Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Kenrick Kirk Howard
Before the Court
Justice: G.P. Renwick
Heard on: 14 June 2017
Admissibility Ruling released on: 14 June 2017
Counsel
T. Dietrich — counsel for the Public Prosecution Service of Canada
C. Fearon-Forbes — counsel for the defendant, Kenrick Kirk Howard
Admissibility Ruling
RENWICK J.: (orally)
Introduction
1During Mr. Howard's trial for an alleged violation of section 52(1) of the Immigration and Refugee Protection Act the prosecution seeks to adduce into evidence an affidavit of Travis Ujjainwalla, a Program Support Officer of the Operations Support Centre for Immigration, Refugees, and Citizenship Canada. The defendant, through counsel, takes objection to the admissibility of this affidavit on the basis that it is hearsay, i.e., an out of court statement being adduced to prove the truth of its contents.
2Specifically, counsel for the defendant takes issue with the lack of notice provided by the prosecution of the intention to introduce this document at the defendant's trial, contrary to the explicit requirements of section 28 of the Canada Evidence Act. Both parties agree that the affidavit is a document that is prima facie admissible pursuant to the provisions of s. 26(2) of the Canada Evidence Act.
3There is no dispute among the parties that the affidavit has been provided to the defendant as part of the disclosure of the investigation. Counsel for the defendant admits that this affidavit was contained in a disclosure volume recently served upon the defendant, 12 days before the start of the trial. Also served with that disclosure volume was a volume of 38 documents along with a notice of the prosecution's intention to adduce those 38 documents at the defendant's trial.
4The prosecutor submits that it was simply an oversight that led to the inclusion of the affidavit in the disclosure volume and its absence from the volume to which the Notice of Intention applied. The prosecutor submitted that counsel has been aware of this affidavit for a period of time in excess of the statutorily provided notice period in s. 28(2) of the Canada Evidence Act and because the prosecution involves proving that the defendant had entered Canada contrary to a deportation order and without authorization to return it would have been obvious to the defendant that this affidavit would be introduced at the defendant's trial.
5Counsel for the defendant also drew the Court's attention to the fact that the defendant had been served a volume of documents with a Notice of Intention on a prior occasion from the previous prosecutor with carriage of this matter, and the affidavit at issue was not contained therein as well.
Analysis
6Section 28 of the Canada Evidence Act permits the reception of documents at trial for specified sections of the Act, if proper notice has been given. The language of the section is mandatory:
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.
7In R. v. Algafori, [2016] O.J. No. 2384 (S.C.J.), Mr. Justice Ratushny considered an appeal in relation to a driving while disqualified offence under the Criminal Code of Canada. The sole issue at the trial was whether or not the prosecution could introduce a certified copy of a driving prohibition order to establish the actus reus of the offence. In that case, the prosecutor had served upon the defendant a police copy of the prohibition order in question which was unsigned by the defendant. At trial, the prosecutor sought to file a signed copy of the same order, which had been disclosed two days before trial. The trial judge found that the prosecution had failed to give appropriate notice of the specific document it sought to introduce (i.e., a copy of the prohibition order which was signed by the defendant) as required by s. 28 of the Canada Evidence Act, and the defendant was acquitted.
8Mr. Justice Ratushny discussed four basic legal principles that applied with respect to proper notice under s. 28:
i. First, the case discusses the distinction between law and fact: while it is generally a factual issue whether or not reasonable notice has been given, the issue may involve a question of mixed fact and law according to the means by which the trier of fact reaches their finding;
ii. Second, His Honour cites R. v. Good, [1983] A.J. No. 797 (C.A.) to define reasonable notice:
The real test is that the notice must be reasonable in time and substance and must not be misleading, confusing or otherwise prejudicial. It must clearly and precisely bring home to the accused that the certificate may be used in relation to a charge arising from the incident. No particular form of notice is required and there is no inflexible legal presumption that any explanatory words accompanying service will dilute the clear wording of the notice. Some words may. For example, advice given a suspect in direct contradiction to the form of the notice, could well support a finding of ambiguity. Whether notice is reasonable should be a question of fact in each case where the objection is taken. Then all evidence pertaining to the issue must be weighed by the trial judge before the certificate will be deemed admissible in evidence. However, given a printed notice clear and impactive on its face together with early and proper service thereof, a finding of confusion or ambiguity in the absence of defence evidence to that effect would be rare indeed;
iii. Third, again, quoting from the Good decision the court states:
The third is the refusal of appellate courts to "invalidate notices on mere technical objection that the procedure left something to be desired..." because the utility of provisions allowing for a simplification in the production of evidence "is not to be diluted by an insistence on perfection" (Good at para. 7); and
iv. Fourth, the cases do not require that the notice include the actual document for which notice is given, but rather "only reasonable notice of the intention to admit into evidence" the document.
9In that case, Justice Ratushny found that the reasonable notice provisions of the Canada Evidence Act had been satisfied and granted the Crown's appeal and convicted the defendant.
10Unlike the document at issue in the Algafori case, the affidavit is an original piece of evidence. It is the contents of what Travis Ujjainwalla would say if called as a witness in these proceedings.
11Section 26(2) of the Canada Evidence Act provides for the admissibility of an affidavit of a record holder. Unlike s. 26(1), subsection 2 does not refer to the copies of records kept by government offices. Instead, this subsection provides for record holders to attest to the lack of particular licenses or documents in the record keeping systems of government offices. In other words, if a particular license or authorization has never been produced, and no copy of that license or authorization exists, s. 26(2) permits the record holder to attest to the lack of such records by affidavit form and provides for the admissibility of this affidavit into trial proceedings. This makes sense; while s. 26(1) provides for the admissibility of the copies of records kept by the government, s. 26(2) provides for the admissibility of an affidavit to prove that no such records exist, without the necessity to require viva voce evidence of the record holder to substantiate this.
12Section 28 of the Canada Evidence Act specifically deals with copies of records. I gather that the section is to ensure that copies of government records are not introduced in prosecutions unless proper and sufficient notice of the intention to introduce the copies into evidence during the trial has been given. This section is silent about the affidavits of record holders sought to be introduced pursuant to s. 26(2) of the Act.
13On this basis, I find that the affidavit of Travis Ujjainwalla is partially admissible evidence in this trial.
14Parts of the affidavit include certain copies of documents, which are named as exhibits A through D of the affidavit. These appendices to the affidavit actually include copies of government records. These documents are precisely what s. 26(1) of the Canada Evidence Act includes and for which s. 28 notice is required.
15I am not satisfied on a balance of probabilities that strict compliance with s. 28 of the Act has been made with respect to a portion of the affidavit of Travis Ujjainwalla.
16Accordingly, the majority of the affidavit at issue is admissible, but those portions of the affidavit referring to the exhibits are inadmissible. Specifically, paragraphs 4 and 8, and the appendices to the affidavit are not admissible in Mr. Howard's trial.
Released: 14 June 2017
Justice G. Paul Renwick