Canadian Criminal Evidence/Documentary evidence
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[edit] Introduction
Documentary evidence is any kind of evidence on which relevant information is printed upon. [1]This includes all court documents as well.
A business record includes "the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced".[2]
Documentary evidence has a variety of definitions in different jurisdictions.[3]
Documentary evidence can include modern information storage, including: [4]
There are generally three categories of documents:
- public documents
- judicial documents
- private documents
[edit] Admissibility of Documents
[edit] Proof not required
Certain documents may be admitted under statute without proof.[7] Where there the document is not admissible under statute or as a public document, then it must be proven.
Under s. 19 and 20 of the Canada Evidence Act, Acts of Parliament and provincial legislation is admissible without proof.[8]
Any document can be admitted without proof where the opposing party consents.[9]
[edit] Proof required
Unless provided by statute, all private documents must be proven to be admissible.
It is usually necessary to prove execution before proof of contents.[10]
Execution may be proven by inference.[11]
[edit] Admissibility of Business Records
A business record is a form of an unsworn statement.
Business records to be admitted in evidence
30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.– [6]
Unlike the common law, there is no requirement that the maker is under a duty to make it.[12]
[edit] Serving Notice of Intention to Admit Documents
Notice is usually required for submitting most forms of documentary evidence.
[edit] Timing of service
In proving the existence of a public document such as a probation order, driving prohibition order, an original certified copy of the order may be admitted at trial as an exhibit without notice at the common law.[13] This has been considered available under the hearsay exception for public documents and judicial proceedings.[14] However, it has been said that the court still retains the discretion to exclude these documents where the defence is prejudiced by the lack of notice.[15]
[edit] Business Records
Business records are addressed under s. 30(7) of the Canada Evidence Act [7]:
s. 30(7)
- Notice of intention to produce record or affidavit
- (7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party.
[edit] Other Documents and Records
Documents and records are addressed under s. 28 of the Canada Evidence Act:
s. 28(1)
- Notice of production of book or document
- 28. (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23, 24, 25, 26 or 27, on any trial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.
</ref> there must be at least 7 days notice.
- Not less than 7 days
- (2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.
[edit] Failure to attend
145.
...
Proof of certain facts by certificate
(9) In any proceedings under subsection (2), (4) or (5), a certificate of the clerk of the court or a judge of the court before which the accused is alleged to have failed to attend or of the person in charge of the place at which it is alleged the accused failed to attend for the purposes of the Identification of Criminals Act stating that,
- (a) in the case of proceedings under subsection (2), the accused gave or entered into an undertaking or recognizance before a justice or judge and failed to attend court in accordance therewith or, having attended court, failed to attend court thereafter as required by the court, justice or judge or to surrender in accordance with an order of the court, justice or judge, as the case may be,
- (b) in the case of proceedings under subsection (4), a summons was issued to and served on the accused and the accused failed to attend court in accordance therewith or failed to appear at the time and place stated therein for the purposes of the Identification of Criminals Act, as the case may be, and
- (c) in the case of proceedings under subsection (5), the accused was named in an appearance notice, a promise to appear or a recognizance entered into before an officer in charge or another peace officer, that was confirmed by a justice under section 508, and the accused failed to appear at the time and place stated therein for the purposes of the Identification of Criminals Act, failed to attend court in accordance therewith or, having attended court, failed to attend court thereafter as required by the court, justice or judge, as the case may be,
is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.
– http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html#sec145]
[edit] Party to serve
Service is usually served upon counsel for the party. [16] However, service on an assistant or secretary is also permitted.[17] Service on relatives of the accused is not always sufficient.[18] Service by fax machine to the counsel's address is satisfactory.[19]
Service must be proven by oral evidence and not simply affidavit.[20]
Notice of certificates of analysis of drugs seized must be made to be admissible. Simply providing disclosure does not constitute notice. [21]
[edit] Proof of service
It is not always necessary for a police witness recall the specifics of affecting service of a document. If it is a standard procedure that they can testify that they always follow, and there is no recollection of there being a failure ot follow the procedure, the judge may conclude that it was done properly.[22]
[edit] Best Evidence Rule
[edit] References
- ↑ R. v. Daye, [1908] 2 KB 333 at 340
- ↑ Canada Evidence Act s. 30(12) [1]
- ↑ Ontario Rules of Civil Procedure r.30.01(1)(a)
Nova Scotia Civil Procedure Rules - ↑ Sopkina, The Law of Evidence in Canada at ss.18.1
- ↑ R. v. Swartz (1977) 37 CCC 2d 409 at 410 (ONCA)
- ↑ R. v. Sanghi (1971) 3 NSR 2d 70 (NSCA)
Canada Evidence Act s.31 - ↑ eg. CEA s. 24, 25
- ↑ Canada Evidence Act s. 19, 20
- ↑ General Host Corp. v. Chemalloy Minerals [1972] 3 OR 142
See also s. 655 - ↑ R. v. Culpepper (1966) 90 ER 301
- ↑ R. v. Armstrong (1970) 2 NSR 2d 204
- ↑ R. v. Wilcox (2001) 152 CCC 3d 157 (NSCA)
- ↑ Lebreux [1993] N.W.T.J. No. 97
R. v. Tatomir, 1989 ABCA 233 [2] - admits driving prohibition order - ↑ R. v. P. (A.) 1996 CanLII 871 (ON CA), (1996), 109 C.C.C. (3d) 385 at 389-390
R. v. C. (W.B.), 2000 CanLII 5659 (ON CA), (2000), 142 C.C.C. (3d) 490 at 29-31
R. v. Schellenberg, 2011 MBQB 240 [3] - ↑ R. v. Williams, 2004 ONCJ 80 at 17-18
- ↑ R. v. Fowler, (1982), 2 C.C.C. (3d) 227 (N.S.C.A.)
R. v. Vollman, (1989), 52 C.C.C. (3d) 379 (Sask.C.A.) - ↑ R. v. Page (1989) 8 W.C.B. 339 - CA009333 (B.C.C.A.)
- ↑ R. v. Lewis (1972), 6 CCC 189 (Ont.CA)
R. v. Godon, (1984), 12 C.C.C. (3d) 446 - found sufficent - ↑ R. v. Dillon, 2005 CanLII 22212 (ON S.C.) [4]
- ↑ R. v. Veinot (1983), 3 CCC 113 (NSCA)
- ↑ R. v. Cardinal, 2010 NWTTC 16 [5]
- ↑ R v Lorenz, 2011 SKPC 164 at 21
