Public and Judicial Documents

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Public Documents

Legislation and Regulations

Under s. 19, 20, 21, and 22 of the Canada Evidence Act, Acts of Parliament and provincial legislation is admissible without proof.[1] There is no need for certification, and all copies are deemed admissible unless proven otherwise.

Copies by Queen’s Printer
19. Every copy of any Act of Parliament, public or private, published by the Queen’s Printer, is evidence of that Act and of its contents, and every copy purporting to be published by the Queen’s Printer shall be deemed to be so published, unless the contrary is shown.
R.S., 1985, c. C-5, s. 19; 2000, c. 5, s. 52.
Imperial proclamations, etc.
20. Imperial proclamations, orders in council, treaties, orders, warrants, licences, certificates, rules, regulations or other Imperial official records, Acts or documents may be proved

(a) in the same manner as they may from time to time be provable in any court in England;
(b) by the production of a copy of the Canada Gazette, or a volume of the Acts of Parliament purporting to contain a copy of the same or a notice thereof; or
(c) by the production of a copy of them purporting to be published by the Queen’s Printer.

R.S., 1985, c. C-5, s. 20; 2000, c. 5, s. 53.
Proclamations, etc., of Governor General
21. Evidence of any proclamation, order, regulation or appointment, made or issued by the Governor General or by the Governor in Council, or by or under the authority of any minister or head of any department of the Government of Canada and evidence of a treaty to which Canada is a party, may be given in all or any of the following ways:

(a) by the production of a copy of the Canada Gazette, or a volume of the Acts of Parliament purporting to contain a copy of the treaty, proclamation, order, regulation or appointment, or a notice thereof;
(b) by the production of a copy of the proclamation, order, regulation or appointment, purporting to be published by the Queen’s Printer;
(c) by the production of a copy of the treaty purporting to be published by the Queen’s Printer;
(d) by the production, in the case of any proclamation, order, regulation or appointment made or issued by the Governor General or by the Governor in Council, of a copy or extract purporting to be certified to be true by the clerk or assistant or acting clerk of the Queen’s Privy Council for Canada; and
(e) by the production, in the case of any order, regulation or appointment made or issued by or under the authority of any minister or head of a department of the Government of Canada, of a copy or extract purporting to be certified to be true by the minister, by his deputy or acting deputy, or by the secretary or acting secretary of the department over which he presides.

R.S., 1985, c. C-5, s. 21; 2000, c. 5, s. 54.

Proclamations, etc., of lieutenant governor
22. (1) Evidence of any proclamation, order, regulation or appointment made or issued by a lieutenant governor or lieutenant governor in council of any province, or by or under the authority of any member of the executive council, being the head of any department of the government of the province, may be given in all or any of the following ways:

(a) by the production of a copy of the official gazette for the province purporting to contain a copy of the proclamation, order, regulation or appointment, or a notice thereof;
(b) by the production of a copy of the proclamation, order, regulation or appointment purporting to be published by the government or Queen’s Printer for the province; and
(c) by the production of a copy or extract of the proclamation, order, regulation or appointment purporting to be certified to be true by the clerk or assistant or acting clerk of the executive council, by the head of any department of the government of a province, or by his deputy or acting deputy, as the case may be.

Territories
(2) Evidence of any proclamation, order, regulation or appointment made by the Lieutenant Governor or Lieutenant Governor in Council of the Northwest Territories, as constituted prior to September 1, 1905, or by the Legislature of Yukon, of the Northwest Territories or for Nunavut, may be given by the production of a copy of the Canada Gazette purporting to contain a copy of the proclamation, order, regulation or appointment, or a notice of it.
R.S., 1985, c. C-5, s. 22; 1993, c. 28, s. 78; 2000, c. 5, s. 55; 2002, c. 7, s. 96; 2014, c. 2, s. 5.


  1. Canada Evidence Act s. 19, 20, 21, 22

Official Government Documents

Section 24 states:

Certified copies
24. In every case in which the original record could be admitted in evidence,

(a) a copy of any official or public document of Canada or of any province, purporting to be certified under the hand of the proper officer or person in whose custody the official or public document is placed, or
(b) a copy of a document, by-law, rule, regulation or proceeding, or a copy of any entry in any register or other book of any municipal or other corporation, created by charter or Act of Parliament or the legislature of any province, purporting to be certified under the seal of the corporation, and the hand of the presiding officer, clerk or secretary thereof,

is admissible in evidence without proof of the seal of the corporation, or of the signature or official character of the person or persons appearing to have signed it, and without further proof thereof.
R.S., c. E-10, s. 24.

