Business Records Under the Canada Evidence Act

From Criminal Law Notebook
This page was last substantively updated or reviewed May 2020. (Rev. # 95348)

General Principles

See also: Business Records and Business Records Under Common Law

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.

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 the 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.

[omitted (3), (4), (5), (6), (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. C-5, s. 30 1994, c. 44, s. 91.

– CEA (CanLII), (DOJ)

Note up: 30(1) and (2)

Purpose of s. 30

The purpose 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]

Both s. 29 and 30 are mean to "reduce the barriers to the admissibility of business and banking records."[2]

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”.[3]

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.[4]

The admission of the records under s. 30 are "prima facie proof of the truth of their contents."[5]

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.[6] The records are to be weighed by the trial judge in the same way as oral evidence from a witness.[7]

Double Hearsay

There is no issue of admissibility of s. 30 records that contain double-hearsay from witnesses who are not being called by the Crown.[8]

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. [9]

Failure to Give Notice

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

CEA vs Common Law

Unlike the common law, there is no requirement that the maker is under a duty to make it.[10]

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.[11]

Presumption of Certain Records

Records that are "made in the usually and ordinary course of business" is prima facie admissible for all purposes.[12]

Provincial Legislation

Each province has parallel business records legislation that applies for non-criminal matters.[13]

  1. ↑ R v Handous, 2012 ABPC 49 (CanLII), 537 AR 108, per Henderson J, at para 16
  2. ↑ R v MacMullin, 2013 ABQB 741 (CanLII), 579 AR 205, per Germain J, at para 115
  3. ↑ Smith, supra, at para 14
  4. ↑ R v Smith, 2011 ABCA 136 (CanLII), 273 CCC (3d) 525, per Bielby JA, at paras 14, 15
    R v Grimba, 1977 CanLII 1952 (ON SC), 38 CCC 469, per Callaghan J, at p. 471 ("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), OJ No 1371, per curiam, at paras 4 to 8
  5. ↑ Smith, supra, at paras 24, 46
    Campbell, supra, at paras 6 to 7
  6. ↑ Smith, supra, at para 33
    Campbell, supra, at para 8
  7. ↑ Smith, supra, at para 35
    Campbell, supra, at para 8
  8. ↑ R v Raaman, 2020 ONSC 1672 (CanLII), per Coroza J, at paras 16 to 17 ("The court concluded that where the record complies with the statutory prerequisites, it is sufficiently credible and trustworthy to be admissible and it matters little whether the record contains double or triple hearsay. What to make of “hearsay” in the record, whether it is double- or third-party hearsay, is left to weight and the discretion of the judge and not admissibility. ... What inferences the jury is prepared to draw about the reporting or non-reporting of income will be for them. This is a question of weight and not admissibility.")
    R v Lukacko, 2020 CanLII 41577 (ON CA), 164 CCC (3d) 550, per Rosenberg JA
    R v Martin, 1997 CanLII 9717 (SK CA), 8 CR (5th) 246, per Jackson JA, at para 48 (" 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")
  9. ↑ e.g. R v Meier, 2012 SKPC 41 (CanLII), 394 Sask R 204, per Morgan J, at para 62
  10. ↑ R v Wilcox, 2001 NSCA 45 (CanLII), 152 CCC (3d) 157, per Cromwell JA
  11. ↑ R v Crate, 2012 ABCA 144 (CanLII), 544 WAC 239, per curiam
  12. ↑ R v Smith, 2011 ABCA 136 (CanLII), 273 CCC (3d) 525, per Bielby JA leave denied [2011] SSC 314
    R v Vader, 2016 ABQB 287 (CanLII), per Thomas J, at para 5
  13. ↑ 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
[omitted (1), (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11)]

Definitions

(12) In this section,
...
 "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) [business records – copy of records] and (4) [business records – record in form requiring explanation], any copy or transcript admitted in evidence under this section pursuant to subsection (3) [business records – copy of records] or (4) [business records – record in form requiring explanation].
R.S., 1985, c. C-5, s. 30; 1994, c. 44, s. 91.
[annotation(s) added]

– CEA (CanLII), (DOJ)

Note up: 30(12)

