Ontario Court of Justice

Date: 2012-04-02

Judge: P. Downes J.

Counsel:

• Mr. B. Jones, for Crown
• Mr. J. Razaqpur, for Mr. Ayodeji-Emeni

1. Introduction

[1] P. Downes J.: — The accused, Justice Ayodeji-Emeni, is on trial before me for two counts of failing to comply with a recognizance contrary to s. 145(3) of the Criminal Code, with alleged offence dates of November 14th, and 16th, 2011. The trial commenced on April 2nd, 2012 and the Crown's case is complete, subject to my ruling on the admissibility of certain documents which the Crown seeks to have admitted for the truth of their contents.

[2] For the reasons that follow, I find that both documents should be admitted.

2. The Documents in Issue

[3] One of the things the Crown must prove on a charge of failing to comply with a recognizance is that the accused was, at the relevant time, subject to the terms of a recognizance. To assist in doing that at this trial the Crown has tendered three documents:

• An original information charging Mr. Ayodeji-Emeni with two counts of Robbery with an offence date of March 31st, 2011. The information was sworn on April 6, 2011 and was withdrawn on December 28th, 2011. The list of appearances and adjournments provides additional information by way of the various annotations made in relation to each time the information was before the Court;

• A certified copy of a recognizance of bail entered into by Mr. Ayodeji-Emeni on May 26th, 2011. That recognizance includes the condition which the accused is said to have violated and for which he is currently on trial. The precise term is not relevant to the current issue. The copy was certified on April 2nd, 2012, the morning of the trial;

• An original Canada Evidence Act notice indicating the Crown's intention to rely on the two documents described above. The affidavit of service was not sworn but that is irrelevant since the serving officer testified before me that he served the notice on the accused on December 20th, 2011 (the date he was arrested) and I do not understand the defence to suggest that the service of the notice was improper. A copy of the face of the notice is attached as Appendix "A" to this ruling.

[4] The pertinent text of the notice advises that the Crown will tender in evidence at this trial:

pertaining to the offence(s) of Fail to Comply with condition of recognizance entered into before a judge or justice section 145(3) C.C.:

certain copies of, and/or original books, records and documents, and without limiting the generality of the foregoing, including the following:

1. The original or certified true copy of the relevant information, specifically: (Offence date: 2011-02-04 and 2011-07-07);

2. The original or certified true copy of the relevant Undertaking or recognizance entered into before a judge;

3. A copy of this notice.

3. The Challenge to the Documents

[5] The Canada Evidence Act (CEA) permits the Crown to rely on the contents of the information and recognizance without further proof as long as it has complied with the notice requirements found in s.28 of the CEA.

[6] The defence has challenged the admissibility of the documents on the basis that the s.28 notice is deficient. If the defence is correct then the Crown cannot rely on the notice. If it cannot rely on the notice then the two documents are not admissible, at least under the authority of the CEA.

[7] Mr. Razaqpur's position on behalf of Mr. Ayodeji-Emeni is that the notice is deficient because the documents it refers to are not the documents the Crown has actually tendered. More particularly, the notice refers to an information alleging offence dates of 2011-02-04 and 2011-07-07 whereas the information actually tendered is for offence dates of March 31st, 2011. The defence contends that where the notice particularizes the documents to be tendered then those are the documents which must be tendered. Where, as here, the discrepancy between the documents described and the actual documents filed is material, then the notice must be inadequate.

[8] The defence acknowledges that only the information described in the notice is particularized with respect to the date, but says that the notice is also deficient with respect to the recognizance because the notice refers to "the relevant" recognizance and that can only reasonably be interpreted as meaning relevant to the information described in the notice, and not simply to the issues on this trial.

[9] Mr. Razaqpur is not asserting any prejudice to the accused as a result of the defect in the notice and, relying on a decision of this court in R. v. Martin, [1991] O.J. No. 826 (Ont. Prov. Div.) says that prejudice to the accused is not a relevant factor in determining this issue. Rather, he says that it is simply a matter of the strict construction of the notice provisions of the CEA.

