Private Documents: Difference between revisions
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{{Currency2|January|2013}} | |||
{{LevelOne}}{{HeaderDocuments}} | {{LevelOne}}{{HeaderDocuments}} | ||
==General Principles== | ==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. | 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== | ==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.<ref> | 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.<ref> | ||
See Digital Evidence in Criminal Law, 2011 | See Digital Evidence in Criminal Law, 2011{{atp|21}}<br> | ||
see also | see also {{CanLIIR-N|McWhinney| [1992] MJ No 625 (MBPC)}}</ref> | ||
It is important to distinguish records made from the investigation and those that are simply retrieved during the investigation.<ref> | It is important to distinguish records made from the investigation and those that are simply retrieved during the investigation.<ref> | ||
e.g. | e.g. {{CanLIIRP|B(L)|25dwz|2009 BCSC 1194 (CanLII)| [2009] BCJ No 1741}}{{perBCSC|Holmes J}}{{atsL|25dwz|5| to 8}} - production order for records from phone company</ref> | ||
Even materials such as the contents of a report that extracts from a larger body of records will be considered pre-existing.<ref>Digital Evidence in Criminal Law | Even materials such as the contents of a report that extracts from a larger body of records will be considered pre-existing.<ref>Digital Evidence in Criminal Law{{atp|21}}</ref> | ||
{{reflist|2}} | {{reflist|2}} | ||
| Line 18: | Line 19: | ||
{{seealso|Mental Illness|Traditional Exceptions to Hearsay}} | {{seealso|Mental Illness|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:<ref> | 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:<ref> | ||
see [ | see [{{CCCSec|672.21}} s. 672.21]</ref> | ||
* "determining whether the accused is unfit to stand trial;" | * "determining whether the accused is unfit to stand trial;" | ||
* "making a disposition or placement decision respecting the accused" | * "making a disposition or placement decision respecting the accused" | ||
| Line 32: | Line 33: | ||
Nevertheless, appellate court have frequently refused to invalidate notices on technicalities of procedure.<ref>e.g. | Nevertheless, appellate court have frequently refused to invalidate notices on technicalities of procedure.<ref>e.g. | ||
{{CanLIIRP|Good et al.|2f058|1983 ABCA 141 (CanLII)| }}{{perABCA|McCLung JA}}{{atL|2f058|7}}</ref> | |||
The purpose of the notice provisions is to "simply the production of evidence" which would reduce the time and cost of criminal prosecutions.<ref>Good at 7</ref> | |||
Notice regarding documents and records are addressed under s. 28 of the Canada Evidence Act: | Notice regarding documents and records are addressed under s. 28 of the Canada Evidence Act: | ||
{{ | {{quotation2| | ||
; Notice of production of book or document | |||
28 | 28 (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23 {{AnnSecE|23}}, 24 {{AnnSecE|24}}, 25 {{AnnSecE|25}}, 26 {{AnnSecE|26}} or 27 {{AnnSecE|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. | ||
<br> | <br> | ||
; 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. | (2) The reasonableness of the notice referred to in subsection (1) {{AnnSecE|28(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. | ||
| | |{{CEASec2|28}} | ||
|{{NoteUpCEA|28|1|2}} | |||
}} | }} | ||
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{{Reflist|2}} | {{Reflist|2}} | ||
===Form of Service=== | ===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.<ref> | 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.<ref> | ||
SCR 1062, [http://canlii.ca/t/1z77h 1979 CanLII 206] (SCC) | {{CanLIIRP|Cordes|fp49m|1978 ALTASCAD 94 (CanLII)|40 CCC (2d) 442}}{{perABCA|Prowse JA}}, aff’d [1979] 1 SCR 1062, [http://canlii.ca/t/1z77h 1979 CanLII 206] (SCC){{perSCC-H|Martland J}} | ||
</ref> | </ref> | ||
| Line 56: | Line 59: | ||
===Party to Serve=== | ===Party to Serve=== | ||
Service is usually served upon counsel for the party. <ref> | Service is usually served upon counsel for the party. <ref> | ||