CEA

Certificates of provincial incorporation can be admitted under s. 24 and 37 of the CEA.[1]

Aeronautical charts produced by the Government of Canada are admissible without notice due to their inherent reliabillity.[2]

  1. R v John & Murray Motors Ltd (1979) 47 CCC (2d) 49 (BCCA) (*no link)
  2. R v Inuvik Coast Airways (1984) 10 CCC (3d) 89 (NWTSC)(*no link)

Police Documents

Publicly Accessible Documents under the CEA

Section 25 concerns the admissibility of documents of a "public nature":

Books and documents
25. Where a book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, and no other Act exists that renders its contents provable by means of a copy, a copy thereof or extract therefrom is admissible in evidence in any court of justice or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence, if it is proved that it is a copy or extract purporting to be certified to be true by the officer to whose custody the original has been entrusted.


CEA

This typically would include books available in a library, newspapers, website printouts, brochures, and other documents that are readily accessible in public.

Public Documents at Common Law

A document is admissible at common law as a public document where the following criteria are satisfied:[1]

  1. the document must have been made by a public official, that is a person on whom a duty has been imposed by the public,
  2. the public official must have made the document in the discharge of a public duty or function,
  3. the document must have been made with the intention that it serve as a permanent record, and
  4. the document must be available for public inspection.

A Pre-sentence report may be considered a public document at common law.[2]

  1. R v P.(A.), 1996 CanLII 871 (ON CA), (1996), 109 CCC (3d) 385 per Laskin JA
  2. R v William Batisse, 2012 ONSC 6504 (CanLII)

Judicial Documents

Judicial Proceedings

Under s. 23, records of judicial proceedings may be entered in as evidence:

Evidence of judicial proceedings, etc.
23. (1) Evidence of any proceeding or record [before any court in Canada for foreign court] or before any justice of the peace or coroner in a province, may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal of the court or under the hand or seal of the justice, coroner or court stenographer, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice, coroner or court stenographer or other proof whatever.

CEA

A court transcript admissible as a record of a judicial proceedings (or "public document") without notice under the common law.[1]

  1. R. v C. (W. B.), 2000 CanLII 5659 (ON CA), at paras 29 to 48 citing Tatomir (1989) 51 CCC (3d) 321

Court Documents and Orders

An information and probation order that were not made under seal or signed by a judge of the court (thus not admissible under s. 23 of the CEA) are admissible as a public document defined in s. 24(a) under the common law.[1] To be admissible it must:

  1. be made by a public official upon whom a public duty had been imposed
  2. made by the public official in the discharge of a public duty or function
  3. intended to serve as a permanent record;
  4. were available for public inspection.[2]

In proving probation order, an original certified copy of the order may be submitted as an exhibit without notice at the common law.[3]. This likewise is the case in proving an order of disqualification from driving.[4]

The court's file on a matter is admissible and must be received by the court if it is relevant to the case.[5]

A judge has a right to review and rely upon the contents of the Court file when in the presence of counsel.[6]

Both a provincial court and superior court "has the authority to examine its own records and take judicial notice of their contents."[7]

A court may "compare the disputed handwriting with admitted or proven handwriting, and act upon its own judgment".[8]

Unclear notations on a court document may require that the clerk of the court be called to explain them.[9]

The records do not need to be certified.[10]

These public documents can also be admitted under the principled exception to hearsay.[11]

Where original copies of a search warrant and report to justice were filed before the end of the Crown case, the judge must accept them under the common law rule.[12]

  1. R v Tatomir, 1989 ABCA 233 (CanLII), (1989) 51 CCC 3d 321 - affirms common law admissibility of court documents
  2. R v P(A), 1996 CanLII 871 (ON CA), (1996) 109 CCC 3d 385
  3. R v Lebreux [1993] N.W.T.J. No. 97(*no link)
  4. R v Tatomir, 1989 ABCA 233 (CanLII)
  5. R v Tkachuk, 2009 BCSC 834 (CanLII) at paras 13, 19
  6. R v Truong, 2008 BCSC 1151 (CanLII), at para 60
  7. R v Tysowski, 2008 SKCA 88 (CanLII) at para 19
    R v Sinclair, 2007 ABPC 353 (CanLII)
    R v Ouellette, 2005 ABCA 282 (CanLII)
    R v Zinyk, 2010 ABPC 40 (CanLII)
    R v Evaglok, 2010 NWTSC 35 (CanLII)
  8. Alan Bryany, Sidney Lederman, and Michelle Fuerst, "The Law of Evidence, (3rd Ed) Markham, Ontario:LexisNexis 2009
  9. Truong at para 49
  10. R. v Jerace, 2016 ABCA 70 (CanLII), at para 7
  11. R. v C(WB), 2000 CanLII 5659 (ON CA), 142 CCC (3d) 490
  12. R v Akpalialuk, 2016 NUCA 1 (CanLII)

Notice

All documents and records, whether private or public, 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.
(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. R.S., c. E-10, s. 28.


