Court File and Parties

Court File No.: Toronto 08-0293 Date: 2012-03-13 Ontario Court of Justice

In the Matter of: An appeal under s. 116(2)(a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended

Between:

TARION WARRANTY CORPORATION Respondent

— AND —

ALEXANDER BOROS Appellant

Before: Justice D. A. Fairgrieve

Reasons for Judgment released on: March 13, 2012

Counsel:

• Carol Street, for the respondent, Tarion Warranty Corp.
• Simon Van Duffelen, for the appellant, Alexander Boros

On appeal from: The convictions and sentences imposed by Justice of the Peace J. Cottrell on March 21, 2005 at the Provincial Offences Court, 1530 Markham Road, Toronto, Ontario.

FAIRGRIEVE J.:

[1] Introduction

Following an ex parte trial on March 21, 2005, Mr. Boros was convicted of three offences under the Ontario New Home Warranties Plan Act, R.S.O. 1990, c. O.31, as amended ("the Act"), and fined $20,000 on each count. He has appealed against both the convictions that were entered and the sentences that were imposed.

The Grounds of Appeal

[2] Grounds Advanced

The following grounds of appeal, paraphrased somewhat, were advanced by Mr. Van Duffelen in both his written submissions and his oral argument during the hearing of the appeal:

• The justice of the peace lacked jurisdiction to proceed with an ex parte trial in the absence of proof of proper service of the summons;
• The verdicts were unreasonable and unsupported by the evidence;
• The reasons for the convictions given by the justice of the peace were inadequate;
• The justice of the peace entered multiple convictions arising from the same delict, contrary to the principle in R. v. Kienapple, [1975] S.C.R. 729;
• The penalties imposed were harsh and excessive.

[3] Scope of Appeal

For the reasons that follow, I have concluded that it is only necessary to consider the ground of appeal relating to the reasonableness of the verdicts. In my opinion, the justice of the peace at trial erred in law in admitting the documentary evidence on which the findings of guilt were based, and the remainder of the evidence that was properly admitted was not capable of proving the essential elements of any of the offences charged. In those circumstances, the appropriate result is to set aside the convictions and enter acquittals in their place.

The Charges

[4] Three Offences Charged

Mr. Boros was charged in an information with the following three offences allegedly committed during August and September 2004:

Count 1: Constructing a new home situated at 47 Kingsdale Ave., Toronto, without being registered as a builder, as required by s. 6 of the Ontario New Home Warranties Plan Act, an offence contrary to s. 22(1)(b) of the Act;

Count 2: Commencing construction of that new home as a builder without notifying Tarion Warranty Corporation and paying the prescribed fee, as required by s. 12 of the Act, an offence contrary to s. 22(1)(b) of the Act; and

Count 3: Knowingly furnishing false information in an application for enrolment of that new home under the Act by submitting Builder Registration Number 33410 when 759894 Ontario Limited was not its builder, contrary to s. 22(1)(a) of the Act.

The Evidence

[5] Prosecution Witnesses

At the ex parte trial, the prosecution called two witnesses, Barry Attwood, an investigator with the Tarion Warranty Corporation, and Saul Schacht, the principal officer and only shareholder of 759894 Ontario Limited, named as the builder of the new house at 47 Kingsdale Ave., Toronto, in the enrolment application allegedly submitted by the defendant, Mr. Boros, to the Warranty Program. The prosecutor alleged that the defendant himself was the builder of the house in question and that he had used Mr. Schacht's corporate registration number without authorization on the enrolment application.

[6] Evidence of Barry Attwood - Tarion Investigator

Mr. Attwood testified that as an investigator with Tarion Warranty Corporation, his role was to ensure that builders were registered and that the homes they were building were enrolled with the Corporation. He explained that a builder is required to apply for registration before construction commences, and that the new home must be enrolled with the Corporation when a building permit has been issued. The enrolment fee depends on the value of the house; the example given by Mr. Attwood was that enrolling a million dollar house for a 7-year period would cost $835.

[7] Building Permit Application - Exhibit 1

Mr. Attwood testified that he received from the City of Toronto (North York) Building Department a copy of the building permit application purportedly signed on April 8, 2004, by Alex Boros, who in the written declaration on the form stated that he was "the owner's authorized agent." The "project location and description" indicated that the address was 47 Kingsdale Ave., Toronto, with the name "M. Kong" written under "Owner Information"; the work was described as "build new storey house with at grade garage." The applicant, with a legible signature "A. Boros," gave 1923 Avenue Rd., Toronto as his address and various phone and fax numbers. The space in the declaration for the applicant to provide the Builder's Ontario New Home Warranty Registration Number, which was to be filled in if the application was for a new home, was left blank.

