The Admissibility of Business Records in a Criminal Trial: s.30 Canada Evidence Act

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1 June 2013 Criminal Justice Section The Admissibility of Business Records in a Criminal Trial: s.30 Canada Evidence Act Grace Hession David 1 Two recent decisions from two different Courts of Appeal in Canada have recently revisited the principles associated with the admissibility of business documents in a criminal trial. Section 30 of the Canada Evidence Act 2, ( CEA ), continues to present hurdles for prosecutors and defence counsel alike because of a basic misconception of the reason for the section s existence. The purpose of this review will be to outline the principles behind this section of the CEA and to indicate how it has been interpreted in two recent cases, one in British Columbia, and the other in Ontario. 1. R. v. Jahanrakhshan British Columbia Court of Appeal, March 2013 In R. v. Jahanrakhshan 3, the Crown faced a special challenge in proving that the accused had purchased several luxury vehicles and an expensive speedboat with numerous VISA cards that bore his name but which drew on bank accounts that were traced to various individuals and their accounts around the world: Brazil, Luxembourg, Portugal, France, Cyprus and the United Kingdom. For each of these purchases, the accused was allowed to use more than one credit card and the international banks that sponsored the VISA card accounts suffered the loss. As an example, in purchasing the luxury speedboat at $126, 950 CDN, the accused used no less than 9 VISA cards 4. In proving the deprivation aspect of the fraud, the Crown presented into evidence photocopies of the credit card statements accompanied by sworn affidavits from representatives of the various banks around the world that testified to the loss, pursuant to s.30(1) of the CEA. These generic affidavits were supplied by means of a template from the investigating officer and Crown Attorney that the bank officials then filled out and affixed with a sworn oath. The affidavits indicated that the credit card number used in the transaction was assigned to an individual (not the accused) who was a client of that bank at the material time, that the bank suffered a financial loss as the result of the transaction and that the accused had never been issued a credit card by the bank or held an account with the bank. 1 Assistant Crown Attorney, Special Fraud Prosecutions and Organized Crime, Toronto. The views expressed herein are personal and are not meant to bind or represent those of the Ministry of the Attorney General of Ontario in any way. 2 Canada Evidence Act, R.S.C. 1985, Chap. C-5, as amended. 3 R. v. Jahanrakhshan, 2013 BCCA Which begs the question why the merchant would have facilitated such an obvious sketchy transaction in the first place, but that is beyond the scope of this paper.

2 2 At trial the accused argued that the weight that should be afforded the affidavits should be carefully scrutinized since s.30(9) of the CEA allows for the right of cross examination of the maker of the record or someone with knowledge of the record, in this case the record being the credit card statements. The argument was that since none of the bank officials were ever called to give viva voce evidence or to be cross examined, the loss on the part of the bank had not been proven. Justice Bowden of the Supreme Court of British Columbia had no problem relying upon the affidavit evidence and the business documents submitted by the Crown: [163] In my view, the affidavit evidence that the credit card account numbers used did not belong to the accused is clear and compelling. It is the type of evidence that is contemplated by the provisions of s.30 of the Canada Evidence Act and I see no reason for minimizing the weight of this evidence. It is also my view that there is ample evidence that the financial institutions, referred to in these counts, incurred the cost associated with the use of credit cards by the accused. Based on the evidence regarding how merchants are paid for transactions involving the use of a VISA card, it is clear that the payments are made by the bank that issued the credit card account. The merchants were paid for the property that was purchased and such payments could only have come from the banks. Justice Bowden then convicted Mr. Jahanrakhshan of 12 counts of fraud and one count of possessing of instruments for the purposes of forging a credit card. Before the matter could move to sentencing, he filed an immediate appeal of his convictions with the British Columbia Court of Appeal. The Purpose of the CEA: On appeal, the accused s argument with respect to the provisions of the CEA changed slightly. He now found fault with the bank affidavits because they had been compressed into one document and were not separated into two as required by the provisions of s.30(3)(a) and (b) of the CEA: BUSINESS RECORDS TO BE ADMITTED INTO 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. (2) Where a record made in the usual and ordinary course of business does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist. (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy s authenticity and that is