4. The Crown's Response

[10] Mr. Jones for the Crown takes the position that the notice is reasonable and that Mr. Ayodeji-Emeni could never have been under any misapprehension as to the documents the Crown was seeking to rely on.

5. Analysis

i. Context

[11] The approach to the issue of proper notice is an area which is governed by a seemingly technical and legalistic mode of interpretation. In my view it is important to analyze these issues with an appreciation of the context in which they arise. I echo the words of Speyer J. in R. v. Saffarian, [2011] O.J. No. 774 (Ont. C.J.) at para. 12:

With respect to notices, whenever a shortcut is being used, the party opposite must be put on notice that that is the intention of the other party. That way the opposing party is not taken by surprise. That is what all of the notice provisions, whether they be the specific notice provisions of the Criminal Code, or under the Canada Evidence Act, require: fairness. If a party is going to rely on a specific document as a way of getting around a particular evidentiary hurdle, proper notice must be given to the opposing party so that they are not caught flat-footed.

[12] In that case Speyer J. made the following observation about the sufficiency of the notice in issue before her:

The charge is, as I said already, in relation to a fraud against Rogers. I think counsel's argument would have had greater strength if, for example, the notice of Intent listed documents from Loblaws. But it does not. It refers to Rogers Communications documents. This would have reasonably alerted counsel that, indeed, the documents that are in the disclosure are the documents that the Crown is going to be relying on and not some other documents from another company that is completely unrelated to this charge.

[13] In R. v. Sarosi, [2009] O.J. No. 590 (Ont. S.C.J.) at para 19 Trotter J. sounded the following note of caution regarding the expert testimony notice provisions:

It is important to approach a provision like s. 657.3 with the customary rules of statutory interpretation and common sense: see Bell ExpressVu Limited Partnership v. Rex (2002), 2002 SCC 42, 212 D.L.R. (4th) 1 (S.C.C.). Because the provision equally applies to the Crown and the defence, an unduly technical or formalistic application of the provision will eventually generate unfair outcomes.

[14] As Trotter J. also emphasised at para. 23, fairness to the parties should be the pivotal consideration.

[15] In R. v. Good (1983), 1983 ABCA 141, 6 C.C.C. (3d) 105 (Alta. C.A.) the Alberta Court of Appeal made the following observation:

Appellate courts have consistently, and rightly, refused to invalidate notices on mere technical objection that the procedure left something to be desired. The utility of these provisions in simplifying the production of evidence thereby reducing the time and cost of criminal prosecutions is not to be diluted by an insistence on perfection.

ii. The Canada Evidence Act

[16] Various statutory provisions allow for documents to substitute for viva voce evidence in a criminal trial. Typically those provisions permit documents that are tendered with a hearsay purpose to be admitted for the truth of their contents provided the documents in question meet certain criteria and the opposing party has been given reasonable notice that the other side intends to rely on them.

[17] At this trial the Crown seeks to rely on the documents described above in order to prove the fact and nature of the recognizance the accused was under on the dates of the alleged breaches.

[18] The Crown anchors its argument that the documents are admissible in the CEA, the relevant portions of which are:

23. (1) Evidence of any proceeding or record whatever of, in or before any court in Great Britain, the Supreme Court, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, any court in a province, any court in a British colony or possession or any court of record of the United States, of a state of the United States or of any other foreign country, 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.

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...

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.

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.

36. This Part shall be deemed to be in addition to and not in derogation of any powers of proving documents given by any existing Act or existing at law.

[19] In this case the Crown must establish on a balance of probabilities that the defence was given reasonable notice that the Crown would be relying on the documents alone as proof of the contents therein as opposed to calling viva voce evidence on the issue: R. v. Mackinnon, [2003] O.J. No. 3896 (Ont. C.A.).

iii. The Test

[20] In R. v. Good et al., supra, the Alberta Court of Appeal described the test for reasonable notice as follows:

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.

[21] The Ontario Court of Appeal endorsed this view In R. v. McCullagh (1990), 53 C.C.C. (3d) 130 (Ont. C.A.) with respect to the notice requirement in s. 258(7) and held that, "the test is whether the appellant knew the certificate of analysis might be used in evidence."

