R. v. Heyden (J.C.) and Vanderheyden (W.A.), [1999] O.T.C. 125 (GD)

• Judge: McIsaac, J.
• Court: Ontario Court of Justice General Division (Canada)
• Case Date: February 24, 1999
• Jurisdiction: Ontario
• Citations: [1999] O.T.C. 125 (GD)

R. v. Heyden (J.C.), [1999] O.T.C. 125 (GD)

MLB headnote and full text

Temp. Cite: [1999] O.T.C. TBEd. DE.152

Her Majesty The Queen v. Jack Cornelius Heyden and William Anthony Vanderheyden

Indexed As: R. v. Heyden (J.C.) and Vanderheyden (W.A.)

Ontario Court of Justice

General Division

Barrie

McIsaac, J.

February 24, 1999.

Summary:

Heyden and Vanderheyden were charged with first degree murder. Heyden's estranged wife was an important Crown witness. Heyden and his wife were involved in litigation as a result of their separation. The accused claimed that the wife had a significant motive to falsely implicate Heyden because of the matrimonial litigation. The wife's solicitor in the matrimonial litigation testified. The accused applied for production of the wife's solicitor's files related to the matrimonial breakdown. The wife opposed the production, claiming solicitor-client privilege.

The Ontario Court (General Division), in a decision reported 94 O.T.C. 31, allowed the application subject to judicial vetting. Heyden's counsel proposed to cross-examine the wife's counsel about the contents of certain notes that were prepared by his staff in relation to their contacts and conversations with the wife. Crown counsel objected to the details of the conversations being put before the jury.

The Ontario Court (General Division) held that the cross-examination was permissible under the business records exception to the hearsay rule.

Evidence - Topic 1582

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of business - See paragraphs 1 to 14.

Evidence - Topic 1602.1

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Law office records - See paragraphs 1 to 14.

Cases Noticed:

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 3].

R. v. Morris, [1983] 2 S.C.R. 190; 48 N.R. 341; 7 C.C.C.(3d) 97, refd to. [para. 5].

R. v. Mohan, [1994] 2 S.C.R. 9; 166 N.R. 245; 71 O.A.C. 241; 89 C.C.C.(3d) 402, refd to. [para. 5].

R. v. Evans (C.D.), [1993] 3 S.C.R. 653; 158 N.R. 278; 145 A.R. 81; 55 W.A.C. 81; 85 C.C.C.(3d) 97, refd to. [para. 6].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 9].

Setak Computer Services Corp. v. Burroughs Business Machines Ltd. (1977), 15 O.R.(2d) 750 (H.C.), refd to. [para. 9].

R. v. Penno (1977), 35 C.C.C.(2d) 266 (B.C.C.A.), refd to. [para. 9].

R. v. Sunila and Soleyman (No. 2) (1986), 73 N.S.R.(2d) 308; 176 A.P.R. 308; 26 C.C.C.(3d) 331 (T.D.), refd to. [para. 10].

R. v. Monkhouse (1987), 83 A.R. 62 (C.A.), refd to. [para. 9].

Authors and Works Noticed:

Ewart, J.D., Documentary Evidence in Canada (1984), p. 5 [para. 10].

Counsel:

M. Martin and L. McConnery, for the Crown;

P. Connelly, for the accused, Heyden;

T. Breen and J. Bliss, for the accused, Vanderheyden.

This matter was heard by McIsaac, J., of the Ontario Court (General Division), who delivered the following decision on February 24, 1999.

Please note: The following judgment has not been edited.