CEA

While government records are admissible under s. 24, s. 28 still requires that there be at least 7 days notice for their admission.[1] Late notice to produce documents however is not necessarily fatal.[2]

Notice must be given to the accused of intention to admit the recognizance under s. 23, 28. Notice must include information on the offence specified, location of the offence, and accused person.[3]

  1. R v Connor (1990) 98 NSR (2d) 356(*no link) - certificate of motor vehicle ownership excluded
  2. eg. R v Bourque (1990) 102 NSR (2d) 385 (NSCA)(*no link) - documents admitted with 11 days notice (only 4 were working days)
  3. R v Verde, 2012 ONCJ 368

Exemplification of Court Documents

At common law, court documents, including court orders, are admissible without notice where the court document is an original or a photocopy under seal.[1] This has been considered available under the hearsay exception for public documents and judicial proceedings.[2] 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.[3]

Exemplifications are photocopies of official court documents that have the official seal of the court. It cannot apply to any non-court generated document attached to the court file. Section 28 has no application to exemplified document.

A regular copy of the document is all that is necessary to serve to comply with s.28 of the CEA. There is no requirement that the copy be certified.[4]

This rule applies to court orders including recognizances.[5]

  1. R v Lebreux [1993] N.W.T.J. No. 97(*no link)
    R v Tatomir, 1989 ABCA 233 (CanLII) - admits driving prohibition order
    R v Reid, 2007 ABPC 34 (CanLII)
    Documentary Evidence in Canada (1984), J. Douglas Ewart Stated, at p. 183 ("At common law, judicial documents must be proved by the production of the original record or an exemplification under the seal of the court to which the record belongs. No notice is required.")
  2. R v P. (A.) 1996 CanLII 871 (ON CA), (1996), 109 CCC (3d) 385 at 389-390
    R v C. (W.B.), 2000 CanLII 5659 (ON CA), (2000), 142 CCC (3d) 490 at 29-31
    R v Schellenberg, 2011 MBQB 240 (CanLII)
    See Hearsay
  3. R v Williams, 2004 ONCJ 80 (CanLII) at paras 17-18
  4. R v Dixon, 2006 NBQB 197 (CanLII)
  5. R v Rowen, 2013 ONSC 789 (CanLII) at para 16

Police Documents

Notice of Intention to produce a certificates of analysis require notice. Where it is a certificate for a breathalizer test, section 258(7) applies:

No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h), or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

This requires that the crown prove that service was made, that it was made in a reasonable time, and that the notice communicated the intention to produce the materials at trial.

Where notice to produce a certificate of analysis is served upon an accused person, there is a rebuttable presumption that the person understand the notice.[1]

  1. R v Hamm, 1976 CanLII 177, [1977] 2 SCR 85

Foreign Public Documents

Part III of the Evidence Act states:

Application of this Part
52. This Part extends to the following classes of persons:

(a) officers of any of Her Majesty’s diplomatic or consular services while performing their functions in any foreign country, including ambassadors, envoys, ministers, charges d’affaires, counsellors, secretaries, attaches, consuls general, consuls, vice-consuls, pro-consuls, consular agents, acting consuls general, acting consuls, acting vice-consuls and acting consular agents;
(b) officers of the Canadian diplomatic, consular and representative services while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada, including, in addition to the diplomatic and consular officers mentioned in paragraph (a), high commissioners, permanent delegates, acting high commissioners, acting permanent delegates, counsellors and secretaries;
(c) Canadian Government Trade Commissioners and Assistant Canadian Government Trade Commissioners while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
(d) honorary consular officers of Canada while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada;
(e) judicial officials in a foreign country in respect of oaths, affidavits, solemn affirmations, declarations or similar documents that the official is authorized to administer, take or receive; and
(f) persons locally engaged and designated by the Deputy Minister of Foreign Affairs or any other person authorized by that Deputy Minister while performing their functions in any foreign country or in any part of the Commonwealth and Dependent Territories other than Canada.


R.S., 1985, c. C-5, s. 52; 1994, c. 44, s. 92; 1997, c. 18, s. 118.
Oaths and Solemn Affirmations
Oaths taken abroad
53. Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
R.S., c. E-10, s. 50.
Documentary Evidence
Documents to be admitted in evidence
54. (1) Any document that purports to have affixed, impressed or subscribed on it or to it the signature of any person authorized by any of paragraphs 52(a) to (d) to administer, take or receive oaths, affidavits, solemn affirmations or declarations, together with their seal or with the seal or stamp of their office, or the office to which the person is attached, in testimony of any oath, affidavit, solemn affirmation or declaration being administered, taken or received by the person, shall be admitted in evidence, without proof of the seal or stamp or of the person’s signature or official character.
Status of statements
(2) An affidavit, solemn affirmation, declaration or other similar statement taken or received in a foreign country by an official referred to in paragraph 52(e) shall be admitted in evidence without proof of the signature or official character of the official appearing to have signed the affidavit, solemn affirmation, declaration or other statement.
R.S., 1985, c. C-5, s. 54; 1994, c. 44, s. 93.