[22] Was the document provided to the accused in this case on the day of his arrest reasonable notice to him under s.28 of the CEA?

[23] It seems to me that in order to properly make that assessment, one must first ask, reasonable notice of what? Is it simply notice that the Crown will seek to prove its case by certain documentary evidence as opposed to viva voce evidence (in other words notice of the manner of proof), or is it, in addition to that, notice of which particular documents the Crown will seek to rely on? If is the former, then errors or ambiguity on the face of the notice with respect to the date of the information may well be immaterial. If it is the latter, then a material error in the description of the documents may be fatal to the reasonableness of the notice.

[24] That a notice must be, "reasonable in time and substance" makes sense since the notice itself is not evidence of anything directly relevant to the proof of the case against the accused. The certificate or, in this case, the information and the recognizance to which the notice refers are fundamental to proving the elements of the offence of breach recognizance; they, in and of themselves, are the only evidence capable of establishing an essential element, namely that the accused was subject to the terms of a recognizance on the dates in question. It is therefore consistent with principles of fundamental justice that the substance of the notice not be incorrect.

[25] The question raised by the defence in this case is not whether the accused knew that the Crown would seek to prove part of the case against him by use of documentary evidence, but whether he was on reasonable notice as to which documents the Crown would rely on. The defence says that because the Crown, by referencing the specific dates of the informations, chose to be very particular about exactly which documents it would tender, then only those documents are reasonably covered by the notice. A differently dated information could not reasonably be contemplated by the notice and therefore the information tendered was, in effect, not covered by any notice.

[26] There can be no serious claim that the accused was not aware of the existence of either document the Crown seeks to have admitted against him. The charge upon which he is on trial before me is particularized as to the condition he is said to have breached and there is no evidence before me to rebut the commons sense inference that the accused was aware of the existence of the two documents in issue.

[27] Equally, however, I do not know if the accused was in fact charged on an information with the dates specified in the notice. There is no direct evidence on the issue, although both dates predate the offence dates charged and one of them must be July 7, 2011. There is a hand-written annotation on the recognizance stating, "524 July 13/11" with what appears to be a signature underneath it. The recognizance also has a large hand-written "X" across it possibly suggesting that it was vacated at some point.

[28] Was the notice reasonable in time and substance and not misleading, confusing or otherwise prejudicial? Did it "clearly and precisely bring home to the accused" that the information and recognizance may be used in relation to a charge arising from the incident? The complaint about the notice before me, at least with respect to the information it describes, is not a "mere technical objection that the procedure left something to be desired." The defect goes to the heart of the characteristic of the document the Crown seeks to tender.

[29] Each case must turn on its own facts with respect to whether or not the notice in question is reasonable. Seeking guidance from precedent is always a precarious endeavour in such cases, and indeed I have found no instance where the alleged deficiencies in the notice were identical to those present in the case before me.

[30] In R. v. Pouramin, [2011] O.J. No. 3492 (Ont. C.J.) Caldwell J. addressed the sufficiency of a notice very similar in content to the one before me, except that the complaint in that case was that the notice was not specific enough in that it did not clarify whether an indictment or information would be tendered, what the specific documents were, and the date of the relevant offences. Here, of course, the complaint is that the notice is specific but that the specifics do not comport with the documents they purport to describe.

[31] Caldwell J. noted at para. 13 that the question at the end of the day was, "whether the court is satisfied on the balance of probabilities that the accused or his counsel were reasonably put on notice that certain items would be tendered at trial".

[32] I find that the notice with respect to the information in this case was not reasonable because it specified a particular information which is not the information the Crown is actually seeking to rely on. There may be an explanation for that. It may have simply been a typographical error, or may have referred to another information which the accused was subject to at one time, or it may simply have been a misunderstanding by the officer who prepared it. There is no evidence on that issue.

[33] As a result, I am left with a notice which refers to a document that, as far as this trial is concerned, does not exist. Such a notice is, on its face, not reasonable and I find that the Crown cannot rely on it in relation to the information. As a result, the information is not admissible under s.23 or 24 of the CEA.

