Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Kirupakaran Markandu
Before: Justice M.T. Devlin
Heard on: April 22 & 23, 2013; Continuing on October 18, 2013
Reasons for Ruling released: July 11, 2013
Counsel:
- M. Malleson – Counsel for the Crown
- J. Fitzmaurice – Counsel for the accused K. Markandu
DEVLIN J.:
This is the ruling on the issue of the admissibility of evidence which arose midway through Mr. Markandu's trial.
Mr. Markandu is charged with 10 criminal offences:
- 8 counts of fraud over $5,000.00
- 1 count of possession over $5,000.00
- 1 count of mail theft
The charges stem from an allegation that Mr. Markandu either directly or through others, fraudulently cashed a number of corporate cheques between October 31st, 2011 and December 28th, 2011.
The Issues
The issues are:
Whether Ms. Jaramy's testimony is admissible regarding the location of the ATM machines where the fraudulent transactions occurred; and
Whether the ATM photographs of the ATM surveillance video are admissible.
The Crown submits that all the proposed evidence is admissible.
Regarding the locations of ATM machines, the Crown submits that the viva voce evidence of Ms. Jaramy is admissible as an exception to the hearsay rule. Regarding the photographs of the ATM video, the Crown submits that they are either admissible pursuant to s. 29 of the Canada Evidence Act, or as real evidence.
The Defence submits that none of the proposed evidence is admissible for the truth of its contents because it is hearsay evidence that is not protected by any exception to the hearsay rule or by s. 29 of the Canada Evidence Act.
The Facts
Ms. Jaramy works with the CIBC Corporate Security Department. She testified that she was able to pinpoint the location of the ATM machines where the fraudulent transactions occurred by relying on the central listing of all ATM locations in Canada which is produced by the Canadian Bankers' Association.
Mr. Marchand works for Scotiabank. He testified that he reviewed the ATM surveillance videos and made photographs of the transactions for the dates and times requested by the investigators.
The Law
Counsel referred me to two cases: R. v. Li, [2003] O.J. No. 574, OCA and R. v. Pires, 2012 ONCJ 713, and to s. 29 of the Canada Evidence Act. I have reviewed this material and the submissions of counsel.
On the issue of Ms. Jaramy's evidence regarding the location of the ATM machines, I rely on and adopt the reasons of the Ontario Court of Appeal in Li which dealt with an analogous situation. I conclude that the record relied upon by Ms. Jaramy, namely the banks' central listing of ATM locations, satisfies the reliability and necessity requirements of the principled exception to the hearsay rule. Ms. Jaramy's evidence about the ATM locations is therefore admissible for the truth of its contents.
On the issue of the admissibility of the photographs from the ATM surveillance video, I find that they are admissible for the truth of their contents pursuant to s. 29 of the Canada Evidence Act.
Released: July 11, 2013
Signed: "Justice Devlin"