[8] Declaration Regarding Ontario New Home Warranties Plan Act

On the second page of the document entitled "Declaration of Applicant for Building Permit Regarding the Ontario New Home Warranties Plan Act, R.S.O. 1990, Chapter O.31, as amended", under Part C that is applicable, it states, "where applicant is building to occupy ("owner") and is acting as the general contractor," the following declaration appears:

I, Alex Boros (applicant) have read and understand the provisions of s. 8(2) of the Ontario Building Code Act, as well as the relevant provisions of the Ontario New Home Warranties Plan Act, on the reverse side of this statement [note: not included in photocopy]. I declare that I am not acting as a "vendor" or "builder", nor am I contracting with a "builder" to construct or manage the construction of this "home". I understand that this home is not eligible for enrolment or coverage under the Ontario New Home Warranties Plan Act and a warranty claim to the Ontario New Home Warranty Program (ONHWP) cannot be made for this home, by me or by any subsequent purchaser of this home.

Signature of Applicant "A Boros" Date: 4/08/04 [sic]

[9] Admissibility of Building Permit Application - Exhibit 1

The 2-page Permit Application and Declaration of Applicant for Building Permit was marked as Exhibit 1. It should be noted that the Exhibit on its face was an uncertified and, to the extent that the reverse of the second page was not included, also an incomplete photocopy of the original document. The form had blanks that were purportedly filled in by the appellant, but also other entries under "For Office Use Only" and a signature of the "Chief Building Official." No questions were raised by either the prosecutor or the Court concerning the admissibility of the copies Mr. Attwood testified he had received.

[10] Building Permit Issuance - Hearsay Issue

After Exhibit 1 had been admitted, the prosecutor asked Mr. Attwood, "Was that building permit subsequently issued?" and the witness replied, "Yes, it was." While perhaps inconsequential in the context of the allegations, there was clearly a hearsay aspect to the investigator's testimony on the point that should have been identified.

[11] Enrolment Form - Exhibit 2

Mr. Attwood was then asked whether he had made any inquiries to determine whether the home had been enrolled with Tarion, to which he answered that he had and that he had received a photocopy of the enrolment form "from our head office at 5160 Yonge Street from the licensing and underwriting people." The photocopied document was admitted and marked as Exhibit 2.

[12] ONHWP Enrolment Form - Exhibit 2 Details

The ONHWP form, entitled Enrolment of Freehold Home, filed as Exhibit 2, was dated August 22, 2004, and purportedly signed by Mr. Boros in two places at the bottom of the form declaring that the information provided was correct and accurate. "Alex Boros" was hand-printed where the form had a blank for "vendor/builder name," along with an accompanying signature, and where the blank said "print builder name (if different from vendor)", what is printed is "759894 Ont. Ltd.," again with the signature of what appears to be "A Boros" and the same phone numbers that were written on Exhibit 1. While part of the contents of the photocopied document are obscured by a "Received August 25, 2004 Warranty Program" label or sticker that was apparently affixed to the document at the time the photocopy was made, the house at 47 Kingsdale Ave. was described as a "Contract Home," with the "yes" box ticked beside the question "Will this home be built on land currently owned by the purchaser?". The "estimated contract/sale price" was stated to be $400,000, and the amount payable to ONHWP was $690, according to the document.

[13] Schacht's Denial of Authorization - Hearsay Stopped

Following the admission of Exhibit 2, the prosecutor asked Mr. Attwood why, if the home had been enrolled by a registered builder, charges had been laid. Mr. Attwood replied by stating that Mr. Schacht had informed Tarion on September 2, 2004, that his company, 759894 Ontario Ltd., was not the builder of the house in question and that Mr. Boros had no authorization to sign on behalf of the company. At that point, the justice of the peace intervened to stop the witness's evidence because, he said, it was "edging" into hearsay. The prosecutor stated that Mr. Schacht would be called to give direct evidence concerning the matters.

[14] Corporation Profile Report - Exhibit 3

A photocopy of the copy of the Corporation Profile Report that had been certified by the Director of the Companies and Personal property Security Branch, Ontario Ministry of Consumer and Business Services (not the certified copy itself) was filed as Exhibit 3. It stated that 759894 Ontario Limited was an active corporation with its registered office address given as Saul Schacht, with an address on Bathurst St. in Toronto. Mr. Schacht was the only person referred to in the Report.