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 made, 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 CanLII links) , at paras 55, 56
  2. ↑ R v Beauchamp, 2009 CanLII 9477 (ON SC), per R Smith J, at para 11
  3. ↑ Canada Evidence Act s. 30(12)
  4. ↑ See R v Sunila, 1986 CanLII 4619 (NS SC), 26 CCC (3d) 331(NSTD), per MacIntosh JA
  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 CanLII 1913 (ON CJ), 33 CCC (2d) 411 (Ont.), per Borins J
  7. ↑ R v McMullen, 1979 CanLII 1867 (ON CA), (1979) 25 OR (2d) 301, OJ 4300 (ONCA), per Morden JA
    R v Bell and Bruce, 1982 CanLII 1970 (ON CA), (1982) 35 OR (2d) 164, OJ 3116 (ONCA), per Weatherston JA
    Tecoglas Inc v Domglas Inc, 1985 CanLII 2043 (ON SC), 51 OR (2d) 196, OJ 1228 (HCJ), per Rosenberg J
    See also S. 31.1 to 31.8 of the Canada Evidence Act, Electronic Documents and Records

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 CanLII links) - documents not proven as made in ordinary course of business, not admitted.
    R v Smith, 2011 ABCA 136 (CanLII), 273 CCC (3d) 525, per Bielby JA, 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 CanLII 9717 (SK CA), 8 CR (5th) 24, per Jackson JA, at pp. 48 to 50
  3. ↑ R v Penno, 1977 CanLII 1626 (BC CA), 35 CCC (2d) 266 (B.C.), per McFarlane JA
  4. ↑ R v L(C), 1999 CanLII 1491 (ON CA), 138 CCC (3d) 356, per curiam

Producing Copies

Section 30(12) defines copies:

30
[omitted (1), (2), (3), (4), (5), (6), (7), (8), (9), (10) and (11)]

Definitions

(12) In this section,
...
 "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;
...
 R.S., 1985, c. C-5, s. 30 1994, c. 44, s. 91.

– CEA (CanLII), (DOJ)

Note up: 30(12)

30.
[omitted (1) and (2)]

Copy of records

(3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) [business records to be admitted in evidence] or (2) [inference where information not in business record], 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.

[omitted (4), (5), (6), (7), (8), (9), (10), (11) and (12)]
R.S., 1985, c. C-5, s. 30 1994, c. 44, s. 91.

– CEA (CanLII), (DOJ)

Note up: 30(3)

Section 30(3) of the CEA is a statutory exception to the best evidence rule.[1]

The requirements found in s. 30(3) can be satisfied by a single affidavit. There is no requirement that there be "two documents."[2]

Proof of authenticity of copies is an "essential requirement" to the admission of copies.[3]

A failure to include evidence (by affidavit or testimony) of the person who made the copies setting out the preconditions will render the records inadmissible.[4]

  1. ↑ R v Ho and Coral Sea, 2006 BCPC 112 (CanLII), 60 DTC 6230, per Watchuk J, at para 32
  2. ↑ R v Jahanrakhshan, 2013 BCCA 128 (CanLII), BCJ No 521, per Donald JA, at paras 7, 12 to 15
  3. ↑ Ho and Coral Sea, supra
  4. ↑ R v Parker, 1984 CanLII 3562 (ON CA), 16 CCC (3d) 478, per Brooke JA ("We are, however, of the opinion that the affidavits relied upon by the Crown in this case were not admissible in evidence. Nowhere was it established that the condition provided in s. 30(3) of Canada Evidence Act had been met that the persons who made the affidavits were persons who made the copies. ")
    Ho and Coral Sea, supra, at para 32 ("The affidavits attaching the document of Hebei Raoyang and Shanxi Provincial do not comply with the statute which requires that records are admissible if they are accompanied by an affidavit of “the person who made the copy” ... . The documents are therefore not admitted pursuant to s. 30(3).")

Evidence Inadmissible under s. 30

Section 30(10) states:

30.
[omitted (1), (2), (3), (4), (5), (6), (7), (8) and (9)]

Evidence inadmissible under this section

(10) 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,
(ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,
(iii) a record in respect of the production of which any privilege exists and is claimed, or
(iv) 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;
(b) any record the production of which would be contrary to public policy; or
(c) any transcript or recording of evidence taken in the course of another legal proceeding.

