Admissibility of Police Reports: Rizzuto v Hamilton Wentworth Catholic District School Board, 2023 ONSC 2101 – A Case Summary
Written By: Brandon Pedersen and Savannah Snyder, Summer Student
In Rizzuto v Hamilton Wentworth Catholic District School Board, 2023 ONSC 2011 (CanLii), the plaintiffs brought a mid-trial motion seeking admission of a typewritten police report (“Police Report”). The Police Report was marked as an exhibit on consent in examination of witnesses, but the defendant did not concede the document could be relied on for the truth of its contents. The portion of the Police Report under issue was written by an officer that was unexpectedly unavailable to testify.
The plaintiffs sought to have the Police Report admitted for the truth of its contents under the principled exception to hearsay and in the alternative, to have the Police Report admitted a business record under section 35 of the Evidence Act, RSO 1990 c. E.23.
2 Legal Principles and Analysis
2.1.1 Admissibility of Police Reports as a Business Record under section 35 of the Evidence Act
Bordin J. begins his analysis looking at section 35 of the Evidence Act and agreed with the principles listed in CCAS v I.B. et al., 2020 ONSC 5498 (CanLii) to consider the admissibility of police occurrence reports:
- Police records, including both criminal offence records and occurrence reports, are generally admissible as business records under section 35 of the Evidence Act, as a record of the act, transaction, occurrence or event;
- Police records, including both criminal offence records and occurrence reports are presumed to be reliable as they are:
- Typically made in usual and ordinary course of policing and/or the administration of criminal justice; and
- Typically recorded at the time of the event or within a reasonable time thereafter;
- The first-hand observations of police officers, as recorded within the police records and reports, are generally admissible;
- The comments of the parties, as recorded in police records may be admitted as statements against interest;
- Section 35 of the Evidence Act is not intended to permit the admission of otherwise inadmissible evidence;
- Third-party statements recorded within the police records are not admissible for the truth of their contents;
- Opinion evidence recorded within the police records or occurrence reports is not admissible;
- Information that is not relevant to the issues for determination is not admissible. The probative value of the evidence must outweigh any prejudice to its introduction; and
- The presumption of reliability of police records may be rebutted.
Bordin J. noted that the presumption of reliability of police records is for the purpose of determining the admissibility of the records. The ultimate determination of whether the police records are credible and reliable is left to the trier of fact to determine after considering all the evidence. It is the role of the court, not the police, to make the necessary findings of fact and to determine what happened on the alleged date.
In this case, the Police Report was held to be admissible as a business record but subject to what the officer personally observed or communicated and understood likely transpired based on the interviews the officer conducted.
Bordin J. held Police Reports are not admissible for the truth of any non-party hearsay statements, any opinions proffered by the officer or others, and the truth of any impressions or histories proffered by the officer or others. Bordin J. further stated that to the extent that the source of any statement is not identified in the Police Report or cannot be reasonably inferred from the report with some certainty, the statement is not admissible for the truth of its contents.
This reiterates that it is not the role of the police to make findings of fact and instead the court preserves the role to make findings of fact regarding negligent conduct.
2.1.2 Necessity and Reliability Exception to the Principled Approach to Hearsay
Although Bordin J. ruled on the admissibility of the police report under section 35 of the Evidence Act, His Honour canvassed the admissibility of the police report under the principled approach analysis.
The first branch of the principled approach (“Necessity”) was established as the officer was unable to testify to the extent that the plaintiffs sought to rely on the unidentified hearsay evidence of the third parties. However, Bordin J. had significant concerns regarding the second branch (“Reliability”) given the lack of detail of the source of the Officer’s information making it “virtually impossible to test the truth and accuracy of any statements”.
Here, there were no adequate substitutes for testing the truth and accuracy of the evidence in the Police Report, even though the Police Report was a product of an independent investigation in which no criminal charges could be laid, and the defendants agreed to the investigation. And, even if cross-examination was available, it would add little, if anything, to the process. Bordin J. held that any hearsay in the Police Report from or inferred from non-parties was not admissible for the truth of its contents.