[34] The same notice also refers, as a separately listed item, to a "certified copy of the relevant Undertaking or Recognizance". The defence says that this document is tainted by the erroneous description of the Information which is separately listed before the recognizance. I disagree.

[35] The recognizance is clearly "relevant" not to the information but to the charge of fail to comply referred to at the top of the notice. This view is consistent with fundamental principles of statutory interpretation which in my view are apposite in this case (in particular the oft-cited principle of statutory interpretation, first articulated by Driedger, in Construction of Statutes (2nd ed. 1983), that the words to be interpreted must be read "in their entire context and in their grammatical and ordinary sense": Rizzo & Rizzo Shoes Ltd., Re, [1998] 1 S.C.R. 27 (S.C.C.), at para. 21; R. v. McIntosh, [1995] 1 S.C.R. 686 (S.C.C.), at para. 21; R. v. Katigbak, 2010 ONCA 411, [2010] O.J. No. 2412 (Ont. C.A.) at para. 58.

[36] As a result, I find that the notice provided is reasonable in relation to the recognizance, and it is therefore admissible as a certified copy of the original under s.24 of the CEA.

iv. Admissibility at Common Law

[37] The Crown initially sought to rely on the CEA as the basis for admitting the documents in issue. I invited the parties to make submissions on whether the documents were also, or in the alternative, admissible at common law. I have found that the certified copy of the recognizance is admissible under the CEA but the original information is not because the notice was deficient. In the event that I am mistaken about the former, I will address the issue of whether both documents are admissible at common law.

[38] The CEA is not an exclusive code with respect to proof of documents. Section 36 of the CEA provides that Part I of that Act, which includes ss. 23 and 28, is in addition to, and not in derogation of, any powers to prove documents "existing at law". This includes the power to prove documents at common law: R. v. Tatomir (1989), 51 C.C.C. (3d) 321 (Alta. C.A.), at 327, leave to appeal to the Supreme Court of Canada refused February 15, 1990 [(1990), 53 C.C.C. (3d) vii (S.C.C.)].

[39] Documentary hearsay may also be admissible under the R. v. Khan (S.C.C.) exception to the hearsay rule which requires that the reasonable necessity and threshold reliability of the proposed evidence be established. A "public document" is also admissible at common law: R. v. C. (W.B.), [2000] O.J. No. 397 (Ont. C.A.). The principles of necessity and reliability also underlie the public document exception.

[40] The public documents exception to the hearsay rule permits into evidence statements contained in public documents for the truth of their contents: R. v. Dykstra, [2008] O.J. No. 2745 (Ont. S.C.J.) at para. 8. The rationale is that public officials in the course of their duties will make accurate and reliable statements, and that it may be inconvenient to require them to be present in court for their proof: R. v. P. (A.) (1996), 109 C.C.C. (3d) 385 (Ont. C.A.), at 389-390.

[41] To be clear, an original document may be admissible without any reference to the CEA if it qualifies as a public document. If the only version sought to be tendered is a copy then it must be tendered under the authority of the CEA, including the notice provisions therein. The Court of Appeal described this scenario in P. (A.):

Thus, the central issue on this appeal is whether the information and the probation order were admissible under s. 24(a) of the CEA as certified copies of an "official or public document." Section 24(a) allows for the admission of copies of official or public documents provided that the "original record could be admitted in evidence." Therefore, if the original information and probation order would have been admissible as public documents at common law, the Crown could properly rely on s. 24(a) to prove the certified copies.

[42] Laskin J.A. described the public document exception as generally dependent upon the following four criteria for admission:

(i) the document must have been made by a public official, that is a person on whom a duty has been imposed by the public;

(ii) the public official must have made the document in the discharge of a public duty or function;

(iii) the document must have been made with the intention that it serve as a permanent record, and

(iv) the document must be available for public inspection.

