Business Records

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Common law

Business documents are admissible under the common law where they meet the following requirements:[1]

  1. it is an original entry;
  2. it was made at the time of the event;
  3. it was made in the routine of business;
  4. it was made by a person who has personal knowledge of the thing recorded;
  5. who had a duty to make the record; and
  6. the maker had no motive to misrepresent

Stated in another way:[2]

Statements made by an unavailable Declarant under a duty to another person to do an act and record it in the ordinary practice of the defendant’s business or calling or admissible in evidence provided they were made contemporaneous with the facts stated and without motive or intent to misrepresent the facts. Each component must be satisfied.

The fundamental rationale behind this rule that permits records being tendered into evidence without calling the author is not to avoid the inconvenience of bringing in the witnesses or because of no reasonable alternative. Rather it is premised on the documents having been created "under circumstances which makes them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence." [3]

The reliability arises from the existence of a "business duty". By contrast a person who "provides information gratuitously" should be treated as less trustworthy.[4]

Evidence surrounding the making of the record goes to weight and not admissibility of the record.[5]

  1. R v Monkhouse 1987 ABCA 227 (CanLII), [1988] 1 W.W.R. 725 at para 23 to 25
    Ares v Venner, [1970] SCR 608, 1970 CanLII 5
    R v O'Neil, 2012 ABCA 162 (CanLII)
    R v Oster, 2013 ONCJ 38 (CanLII) at para 30
  2. R v Oster, 2013 ONCJ 38 (CanLII) at para 30
    citing Palter Cap Co v Great West Life [1936], and Conley v Conley, [1968] 2 OR 677, 1968 CanLII 236 (ON CA)
  3. R v Monkhouse, 1987 ABCA 227 (CanLII) at p. 350 to 351
  4. R v Clarke, 2016 ONSC 575 (CanLII)
  5. R v Zundel [1987], 1987 CanLII 121 (ON CA), 31 CCC 3d 97 (Ont.C.A.)

Statute

Section 30 of the CEA allows "business records"--that is records from organizations other than financial institutions--to be tendered as evidence for the truth of their contents without needing the author of the documents to give evidence.

Purpose of s. 30
The purpose of of section 30 is to provide a method of putting business records into evidence beyond what is permitted by the common law and principled hearsay exceptions.[1]

Effect of Satisfying s. 30
Section 30 creates a statutory exception to the hearsay rule against the admissibility of hearsay evidence similar but distinct to the common law business records exception.[2]

The admission of the records under s. 30 are "prima facie proof of the truth of their contents.[3]

The admission of these records do not preclude other evidence or inferences that raise a reasonable doubt about the reliability of the contents of the records.[4] The records are to be weighed by the trial judge in the same way as oral evidence from a witness.[5]

Affidavit of Proof
The admission of the record requires an affidavit setting out the requirements that make them business records and that there is timely notice to the defence of the record and affidavit no less than 7 days before their admission. [6]

Failure to Give Notice
If there is failure to provide notice, then the document can still be admissible at common law by having the affiant give viva voce evidence instead.

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.
Inference where information not in business 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.


CEA

Unlike the common law, there is no requirement that the maker is under a duty to make it.[7]

Business records are "considered inherently reliable where created in a context in which they are relied upon in the day-to-day affairs of the individual business”.[8]

The common law business records rule differs from the statutory business record rule as it does not contain an exception for records made in the course of an investigation.[9]

Records that are "made in the usually and ordinary course of business" is prima facie admissible for all purposes.[10]

Each province has parallel business records legislation that applies for non-criminal matters.[11]

  1. R v Handous, 2012 ABPC 49 (CanLII) at 16
  2. R v Smith, 2011 ABCA 136 (CanLII) at paras 14, 15
    R v Grimba (1977) 38 CCC 469(*no link) at p. 471 per Callaghan J. ("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")
    R v Campbell, 2017 ONCA 209 (CanLII) at paras 4 tot 8
  3. Smith at para 46
    Campbell at paras 6 to 7
  4. Smith at para 33
    Campbell at para 8
  5. Smith at para 35
    Campbell at para 8
  6. e.g. R v Meier, 2012 SKPC 41 (CanLII) at 62
  7. R v Wilcox, 2001 NSCA 45 (CanLII), (2001), 152 CCC 3d 157 (NSCA)
  8. R v Smith, at para 14
  9. R v Crate, 2012 ABCA 144 (CanLII)
  10. R v Smith, 2011 ABCA 136 (CanLII) leave denied [2011] SSC 314
    R v Vader, 2016 ABQB 287 (CanLII) at para 5
  11. Ontario: s. 35 and 55 of the Ontario Evidence Act, RSO, 1990 c. E23

Business Records Defined

Section 30(12) defines "business" and "records":

30.
...
(12)
...
“business” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government;
...
“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, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4).
...
R.S., 1985, c. C-5, s. 30; 1994, c. 44, s. 91.


