Wednesday, April 10, 2013

Documentary evidence in provincial offence matters

Documentary evidence poses a major challenge for the Courts.  This is especially so for Provincial Offences – often trials for these matters are conducted rather casually and evidentiary issues are glossed over.

Prior to admission all documents must be authenticated and established as relevant before admission. 

Authentication, that is proving the document is what it purports to be, seldom poses an issue.  A person who made or received the document can say it is, in fact, for example, a letter sent or received.  Similarly a document found among records can be authenticated as being a record by someone in control of the records who can testify as to where it was found.

Relevance is similarly seldom an issue – does the document relate to an issue in dispute?  If yes, then it is relevant.

Normally the problem with documents is hearsay. 

Commonly documents are adduced to prove the truth of their contents – say to show who was the owner of a motor vehicle or the like.  In such cases, beyond authentication and relevance some exception to the hearsay rule must be found.

In the rare cases where a document is produced to prove something other than its truth, say to prove only a state of mind, the document is admissible on authentication and relevance being shown. 

Assuming a document is adduced for a hearsay purpose, there must be some exception to the hearsay rule that applies and allows admission.  The principled approach can, in theory, apply to allow a necessary and reliable document to be admitted, however, to admit a document on that basis would require extensive testimony as to why no other evidence is available and why this document has circumstantial indicia of trustworthiness – so a traditional exception is more practical.  The relevant evidence act is the Ontario Evidence Act.

Generally copies of public or official records are admissible when produced under seal: ss. 29, 32 Ontario Evidence Act.

Copies of electronic records can be produced if otherwise admissible (this last point is key – the records must be somehow otherwise admissible) under s. 34.1 of the Ontario Evidence Act.  This section merely says there is a presumption of integrity if certain prerequisites are proven by affidavit or otherwise – it does not make copies of electronic records admissible simplicitur.

The most important exception for documents is business records.  Section 35 of the Ontario Evidence Act is the statutory provision allowing the admission of business records.  Seven days’ notice must be given and only records kept as part of the ordinary course of business are admissible.  Records generated during an investigation (police notes) are not made in the ordinary course of business and cannot fall within this exception: R. v. Fowler (1982), 2 C.C.C. (3d) 227.  Similarly, business records do not include opinions or recommendations – those must be proven otherwise: Augustine v. Inco, 2006 CanLii 21783.


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