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[1] If a party seeks to examine a witness with reference to a copy of a business record originally made by that witness, must the copy be produced in accordance with section 30 of the Canada Evidence Act?
[2] A voir dire was held on this question. I decided that copies of two relevant business records made by Mr Neil Mills are admissible at the instance of the prosecution without having to meet the conditions imposed by section 30 of the Canada Evidence Act. These are my reasons for that decision.
[3] At the relevant times Mr Mills was an officer of the Scotiabank. In this capacity he executed a loan agreement with the Accused. As the loan was made with the assistance of a programme of guarantees by the federal government, Mr Mills also executed a document for registration of the loan with the government.
[4] When Mr Mills was called to testify Me Lévesque sought to examine him with reference to photocopies of these two documents. Me Frigon objected that the copies could not be tendered unless they were produced in conformity with section 30 of the Canada Evidence Act, notably the requirement for timely notice.
[5] On the voir dire Mr Mills testified that he recognised the documents as copies of originals that he had prepared. He testified that the documents bore his handwriting and he recalled the transaction to which they relate. On this basis the prosecution sought to examine Mr Mills.
[6] Documents, like other objects, do not speak for themselves. For this reason the common law imposed strict conditions on the admissibility of documentary evidence. The admissibility of documents had to be proved. On the principle that a party should produce the best evidence, the common law required production of the original and would allow a copy only exceptionally if the original were not available. It required that the party tendering the document prove the source of the document and that it is actually what it is represented to be. It also disallowed any evidence that purported to vary or contradict the terms of the document. Some of these conditions applied where documents were offered as original evidence. At common law a witness was required to identify a document tendered by the proponent party and to establish its relevance, authenticity and other indicia of reliability. When a document was tendered as testimonial evidence by way of exception to the hearsay rule, further conditions had to be met before it could be admitted for the truth of its contents. Only then could a document be admitted to "speak," subject to considerations of weight.
[7] Some of the conditions relating to the admissibility were gradually relaxed at common law but, for the most part, the courts enforced the conditions of admissibility rigorously. The Supreme Court of Canada eventually accepted that the rigour of the common law regarding documentary evidence should be relaxed and that documents produced in the ordinary course of business should be admissible as an exception to the hearsay rule, subject to conditions. This development was justified in part by an acceptance that such records inherently bear a heightened degree of reliability. A parallel development concerning documents was acceptance that copies need not be regarded with the same measure of suspicion as the common law had traditionally expressed and enforced. The so-called Best Evidence Rule lost much of its force, though the law never abandoned its abiding concern for the reliability in relaxing the admissibility of secondary evidence.
[8] Parliament and provincial legislatures have occasionally enacted measures to facilitate the admission of documentary evidence. What are now sections 29 and 30 of the Canada Evidence Act are among some of the more recent amendments of this nature. Section 29 is a substantial amendment of a previous provision dealing with copies of entries in bank books or records. At the same time as this amendment was enactedsection 30 was also enacted. As a result, the various provisions of the Canada Evidence Act concerned with documentary evidence are complex. There are conflicts and contradictions among them and a notable degree of overlap.
[9] Section 30 was a direct response to Myers v. The Director of Public Prosecutions. A majority of the House of Lords refused to relax the common-law restrictions concerning the admissibility of business records and decided that an initiative of this nature should be undertaken, if at all, by Parliament. The British Parliament did just that and the Canadian Parliament did the same. It did so before the Supreme Court, in Aresv. Venner, followed the minority in Myers and decided to relax the common-law restrictions on the admission of business documents.
[10] Section 30 is not without difficulty but it is unnecessary here to explore this provision at length. It creates an exception to the requirement for the best evidence by allowing a copy of a document to be admitted in evidence.
[11] There is no doubt that the documents produced by the prosecution are copies of a business record within the meaning of section 30(12). But this characterisation does not necessarily mean that such copies are admissible only under the terms of that section. If they are admissible at common law or under any other statutory provision, section 30 need not apply.
[12] Section 30 plainly would not apply if the prosecution presented Mr Mills with the original documents. If he were able to authenticate them, that would be an end of the matter. He would be able to identify the documents and explain what they purport to be. He would be able to identify and attest at least to his own signature and handwriting upon the documents. He might also be able to identify the writing of any other person upon the documents. He would be able to testify whether the copies are correct and complete copies of the original documents.
[13] The narrow question is whether the issue is any different if the witness is presented with a copy of a document that he originally made. Framed in this way, the question is whether a copy is admissible in lieu of the original. It is a question about the best-evidence principle and not about more intricate questions concerning business records.
[14] It was once held that a copy could be admitted only if the trial judge was satisfied that the original existed and that it was lost, destroyed or otherwise unavailable to the party seeking to tender the copy. This rule has long since passed. A trial judge may admit a copy of a document if he or she is satisfied that the copy is as good as the original or if otherwise it is sufficiently reliable. The criteria applicable to determine whether a copy is sufficiently reliable will vary according to the nature and quality of the copy, the purpose for which it is tendered, and any extrinsic evidence adduced to support its reliability. In this case I am satisfied by Mr Mill's testimony that the two copies tendered by the prosecution are reliable to assist his testimony concerning the transactions to which they relate. I am also satisfied that section 30 of the Canada Evidence Actdoes not apply in this case and thus the prosecution was not required to give notice.
[15] Section 30 does not apply whenever a party seeks to tender a business record. It applies when a party seeks to take advantage of the expeditious and less cumbersome procedure for the production of such evidence that Parliament has provided in that section. Nothing in that provision supplants the common law or the application of any other statutory provision relating to the production of business records. This is expressly declared in section 30(11) of the Act.
[16] I would add two comments that are not strictly necessary to dispose of the question on this voir dire.
[17] The objection before the Court was based upon section 30 of the Canada Evidence Act, which is concerned broadly with business records. The scope of its application is confirmed by the definitions of "business" and "record" in section 30(12). Section 29 of the Act is concerned more specifically with copies of banking records. It is arguable that the two copies at issue here would be admissible under that provision if it is properly construed to include not only entries in ledgers but other documents prepared and recorded in the ordinary course of banking transactions. If the two copies produced by the prosecution in this case are properly within the scope of banking records contemplated by section 29, they would be admissible according to the terms of section 29(2) and without notice by the prosecution.
[18] Finally, as this voir dire has taken place within a preliminary inquiry, it is also arguable that the copies tendered by the prosecution may be admitted under section 540(7) of the Code. This is a new provision and its scope has yet to be mapped by judicial interpretation. Supposing that the two copies in question were not otherwise admissible at common law or under another statutory provision, the prosecution could seek to tender them with the aid of extrinsic evidence to establish their credibility or trustworthiness – their reliability. In a case such as this Mr Mills's testimony would serve adequately for this purpose.
[19] I repeat that the two copies produced in this case are admissible at common law in lieu of the originals because they have been satisfactorily proved and authenticated by the testimony of a witness who participated in writing and signing the originals.
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