[omitted (11) and (12)]
R.S., 1985, c. C-5, s. 30 1994, c. 44, s. 91

– CEA (CanLII), (DOJ)

Note up: 30(10)


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.
[omitted (1), (2), (3), (4), (5), (6), (7), (8) and (9)]
(10) 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,
[omitted (ii), (iii) and (iv)]
[omitted (b) and (c))]

[omitted (11) and (12)]
R.S., 1985, c. C-5, s. 30 1994, c. 44, s. 91

– CEA (CanLII), (DOJ)

Note up: 30(10)

  1. ↑ see R v Monkhouse, 1987 ABCA 227 (CanLII), AR 62, per Laycraft JA, at para 15 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 CanLII 1473 (NB CA), (1973), 6 NBR (2d) 5 (CA), per Limerick JA
    R v Crate, 2012 ABCA 144 (CanLII), 544 WAC 239, re photos produced during booking admitted under common law business records
    cf. R v Schertzer, 2008 CanLII 1836 (ON SC), 232 CCC (3d) 218, per Nordheimer J, 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
[omitted (1), (2), (3), (4), (5), (6) and (7)]

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.

[omitted (9), (10), (11) and (12)]
R.S., 1985, c. C-5, s. 30 1994, c. 44, s. 91.

– CEA (CanLII), (DOJ)

Note up: 30(8)

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

Generally a person who can swear an affidavit should be someone who can state that:

  • they have access to the records that the organization keeps in the course of business;
  • the organization relies on these records for their business;
  • the storage system is reliable and relied upon to keep the records in order.

The records themselves should be attached to the affidavit. If they are not attached, the contents of the affidavit should be detailed enough that the judge is able to identify exactly what record the affidavit is referring to or other surrounding evidence must be capable of resolving the question of identifying the appropriate records.[3]

  1. ↑ R v Parker, 1984 CanLII 3562 (ON CA), 16 CCC (3d) 478, per Brooke JA
  2. ↑ Parker, ibid.
  3. ↑ e.g. R v Rashid, 2021 ONSC 3443 (CanLII), per Nakatsuru J

Explanation of Records

30.
[omitted (1), (2) and (3)]

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.

[omitted (5), (6), (7), (8), (9), (10), (11) and (12)]

– CEA (CanLII), (DOJ)

Note up: 30(4)

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 R v Jahanrakhshan, 2013 BCCA 128 (CanLII), per Donald JA, at paras 25 to 31

Notice

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

s. 30
[omitted (1), (2), (3), (4), (5) and (6)]

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.

[omitted (8), (9), (10), (11) and (12)]

– CEA (CanLII), (DOJ)

Note up: 30(7)

Section 30 requires service of notice of intention to admit the documents as well as a copy of the document on the other parties within seven days.

Purpose

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]

Sufficiency

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

Exemption

The court has discretion to exempt a party from this rule.[4]

Exemption should only be given where it will not prejudice the accused.[5]

Factors for Exemption

Factors to be considered for exempting the notice provisions include:[6]

  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.
Admission of Record at Preliminary Inquiry May be Sufficient Notice

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

Example

In R v Kennedy, 2008 NSPC 73 (CanLII), 869 APR 170, per Campbell J, the judge refused to allow a printout from a computer screen with only one day notice.

See also: R v Bath, 2010 BCSC 1137 (CanLII), per Holmes J
R v Bellingham, 2002 ABPC 41 (CanLII), 326 AR 376, per Rae J

  1. ↑ R v Cordes, 1978 ALTASCAD 94 (CanLII), 40 CCC (2d) 442 (ABCA), per Prowse JA
  2. ↑ R v Handous, 2012 ABPC 49 (CanLII), 537 AR 108, per Henderson J, at para 18
  3. ↑ R v Schiel, 2005 BCPC 581 (CanLII), per Romilly J
    Handous, supra, at para 19
  4. ↑ R v CM, 2012 ABPC 139 (CanLII), 540 AR 73, per Franklin J - phone bill and text messages admissible for truth on short notice
    R v Mahoney, 1986 ABCA 195 (CanLII), 17 WCB 289, per Harradence JA, 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
  5. ↑ John Sopinka and Sidney N. Lederman, The Law of Evidence in Civil Cases Toronto: Butterworths (1974), at p. 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.")
  6. ↑ R v Nguyen et al, 2001 ABPC 52 (CanLII), 294 AR 201, per Stevenson ACJ
  7. ↑ R v Voykin, 1986 ABCA 154 (CanLII), 29 CCC (3d) 280, per Hetherington JA

Calculating Notice Periods

NB: this time limit is subject to the "Holiday Rule" that moves the date to the next non-holiday day (see s. 26 of Interpretation Act)

See Also

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