{{CanLIIRP|Fowler|gc5jf|1982 CanLII 3683 (NSCA)|2 CCC (3d) 227}}{{perNSCA|MacKeigan CJNS}}<br> | |||
{{CanLIIRP|Vollman|g8f0k|1989 CanLII 4798 (SK CA)|52 CCC (3d) 379}}{{perSKCA| Bayda JA}}<br> | |||
</ref> | </ref> | ||
However, service on an assistant or secretary is also permitted.<ref> | However, service on an assistant or secretary is also permitted.<ref> | ||
{{CanLIIR-N|Page| (1989) 8 WCB 339 - CA009333 (BCCA)}}</ref> | |||
Service on relatives of the accused is not always sufficient.<ref> | Service on relatives of the accused is not always sufficient.<ref> | ||
{{CanLIIR-N|Lewis| (1972), 6 CCC 189 (Ont.CA)}}<br> | |||
{{CanLIIRP|Godon|g7sjw|1984 CanLII 2582 (SK CA)|12 CCC (3d) 446}}{{perSKCA|Hall JA}} - found sufficient | |||
</ref> Service by fax machine to the counsel's address is satisfactory.<ref> | </ref> | ||
Service by fax machine to the counsel's address is satisfactory.<ref> | |||
{{CanLIIRx|Dillon|1l269|2005 CanLII 22212 (ON SC)}}{{perONSC|Hill J}} | |||
</ref> | </ref> | ||
Service must be proven by oral evidence and not simply affidavit.<ref> | Service must be proven by oral evidence and not simply affidavit.<ref> | ||
{{CanLIIR-N|Veinot| (1983), 3 CCC 113 (NSCA)}}</ref> | |||
Notice of ''certificates of analysis'' of drugs seized must be made to be admissible. Simply providing disclosure does not constitute notice. <ref> | Notice of ''certificates of analysis'' of drugs seized must be made to be admissible. Simply providing disclosure does not constitute notice. <ref> | ||
{{CanLIIRx|Cardinal|2d3xf|2010 NWTTC 16 (CanLII)}},''per'' Schmaltz J</ref> | |||
{{Reflist|2}} | {{Reflist|2}} | ||
===Proof of service=== | ===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 | 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 to follow the procedure, the judge may conclude that it was done properly.<ref> | ||
{{CanLIIRP|Lorenz|fnq2n|2011 SKPC 164 (CanLII)|392 Sask R 41}}{{perSKPC|Kovatch J}}{{atL|fnq2n|21}}</ref> | |||
{{Reflist|2}} | {{Reflist|2}} | ||
Latest revision as of 14:38, 14 July 2024
| This page was last substantively updated or reviewed January 2013. (Rev. # 95466) |
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]
- ↑
See Digital Evidence in Criminal Law, 2011, at p. 21
see also R v McWhinney [1992] MJ No 625 (MBPC)(*no CanLII links) - ↑ e.g. R v B(L), 2009 BCSC 1194 (CanLII), [2009] BCJ No 1741, per Holmes J, at paras 5 to 8 - production order for records from phone company
- ↑ Digital Evidence in Criminal Law, at p. 21
Assessment Records
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 [evidence of judicial proceedings, etc.], 24 [public records certified copies], 25 [public books and documents], 26 [books kept in offices under Government of Canada] or 27 [notarial acts in Quebec], 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) [notice of production of public book or document] shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.
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).
- ↑ e.g. R v Good et al., 1983 ABCA 141 (CanLII), per McCLung JA, at para 7
- ↑ 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]
- ↑ R v Cordes, 1978 ALTASCAD 94 (CanLII), 40 CCC (2d) 442, per Prowse JA, aff’d [1979] 1 SCR 1062, 1979 CanLII 206 (SCC), per Martland J
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]
- ↑
R v Fowler, 1982 CanLII 3683 (NSCA), 2 CCC (3d) 227, per MacKeigan CJNS
R v Vollman, 1989 CanLII 4798 (SK CA), 52 CCC (3d) 379, per Bayda JA
- ↑ R v Page (1989) 8 WCB 339 - CA009333 (BCCA)(*no CanLII links)
- ↑
R v Lewis (1972), 6 CCC 189 (Ont.CA)(*no CanLII links)
R v Godon, 1984 CanLII 2582 (SK CA), 12 CCC (3d) 446, per Hall JA - found sufficient - ↑ R v Dillon, 2005 CanLII 22212 (ON SC), per Hill J
- ↑ R v Veinot (1983), 3 CCC 113 (NSCA)(*no CanLII links)
- ↑ R v Cardinal, 2010 NWTTC 16 (CanLII),per Schmaltz J
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 to follow the procedure, the judge may conclude that it was done properly.[1]
- ↑ R v Lorenz, 2011 SKPC 164 (CanLII), 392 Sask R 41, per Kovatch J, at para 21