3 made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is: (a) an affidavit of each of those persons sworn before a commissioner or other person authorized to take affidavits; or (b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. 3 Dismissing this argument as an empty technicality, the British Columbia Court of Appeal noted that s.30 of the CEA is to be given a purposive reading. In so doing, the Court of Appeal felt that the trial judge was correct in relying on the inherent trustworthiness of the bank records and the exact format of the affidavits was not important as long as the information therein addressed the requirements of the Act. Justice Donald of the British Columbia Court of Appeal noted in paragraph [15] of his judgement that the purpose of the CEA is to provide accurate information to the Court: [14] The appellant argues that, properly construed, s.30(3) requires not only two affidavits, but two separate affiants as well. This, he says, would enhance the integrity of the process because two persons in the preparation of the material would more likely produce a genuine package. [15] I find this to be a wholly unpersuasive argument. The language chosen by Parliament may have assumed that the person who explains why producing the original is not practical would delegate the task of making the copy to another person, in which case the person who makes the copy must attest to its authenticity; thus, two affidavits are produced: see R. v. Parker (1985), 16 C.C.C. (3d) 478, 7 O.A.C But where one person performs both tasks, the purpose of the Canada Evidence Act, which is to provide accurate information to the court, is fulfilled. The point taken by the appellant is an empty technicality. Guarantee of Trustworthiness and Accuracy: As far back as 1977, Justice Callaghan in R. v. Grimba and Wilder 5 made it clear that s.30 of the CEA is based on a similar foundation to what we know today as the principled exception to the hearsay rule, the inherent reliability of the document: [8] Section 30 was placed into the Canada Evidence Act in It would appear that the rationale behind that section for admitting a form of hearsay evidence is the inherent circumstantial guarantee of accuracy which one would find in a business context from records which are relied upon in the day to day affairs of individual businesses, and which are subject to frequent testing and cross-checking. Records thus systematically stored, 5 R. v. Grimba and Wilder (1977), 38 C.C.C. (2d) 469 (Ont. Co. Ct.)

4 produced and regularly relied upon should, it would appear under s.30, not be barred from this Court s consideration simply because they contain hearsay or double hearsay. However, before they qualify under that section, the provisions of s.30 must be strictly complied with; see R. v. Mudie (1974), 20 C.C.C. (2d) 262 at p [9] A record under s.30 includes the whole or any part of any paper, card, or other thing on which information is written, recorded, stored or reproduced. It would be my view that the cards on which fingerprints are reproduced would clearly qualify under the definition. A copy, for the purposes of s.30 would encompass Exhibits B and C as according to the evidence of Mr. Harper, they are prints from microfilm of original records which have been destroyed. Exhibit A itself is an original record with the Federal Bureau of Investigation. 4 In the Grimba case, the business documents in question were fingerprint identification records that the Crown was attempting to adduce through an expert FBI agent. Justice Callaghan indicated that the hearsay that was being objected to as the result of the fingerprint records was that the fingerprint records the FBI agent had brought from his organization were actually the fingerprints of the accused that had been processed in 1941 and stored in the FBI database. Because this particular FBI agent had not taken the fingerprints himself in 1941, and because the person who had originally taken the fingerprints had given them to the keeper of the FBI database in 1941, the FBI agent in 1977 would be testifying to double hearsay. Nonetheless, the fact that the prints were made in the usual and ordinary course of business and stored in a secure database guaranteed their reliability: [15] One argument which did cause me considerable concern, related to the correlation between s.30(1) and (9). It was argued that Mr. Harper was not qualified to testify because he was neither the maker of the documents nor had original knowledge of the contents of the documents. It goes without saying, Mr. Harper of course has no knowledge of the making of the documents, but in my view, it was intended any person in an official position such as he, with an agency which maintains a record of such documents in the ordinary course of business, would have the knowledge of the contents of those documents based on his experience in that business, which is required by s-s. (9). Accordingly, I am holding that he is competent to give evidence as to the contents of the documents, having regard to his experience and position with the Federal Bureau of Investigation. [16] At common law and under the current English legislation, which is similar to that before the Court although not exactly the same, as the record is admissible only if its maker is shown to have personal knowledge of the facts recorded. It would appear to me, s.30 has removed that requirement and by so doing contemplates the admission of a record containing such things as the double hearsay involved herein, when one refers to the back of the record which identifies the person whose fingerprints are recorded thereon. Of course, nowadays fingerprint evidence is introduced into court on a regular basis without question, but it is interesting to see how the provisions of the CEA made this possible.

