Private Documents

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General Principles

Documents that are generated by someone other than a public institution, a court, financial institution, or business are admissible under statute and common law.

Investigation Records

Records that re generated in the course of an investigation cannot fall within business records as they are not being kept within the ordinary course of business.[1]

It is important to distinguish records made from the investigation and those that are simply retrieved during the investigation.[2] Even materials such as the contents of a report that extracts from a larger body of records will be considered pre-existing.[3]

  1. See Digital Evidence in Criminal Law, 2011 at p. 21
    see also R v McWhinney [1992] M.J. No 625 (MBPC)(*no link)
  2. e.g. R v B.(L.) [2009] BCJ No 1741(*no link) at para 5-8 - production order for records from phone company
  3. Digital Evidence in Criminal Law at p. 21

Assessment Records

See also: Mental Illness and Traditional Exceptions to Hearsay

Any written statements made as part of a Part XX.1 assessment order (fitness to stand trial or NCR) is a "protected statement" and cannot be tendered into evidence without the consent of the accused, except for the purpose of:[1]

  • "determining whether the accused is unfit to stand trial;"
  • "making a disposition or placement decision respecting the accused"
  • "determining whether the balance of the mind of the accused was disturbed at the time of the commission of the alleged offence, whether the accused is a female person charged with an offence arising out of the death of her newly-born child;"
  • "determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict;"
  • "challenging the credibility of an accused in any proceeding where the testimony of the accused is inconsistent in a material particular with a protected statement that the accused made previously;" or
  • "establishing the perjury of an accused who is charged with perjury in respect of a statement made in any proceeding."

Notice of Intention to Admit Documents

Notice is usually required for submitting most forms of documentary evidence.

Nevertheless, appellate court have frequently refused to invalidate notices on technicalities of procedure.[1] The purpose of the notice provisions is to "simply the production of evidence" which would reduce the time and cost of criminal prosecutions.[2]

Notice regarding documents and records are addressed under s. 28 of the Canada Evidence Act:

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.
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.


CEA

Section 28 applies to judicial documents under seal (s. 23), business documents under seal (s. 24), copies of publicly-accessible documents and books (s. 25), books possessed by federal government (s. 26), and documents notarized in Quebec (s. 27).

  1. e.g. R v Good et al. 1983 ABCA 141 (CanLII) at para 7
  2. Good at 7

Form of Service

The form of notice is not specific in the legislation and so can be in many forms, including by the admission of the documents in the preliminary inquiry hearing.[1]

  1. R v Cordes (1978), 40 CCC (2d) 442, (ABCA) aff’d [1979] 1 SCR 1062

Party to Serve

Service is usually served upon counsel for the party. [1] However, service on an assistant or secretary is also permitted.[2] Service on relatives of the accused is not always sufficient.[3] Service by fax machine to the counsel's address is satisfactory.[4]

Service must be proven by oral evidence and not simply affidavit.[5]

Notice of certificates of analysis of drugs seized must be made to be admissible. Simply providing disclosure does not constitute notice. [6]

  1. R v Fowler, (1982), 2 CCC (3d) 227 (NSCA)(*no link)
    R v Vollman, 1989 CanLII 4798 (SK CA), (1989), 52 CCC (3d) 379 (Sask.C.A.)
  2. R v Page (1989) 8 W.C.B. 339 - CA009333 (BCCA)(*no link)
  3. R v Lewis (1972), 6 CCC 189 (Ont.CA)(*no link)
    R v Godon, 1984 CanLII 2582 (SK CA), (1984), 12 CCC (3d) 446 - found sufficient
  4. R v Dillon, 2005 CanLII 22212 (ON S.C.)
  5. R v Veinot (1983), 3 CCC 113 (NSCA)(*no link)
  6. R v Cardinal, 2010 NWTTC 16 (CanLII)

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.[1]

  1. R v Lorenz, 2011 SKPC 164 (CanLII) at para 21

See Also