CEA

A business record is a form of an unsworn statement.

The party seeking to admit the record must establish a "proper foundation" of evidence.[1]

There should be evidence on how the records are madde, who made the entries and whether they are in the normal course of business.[2]

Under s. 30(12), business records include "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".[3]

Under s.30(10), business records made "in the course of an investigation or inquiry" are not admissible as business documents.[4]

When considering whether a computer stored information is a business record, the court should have regards to several factors:[5]

  1. Sources of Data and Information: there should be an identifiable source of the record and the source should be reliable
  2. Contemporaneous Recording: the recordings should be made shortly after the events they record
  3. Routine Business Data: the creation should be part of a routine of recording
  4. Data Entry: there should be evidence of the process used to input the information
  5. Industry Standards: where there is a standard, compliance with the standard should be shown
  6. Business Reliance: there should be some demonstrated reliance on the records
  7. System Continuity: there should be some evidence from the records keeper or system manager explaining the integrity of the system, including protections against tampering or errors

There is some suggestion that the method of printing out the document should be presented.[6]

Section 30(10) clarifies that certain documents are not to be included as business documents. That includes:

  • records made in the course of an investigation or inquiry,
  • a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,
  • a record in respect of the production of which any privilege exists and is claimed, or
  • a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;
  • any record the production of which would be contrary to public policy; or
  • any transcript or recording of evidence taken in the course of another legal proceeding.

Form of Record
Business records can also be admitted in the form of electronic print-outs.[7]

  1. R v Rowbotham (No. 4), [1997] OJ No 1686(*no link) at paras 55, 56
  2. R v Beauchamp, 2009 CanLII 9477 (ON SC), at para 11
  3. Canada Evidence Act s. 30(12)
  4. See R v Sunila, (1986) 26 CCC (3d) 331(NSTD)(*no link)
  5. Davis, Hutchinson, "Computer Crime in Canada" (Carswell) at p.205 citing K.Chasse "Business Documents: Admissibility of Computer-Produced Records" [1991] Crown's Newsletter 27 at 36
  6. R v Rowbotham (1977) 33 CCC (2d) 411 (Ont.)(*no link)
  7. R v Bell and Bruce (1982) 35 OR (2d) 164, OJ 3116 (ONCA)
    Tecoglas Inc v Domglas Inc (1985) 51 OR (2d) 196, OJ 1228 (HCJ)
    See also S. 31.1 to 31.8 of the Canada Evidence Act, Electronic Documents

Records Made in Usual and Ordinary Course of Business

The documents must be "made in the usual court of business".[1]

Proof that a record is "made in the ordinary course of business prima facie fulfils the qualification that in order for hearsay to be admitted it must be trustworthy.[2]

Examples of records that have been found to be made in "usual and ordinary course of business":

  • inventory sheets made by employees[3]
  • hospital records[4]
  1. R v Zundel, [1986] OJ No. 52(*no link) - documents not proven as made in ordinary course of business, not admitted.
    Smith at para 20 ("...in order to be admissible, a business record must have been made in the usual and ordinary course of business where oral evidence in respect of that matter would be admissible in a legal proceeding...")
  2. R v Martin, (1997), 1997 CanLII 9717 (SK CA), 8 C.R. (5th) 24 at p. 48 to 50
  3. R v Penno (1977) 35 CCC (2d) 266 (B.C.)(*no link)
  4. R v L.(C.) (1999), 1999 CanLII 1491 (ON CA)

Producing Copies

Section 30(12) defines copies:

“copy”, in relation to any record, includes a print, whether enlarged or not, from a photographic film of the record, and “photographic film” includes a photographic plate, microphotographic film or photostatic negative;


30.
...
Copy of records
(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 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.


CEA

The requirements found in s. 30(3) can be satisfied by a single affidavit. There is no requirement that there be "two documents".[1]

  1. R v Jahanrakhshan, 2013 BCCA 128 (CanLII) at para 7, 12 to 15

Records Produced during the Course of an Inquiry or Investigation

Records produced during the course of the investigation include police notes and reports and any other documents that police create.

As stated in reference to s.30 (10), there is an exception to the rule of admissibility of such documents as business records. These types of documents cannot be admissible under s.30. This does not mean that they are not admissible under the common law.[1]

Section 30(10) states:

30.
...
Nothing in this section renders admissible in evidence in any legal proceeding :(a) such part of any record as is proved to be ::(i) a record made in the course of an investigation or inquiry, ...


