9. Declarations in the Course of Duty

AuthorDavid M. Paciocco - Lee Stuesser
ProfessionJustice of the Ontario Court of Justice - Professor of Law, Bond University
Pages166-173

Page 166

The admissibility of declarations made in the course of duty is based on the presumed reliability with their making. First, most records are of a "mechanical" nature. They are prepared as a matter of routine, where there is little reason or motive to fabricate. Under the common law, where a declarant had a motive or an interest to misrepresent, the records would not be admitted into evidence. Second, businesses rely on these records, and it is the job of the maker to be accurate. Should the employee prove to be inaccurate, there exists the threat of dismissal. Third, the entries are prepared reasonably contemporaneously with the events or transactions recorded.

A declaration in the course of duty is different from an admission. Declarations that fall under this exception may be admitted by the party responsible for the record in order to support his or her case, unlike an admission that is tendered by the opposing party against the party who made the statement. This exception is also different from declarations against interest, in that courts have held that collateral or extraneous statements that accompany the declaration are not admissible.

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9. 1) At Common Law

Declarations, oral or written, are admissible for their truth where

(1) made reasonably contemporaneously; (2) in the ordinary course of duty; (3) by persons having personal knowledge of the matters;

(4) who are under a duty to make the record or report; and (5) there is no motive to misrepresent the matters recorded.

At common law, the maker of the statement had to be dead. This requirement made sense when the rule developed and most of the records related to small shop owners and tradesmen, but it makes no sense given our modern business community. This absurdity is well illustrated by the decision of the House of Lords in Myers v. D.P.P.190The case involved stolen cars, and the Crown sought to prove ownership of the cars through records kept by the manufacturer. The records, prepared by unknown employees, contained the cylinder block numbers of the engines installed in the cars. A majority of the House of Lords held that this evidence was hearsay and not admissible under any exception. The majority completely ignored the inherent reliability of the records and the total impracticality and futility in calling the employees responsible. The majority was not prepared to relax the common law requirements; it held that such a change was for Parliament, and not the courts.

The Supreme Court of Canada in Ares v. Venner made the change that the House of Lords in Myers was unwilling to make.191Ares v. Venner involved a case of medical malpractice. The plaintiff’s leg, which had been broken, had to be amputated below the knee, and the plaintiff blamed the attending physician. At issue was the admissibility of notes made by nurses. The notes contained statements such as: "Quiet evening, complained of discomfort, relieved by sedation, numbness in all toes, toes now swollen and blue." The Court chose to follow the dissenting Lords in Myers and changed the law. Hall J. concluded the judgment of the Court with the following statement of the law:

Hospital records, including nurses’ notes, made contemporaneously by someone having personal knowledge of the matters then being recorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein.192

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Now, in Ares v. Venner the nurses were in court and available for cross-examination, but this fact was not central to the Court’s decision.193

Ares v. Venner expanded the common law exception for declarations in the course of duty. The case is not confined to "nurses’ notes"; it has general application and is available in criminal cases as well as in civil cases.

The Alberta Court of Appeal dealt with this exception in R. v. Monk-house.194There a witness brought a document to court which he had produced by summarizing information contained in the company payroll records. He, of course, had no personal knowledge about the accuracy of that information. The document was nonetheless used to prove the earnings of an employee. The court held that the common law rule that the maker of the declaration must have personal knowledge of the matter recorded was satisfied if the information originally was recorded by a person or persons acting under a duty to compile the information. There is no need to identify the specific recorder; a document will be admissible so long as the court is satisfied that the maker was acting under a duty to record the information.195

9. 2) Business Records

Legislative reform followed in the wake of the decision in Myers v. D.P.P. An exception for "business records" was created in the Canada Evidence Act and in most of the provincial Evidence Acts.196These provisions eclipse, but do not replace, the common law.197The common law exception remains an important adjunct to the statutes. It applies to both "oral and written" statements, whereas the statutes are confined to "writings" or "records." It does not require that notice be given, whereas some of

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the statutes contain notice requirements.198Moreover, in Ares v. Venner the Court admitted much evidence that could be termed "opinion," whereas certain courts have held that, given the wording of the statute, only statements of "fact" may be admitted.199Unfortunately, although the various statutes have a similar purpose, there is no uniformity. For example, consider the admissibility of records made when the maker had a motive to fabricate. Under the common law, when such a motive is found, the records are inadmissible. The statutes deal with this issue in a variety of ways. Under the Canada Evidence Act, records are not admitted when made in the course of an investigation or inquiry, obtaining or giving legal advice, or in contemplation of a legal proceeding.200By contrast, the Manitoba and Ontario statutes provide that the circumstances of the making of any writing...

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