5 5 Admissibility vs. Weight of the Evidence If the party that wishes to introduce the document can prove that the document was kept in the normal and ordinary course of business, it is prima facie admissible under the provisions of s.30 of the CEA. The next phase of the analysis then becomes a consideration of the weight that is to be given the piece of evidence. In 1997, the Saskatchewan Court of Appeal decided that a trial judge had been somewhat hasty in declaring inadmissible tables of crop yield averages produced by the statistics branch of the Saskatchewan Department of Agriculture and Food. The tables were required by the Crown as part of its case in proving that a farmer had defrauded the Canadian Wheat Board in his yearly declarations of crop. The trial judge objected to the admission of the tables into evidence because they contained double hearsay some of the data used to prepare the tables for the Saskatchewan provincial government had been collected by Statistics Canada. In R. v. Martin 6 the Saskatchewan Court of Appeal seized the opportunity and pronounced upon the changes effected the common law by the combined effects of Ares v. Venner 7 and s.30 of the CEA on the admissibility of documents in a trial. The common law business document exception to the hearsay rule mandated that, to be admissible, the document must meet the following six requirements 8 : (1) It must be an original entry; (2) It must have been made contemporaneously with the event recorded; (3) It must have been made in the routine of business; (4) It must have been made by a person now deceased; (5) That person must have been under a specific duty to make the recording; and (6) That person must have had no motive to misrepresent the transaction recorded. In Ares v. Venner, the Supreme Court of Canada ruled that nurses notes proved to have been made contemporaneously and by a person under a duty to make them should be received into evidence as prima facie proof of the facts stated therein without the party who made the notes having to testify. Further, the provisions of s.30 of the CEA, which came into force on February 13, 1969, made it clear that a court may consider the circumstances in which the information was recorded to determine whether any provision of s.30 applies such as the provisions of s.30(1) which allows the reception of double hearsay, if the note is recorded in the normal and ordinary course of business and if oral evidence would be relevant and admissible. This drastic change to the law involved a winnowing down of the requirements from six to two. However, counsel should be very well advised of the provisions of s.30(6) which some say is the predominant test of s.30 of the CEA 9. Subsection 30(6) gives a Court great discretion in its review and reception of any record that is submitted as evidence: BUSINESS RECORDS TO BE ADMITTED INTO EVIDENCE 6 R. v. Martin, [1997] S.J. No. 172 (Sask. C.A.) 7 Ares v. Venner, [1970] S.C.R For a detailed discussion of this issue see: J. Douglas Ewart, Documentary Evidence in Canada (Toronto: Carswell, 1984). For a recent discussion of the admissibility of electronic records in Canada see: Chasse, K. Electronic Records as Documentary Evidence Canadian Journal of Law and Technology, Volume 6, No. 3, November 27, 2007, pp Ibid, Chasse, Electronic Records as Documentary Evidence at p Professor Chasse notes that s.30(6) is not only an exclusionary rule but also superior to the admissibility test in subsection 30(1).

6 30(6) For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record. 6 The Martin case made it fundamentally clear that once the party producing the document can show two things: a) that the record was kept in the normal and ordinary course of business and, b) that oral evidence in respect of the matter is admissible in the legal proceeding, then the document is admissible. Following upon this, the Court of Appeal agreed that the tables of the crop yield averages should have been admissible in the Martin case. As a prophecy of things to come, Jackson J.A. noted the basis for the court s decision: [48] The opening words of s.30(6) appear to permit a consideration of weight to be made when the court considers admissibility. But if this means a court must reject a record because it contains double hearsay, it places documents prepared in the ordinary course of business in a fundamentally different category than documents admitted pursuant to the common law business duty exception. As indicated in Ares, weight is an issue to be addressed after the document is accepted as evidence. The circumstances in which the information was gathered or the record produced, or the lack of such evidence, may affect the weight to be given to it by the trier of fact, but it does not affect its admissibility. [49] As a general rule, documents made in the ordinary course of business are admitted to avoid the cost and inconvenience of calling the record keeper and the maker. As a matter of necessity the document is admitted. Proof that a document is made in the normal and ordinary course of business prima facie fulfils the qualification that in order for hearsay to be admitted it must be trustworthy. 2. R. v. Zhu Shi Li Ontario Court of Appeal, February 2013 In R. v. Zhu Shi Li 10 Justice Watt, writing for a unanimous panel of the Ontario Court of Appeal, upheld findings of guilt and the conviction of Mr. Li for production of marijuana, as well as conspiracy to produce and possess marijuana for the purpose of trafficking. Central to the proof of Li s identification and involvement in the conspiracy was viva voce evidence of a police officer who had reviewed records maintained by the Ministry of Transportation. The records themselves were never admitted into evidence in the blended voire dire/trial. This did not prove fatal to the conviction on appeal since the Ontario Court of Appeal noted that the hearsay rule was not triggered through the use of the evidence, but even if it was the evidence could have been admitted pursuant to the principled exception to the hearsay rule. 10 R. v. Zhu Shi Li, 2013 ONCA 81

