Lien vers la décision
Documentary Evidence
6. Where a party seeks to tender a document in evidence to prove the truth of its contents the hearsay rule is engaged. Written statements, made by persons who will not be testifying at trial, are inadmissible as hearsay if the written statements are offered to prove the truth of the assertions made therein. J. Sopinka, S.Lederman, A.Bryant The Law of Evidence in Canada Butterworths 1992 at p.156
7. At common law an exception to the hearsay rule is made for public documents and judicial documents. The principle of necessity which underlies all hearsay exceptions is satisfied by the inconvenience of having public officials summoned to court to testify viva voce in every case. The circumstances which make the documents trustworthy include the preparation of the document by a public official acting under a duty to do so, and the fact that the documents are available for public scrutiny. See: Wigmore on Evidence Chadbourn Revision, Little, Brown and CompanyVol.5 pages 617-621
8. To be admissible at common law, the judicial document in question must be either be the original record or en exemplification of that record under the seal of the court. R. v. C. (W.B.) (2000), 2000 CanLII 5659 (ON CA), 142 C.C.C. (3d) 490 (Ont.C.A.) at para.39
9. The Canada Evidence Act provides for the admissibility of evidence of judicial proceedings in s.23. Court documents such as probation orders and Informations are also “public documents” which may be admitted under s.24. R. v. P. (A.) (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385 (Ont.C.A.) Where documents are tendered under sections 23 or 24, section 28 of the CEA requires that not less than 7 days notice be given prior to trial.
May the Crown Directly Tender the Original Order?
10. The party seeking to tender a document has the burden of establishing its authenticity.
11. “At common law, judicial documents must be proved by the production of the original record or an exemplification … It must, of course, be remembered that authentication of the document would still be required.” (emphasis added) D. Ewart, M. Lomer, J. Casey, Documentary Evidence in Canada Carswell 1984 at p. 183
12. The Crown is in effect asking the court to take judicial notice that the documents are original court records. The Crown has not referred to any authority to support the submission that judicial notice extends to court documents. The CEA directs that judicial notice shall be taken of Acts of the Imperial Parliament (s.17) and Acts of Parliament (s.18). There is no provision in the CEA that extends judicial notice to court documents, nor does the common law appear to refer to the admissibility of judicial documents on that basis. See: Documentary Evidence in Canada Supra. Chapter 6.
Are the Certified Copies Admissible Without Notice at Common Law?
13. The photocopies of the Information and probation order have been certified by the clerk of the court under the seal of the court.
14. Where a judicial document is authenticated by way of certified copy or exemplification at common law no notice is required. Regina v. Tatomir (1989), 51 C.C.C. (3d) 321 (Alta.C.A.) leave refused 53 C.C.C. (3d) vii (S.C.C.) at p.327
Do the CEA Notice Provisions Apply?
15. “Section 36 of the CEA provides that Part I, which includes ss. 23 and 28, is in addition to, and not in derogation of, any powers to prove documents "existing at law". This includes the power to prove documents at common law … Thus, the CEA is not an exclusive code with respect to proof of documents.”R. v.C. (W.B.) (2000), 2000 CanLII 5659 (ON CA), 142 C.C.C. (3d) 490 (Ont.C.A.) at para. 29. (Affirmed 2001 SCC 17 (CanLII), 153 C.C.C. (3d) 575S.C.C.)
16. The existing common law exceptions therefore continue in force co-extensively with the procedural requirements of the Act. Should the procedural rules, and in particular the notice provisions of the CEA apply to documents admitted pursuant to the common law? Section 36 provides that the statutory provisions are in addition to the common law powers and do not derogate from those powers. Section 28 is part of a separate statutory structure and its terms only apply to documents made admissible by the Canada Evidence Act. See: Documentary Evidence in Canada, Supra. at p.8,
Residual Discretion
17. In criminal matters, the fact that the Crown can fail to comply with the simple notice requirements in s.28 of the CEA, and still apply at trial to admit the documents at common law may in some cases impact on the fairness of the trial.
18. Even where the Crown has established necessity and the reliability of the judicial documents, the trial court retains a discretion to exclude those hearsay documents if their admission would render the trial unfair. R. v.C. (W.B.) Supra. at paras. 45-48.
19. In this case the Information before the court alleges the fact that the accused was subject to a probation order and states the particular term allegedly breached. At trial, the probation officer identified the terms of the order that placed the accused under her supervision. She then stated the details of the alleged breach. She was cross-examined and her testimony completed without any objection that the substance of her evidence, including the fact of the probation order and its terms were not disclosed to the defence in the usual manner prior to trial. This is not a case where the defence submits that they have been taken by surprise by the production of the documents the Crown seeks to tender.
20. In these circumstances I am satisfied that the admission of the documents would not render the trial unfair.
Aucun commentaire:
Publier un commentaire