[43] Applying that test in that case, the Court held that court documents - namely an information and probation order - were admissible under s. 24(a) of the CEA, falling within the common law exception to the rule against hearsay evidence because they would have satisfied the test for admission as public documents if originals and not certified copies were tendered.

[44] In addition to concluding all four criteria were met, Laskin J.A. noted there could be no doubt about the reliability of the certified copies of the information and probation order: they were photocopies of court records that had been endorsed or signed by a Youth Court Judge that were intended as a permanent record of what happened in a public courtroom.

[45] Only the recognizance in this case is a copy. The information the Crown seeks to rely on is an original document. It, therefore, is not necessarily subject to the CEA provisions but is admissible as an original document provided it satisfies the criteria for a public document.

[46] For the reasons given in P. (A.) I find that, subject only to a consideration of trial fairness issues discussed below, the information is admissible under the public document exception to the hearsay rule.

[47] The certified copy of the recognizance is admissible for its truth as a reasonably necessary and reliable document under a Khan analysis.

6. Trial Fairness

[48] The fact that the Crown can fail to comply with the simple notice requirements in s. 28 of the CEA, and still apply at trial to admit the documents at common law may in some cases impact on the fairness of the trial. The court, therefore, still has a discretion to exclude the documentary hearsay evidence as a matter of trial fairness: R. v. Hawkins, [1996] 3 S.C.R. 1043 (S.C.C.), at 1089; R. v. C. (W.B.) (2000), 142 C.C.C. (3d) 490 (Ont. C.A.) at para. 39; 45-48; R. v. Williams, 2004 ONCJ 80, [2004] O.J. No. 2557 (Ont. C.J.) at para. 17.

[49] There are many aspects of a proceeding potentially captured under the umbrella of trial fairness. For example, evidence that is largely irrelevant, unnecessary and highly prejudicial will undermine trial fairness if admitted: R. v. Boswell, 2011 ONCA 283, [2011] O.J. No. 1646 (Ont. C.A.) at para. 11; evidence which is self-incriminatory in nature is said to compromise trial fairness in the 24(2) context: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 (S.C.C.), R. v. Collins, [1987] 1 S.C.R. 265 (S.C.C.) and R. v. Stillman, [1997] 1 S.C.R. 607 (S.C.C.), as will evidence the probative value of which is outweighed by its prejudicial effect on the adjudicative process: R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787 (S.C.C.), at para. 49. Trial fairness can also be undermined by the inappropriate conduct of counsel or interventions by the trial judge.

[50] The failure by the Crown to make adequate disclosure, or a Crown submission at the end of a trial advancing an alternative basis of liability can in certain circumstances compromise trial fairness if it prejudices the accused's principal defences at his trial. There is certainly a potential for that kind of prejudice to be engaged in this instance if the defence was misled into thinking that the Crown would be prosecuting this case on a fundamentally different basis than it has. As I see it, I must be satisfied on a balance of probabilities that this was not the case.

[51] The defence did not call evidence on the issue of prejudice or trial fairness during this motion. When the officer who served the CEA notice testified defence counsel did not put any questions to him about the information contained in the notice. There has been no suggestion that there is any ambiguity about either the date the accused was alleged to have been in breach of his recognizance or the particular condition he is alleged to have breached. There has been no application for relief based on a lack of disclosure and no application for further particulars.

[52] Taking all of those factors into consideration I find that trial fairness concerns do not defeat the admissibility of the documents at common law.

7. Conclusion

[53] I find that the original information is not admissible under the CEA because the notice that was served in relation to it was deficient.

[54] I find, however, that it is admissible at common law as an original public document to prove the hearsay contents contained within it. As such, there is no notice requirement because the document is not being admitted under the authority of the CEA. Any defect in the notice is therefore immaterial and the original information will be admitted as an exhibit at this trial.

[55] I find that the notice was not deficient with respect to the recognizance. The inaccurate date specified in the notice is in reference only to the information. The recognizance is therefore admissible for its truth under s.24(a) of the CEA.

[56] Both documents would in any event also be admissible hearsay documents under the principled approach outlined in Khan.

[57] The defence application to exclude these documents is dismissed.