7 7 The essence of the officer s evidence was that in August of 2005 and during the execution of a general warrant on a rural property that later turned out to be a grow operation, the officer had seen a truck parked on the property. He noted down the license plate of that truck and then checked the Ministry of Transportation ( MOT ) database and learned that a person named Zhu Shi Li was the owner of the truck. On the same database, the officer was able to view Li s driver s license and photo. The officer never printed out a hard copy of his MOT database record search results. One week later, when the same officer was conducting surveillance at the same rural property, he saw the truck again leave the property with Mr. Li driving and the co-accused and owner of the property, as the passenger in Li s truck. The officer followed the truck to Richmond Hill, Ontario where he saw Mr. Li and the co-accused attend at the co-accused house. He watched them load several items associated with marijuana grow operations into the truck. The officer s viva voce evidence was accepted at trial and a conviction entered. Interestingly enough, the officer did not produce a copy of the truck ownership record from the MOT database. Nor did he produce a copy of the driver s license and photograph. The Crown did not attempt to produce these documents under the common law rules or pursuant to the CEA. The primary ground of appeal was that Mr. Li s conviction was based on inadmissible hearsay. It was also argued on appeal that no statutory notice had been given at trial pursuant to the provisions of s.30(7) of the CEA such that the reference to the record search was inadmissible. Similarly, on appeal it was argued that the evidence with respect to the MOT record search did not comply with the provisions of the common law business records exception. Justice Watt would not give effect to this ground of appeal. First of all, the photograph that the officer viewed as the result of his MOT database search was not properly described as a statement and as such, it could not be tendered into evidence to prove the truth of its contents. The viewing of the photograph was properly construed in evidentiary terms as a refreshing of the officer s memory. He viewed the photograph once throughout the course of the MOT record search and he then was entitled to compare the photograph with the appearance of the person who drove the truck from the grow operation to the co-accused s residence. This was an entirely permissible investigatory act and was not subject to the provisions of the CEA in any way. Secondly, the evidence with respect to the ownership of the truck or the driver s license was not tendered by the Crown as part of its case in chief. Neither was the evidence offered to prove the truth of its contents as an essential element of the Crown s case. The Crown was seen to have proved its case by means of circumstantial evidence. The link of evidence that lead from the identification of the accused to his participation in the conspiracy was not focused solely on the records that were viewed by the officer from the MOT record search. Conclusion: Necessity and Reliability Going Forward Justice Watt ruled that even if the hearsay rule was properly invoked in this case, it was open to the trier of fact to bypass the requirements of the CEA and the rigid requirements of the common law hearsay exception for business documents to rely simply upon the principled exception to the hearsay rule. Reliability was seen by Justice Watt to be entirely satisfied because of the exact and rigid method with which driving records come into existence. He noted that common sense would dictate that a trier of fact would be entitled to affix sufficient trust in the truth and accuracy of the contents of these records. Also, necessity is established in the importance of the search for the truth.

8 8 In a trial of complex issues, it is not always possible to meet the test of contemporaneous crossexamination for a business document, therefore it is up to a trier of fact to consider the admission of the evidence under the necessity aspect of the new rule. Moving forward, it is clear that the provisions of s.30 of the CEA may not be as relevant or even as strictly followed as in the past. The bottom line will be the nature of the hearsay for which the documents are offered and whether or not they are cloaked with adequate reliability to make them trustworthy. Finally, the actual role the evidence plays in relation to the proof of the merits of the case was a matter of consideration in the Li case and because the evidence was not crucial to the Crown s case in chief, the court was prepared to relax the strict requirements of the rule. All of these factors will be worth considering carefully when dealing with documentary evidence and the proof of the contents in the future.