CEA

  1. see R v Monkhouse 1987 ABCA 227 (CanLII), (1987), 83 AR 62 at para 15 per Laycraft CJA regarding summary of payroll records ("In my view the evidence tendered was admissible under the common law rule and it is not necessary to consider whether it also met the tests of Section 30.")
    R v Bloomfield (1973), 6 NBR (2d) 5 (CA)(*no link)
    R v Crate, 2012 ABCA 144 (CanLII), re photos produced during booking admitted under common law business records c.f. R v Schertzer 2008 CanLII 1836 (ON SC), (2008), 232 CCC (3d) 218 (Ont SC) at para 9

Authentication by Affidavit

Affidavit evidence can be used to establish:[1]

  • The record was made in the "usual and ordinary course of business,*
  • The authenticity of the copy of the record; and
  • That it is not reasonably practicable to produce the original

30.
...
Not necessary to prove signature and official character
(8) Where evidence is offered by affidavit under this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.


CEA

The affidavit be by the individual who made the copies.[2]

  1. R v Parker (1984) 16 CCC (3d) 478 (O.C.A.)(*no link)
  2. Parker, ibid.

Explanation of Records

30.
...
Where record kept in form requiring explanation
(4) Where production of any record or of a copy of any record described in subsection (1) or (2) would not convey to the court the information contained in the record by reason of its having been kept in a form that requires explanation, a transcript of the explanation of the record or copy prepared by a person qualified to make the explanation is admissible in evidence under this section in the same manner as if it were the original of the record if it is accompanied by a document that sets out the person’s qualifications to make the explanation, attests to the accuracy of the explanation, and is

(a) an affidavit of that person 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.



CEA

The court may also draw inferences from the records themselves as well as the explanation found in the affidavit.[1]

  1. see s. 30(6) and Jahanrakhshan, 2013 BCCA 128 (CanLII), at paras 25 to 31

Notice

Notice requirements for business records are addressed under s. 30(7) of the Canada Evidence Act:

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.


CEA

Essentially, notice of intention to admit the documents as well as a copy of the document must be served on the other parties within seven days.

The purpose of the notice provision is to "alert the accused to the fact that the prosecution intends to produce a copy of the document at trial"[1] It is intended to "prevent surprise" and "ensure that the accused is able to make full answer and defence".[2]

Notice can be either formal or informal, even oral notice can be sufficient.[3]

The court has discretion to exempt a party from this rule. For example, in R v Mahoney 1986 ABCA 195 (CanLII), the accused refused to acknowledge his record at the sentencing hearing. A written record was submitted and an officer testified to its reliability. The judge admitted the record but it was overturned on appeal.

Exemption should only be given where it will not prejudice the accused.[4]

In R v Kennedy, 2008 NSPC 73 (CanLII), the judge refused to allow a printout from a computer screen with only one day notice.

Factors to be considered for exempting the notice provisions include:[5]

  1. The amount of notice given,
  2. Amount of time prosecution had access to the notice,
  3. Volume of evidence,
  4. Reasonableness of any explanation for the delay,
  5. Any prejudice created by the lack of notice.

The introduction to business records as evidence that a preliminary inquiry satisfies the requirements under section 30 (7) to give notice of intention to produce the documents at trial and also satisfy the requirement to produce the documents for inspection. [6]

See also: R v Bath, 2010 BCSC 1137 (CanLII); R v Bellingham, 2002 ABPC 41 (CanLII)

  1. R v Cordes, 1978 ALTASCAD 94 (CanLII), (1978) 40 CCC (2d) 442 (ABCA)
  2. R v Handous, 2012 ABPC 49 (CanLII) at 18
  3. R v Schiel, 2005 BCPC 581 (CanLII)
    R v Handous, 2012 ABPC 49 (CanLII) at para 19
  4. John Sopinka and Sidney N. Lederman, The Law of Evidence in Civil Cases Toronto: Butterworths (1974) at page 92 (the exemption can be given where the "record is simple and not detailed" and where it "feels that the opposite party will not be severely prejudiced as a result of such lack of notice.")
  5. R v Nguyen et al 2001 ABPC 52 (CanLII)
  6. R v Voykin, 1986 ABCA 154 (CanLII)

Case Digests

  • R v C.M., 2012 ABPC 139 (CanLII) - phone bill and text messages admissible for truth on short notice.
  • R v Oster, 2013 ONCJ 38 (CanLII) - IP address provided by a website administrator is admissible as business record under s. 30 CEA
  • R v Vader, 2016 ABQB 287 (CanLII) - text messages on cell phone admitted for truth of its contents.

See Also