years have elapsed since these events and it is not certain that the original documents dealing with the administrative measures or the direct consequences of the recommended disciplinary measures can be recovered, since many documents have been destroyed since that time.

[72]       There is nothing to prevent both parties from getting the people who are still able to do so to testify about these decisions, which may enable the parties to explain the context in which these decisions were made.

[73]       However, it is in the interests of justice that this part of the Report be admissible in evidence, and it will be up to the Court to assess its probative value, in light of the evidence as a whole that will be presented to it.

[74]       For all these reasons, the plaintiff's motion is allowed in part and a part of the Report appearing in Schedule O of the motion will be filed as evidence at the time of the trial, that is, the following pages:

-            P-1 (from paragraph 4.C);

-            P-2, P-3, P-4, P-5 (to paragraph 12 inclusive);

-            the page following page P-7, bearing the signatures and the date of June 8, 1984;

-            pages 3 to 13 inclusive;

-            pages 463, 464, 465, 466;

-            as to the part representing the transcript of the testimony, it will likewise be filed in accordance with the agreement reached among the parties to that effect.

[75]       The whole, costs to follow the event.

              "Pierre Blais"

                       J.

Vancouver, British Columbia

November 6, 2000

Certified true translation

Suzanne M. Gauthier, LL.L., Trad. a.

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET NO:                         T-2492-84       

STYLE:                                     COMMISSION DE LA SANTÉ ET DE LA

SÉCURITÉ DU TRAVAIL

v.

HER MAJESTY THE QUEEN

PLACE OF HEARING:            Québec, Quebec

DATE OF HEARING: September 29, 2000

REASONS FOR ORDER OF BLAIS J.

DATED:                                   November 6, 2000

APPEARANCES:

Michel Beaupré

Serge Kronstrom                                                           FOR THE PLAINTIFF

Michel Miller

René Leblanc                                                                FOR THE DEFENDANT

SOLICITORS OF RECORD:

Kronstrom, Desjardins

Québec, Quebec                                                           FOR THE PLAINTIFF

Morris Rosenberg

Deputy Attorney General of Canada                               FOR THE DEFENDANT