[15] Cheque and Letter - Exhibit 4

After Mr. Attwood gave hearsay evidence that the Warranty Program had received a cheque for the enrolment fee for the house at 47 Kinsdale Ave., the prosecutor referred the Court to Tab 3 of the Book of Documents that she had provided to the justice of the peace at the commencement of the trial and asked the witness where the "original" that she was showing him had come from. Mr. Attwood testified that "this original came from the licensing and underwriting people at the head office at Tarion" and that he obtained "this copy" over the course of his investigation, evidently referring to the same 2-page document that was tendered as Exhibit 4. The actual exhibits admitted at trial, with the court clerk's original signature in blue ink, are part of the appeal file. Exhibit 4 clearly consists of a photocopy of a letter dated September 9, 2004, from the ONHWP Underwriting Manager, addressed to "Alex Boros, 759894 Ontario Limited" at the corporation's Bathurst St. address in Toronto, and on the second page, a photocopy of a cheque, dated "8/22/04", purportedly drawn by Alexander Boros Planning & Design Assoc., signed "Alex Boros", payable to ONHWP in the amount of $690, stating in the lower left corner "re 47 Kingsdale Ave." and a photocopy of a memo from the Royal Bank of Canada branch on which it was drawn stating that the cheque had been dishonoured because of insufficient funds.

[16] Attwood's Testimony on Cheque and Letter

In answer to a series of questions about matters in which Mr. Attwood apparently had no personal involvement, the witness testified, evidently on the basis of reading the contents of Exhibit 4, that the Warranty Program received a cheque that did not clear because of insufficient funds and that a letter was then sent by the Warranty Program to Alex Boros at 759894 Ontario Ltd. because that was the company indicated as the builder of the house on the enrolment form that had been submitted.

[17] Cheque Not Replaced - Hearsay Evidence

The prosecutor then asked Mr. Attwood whether the cheque was ever subsequently replaced by either the company or Mr. Boros or whether the enrolment process was completed by the payment of the fee. The witness replied "No" to both questions, although neither the hearsay character of the evidence nor concern about its admissibility was explicitly acknowledged by the prosecutor or the Court.

[18] Photograph of House - Exhibit 5

Mr. Attwood testified that he attended the home at 47 Kingsdale Ave. on October 4, 2004, and took a photograph that showed the house still under construction, but nearing completion. The photograph of the house was marked as Exhibit 5.

[19] Defendant Not Registered - Computer Search

The prosecutor then asked the investigator whether the defendant was registered with the Warranty Program or Tarion. Mr. Attwood replied that he was not, explaining that he had checked their computer system and could not find Mr. Boros among the registered builders. He also testified, in answer to the prosecutor's question, that the house at 47 Kingsdale Ave. had not been enrolled with the Warranty Program, presumably based again on the results of his own computer search of the Program's records.

[20] Improper Opinion Question

The prosecutor's final question of the witness, while perhaps superfluous, was also quite improper: "Now after speaking with Mr. Schacht, the principal of the numbered company, were you satisfied that Mr. Boros had provided you [sic] with incorrect information sufficient to lay the charge before the Court?" Not surprisingly, Mr. Attwood answered in the affirmative, but his opinion concerning the sufficiency of the grounds for his belief seemed neither relevant nor material at trial.

[21] Evidence of Saul Schacht

The second prosecution witness, Saul Schacht, testified that he was the principal officer and only shareholder of 759894 Ontario Limited. Mr. Schacht testified that while he was associated with Mr. Boros in 2003 in connection with a completely different townhouse project in which Mr. Boros had acted as architect and assisted with respect to the City approval process and project management, he had had no continuing business relationship with Mr. Boros since then. His company, he testified, had had no involvement in the construction of the house located at 47 Kingsdale Ave. Mr. Schacht testified that he never authorized Mr. Boros to use his company's registration number, and that he only became aware that the enrolment for the house at that location had been wrongly processed under his builder registration number when he received the letter from the Warranty Program, a copy of which was part of Exhibit 4. Mr. Schacht made no payment in relation to enrolling that house in the Warranty Program because, he said, the house had nothing to do with him or his business.

The Reasons for Judgment Given by the Justice of the Peace

[22] Service of Summons - Jurisdictional Question

Following the submissions of the prosecutor, the justice of the peace himself raised for the first time the question of the service of the summons on the appellant, observing as follows:

I'm sorry, I have only one question and that is in regards to Mr. Alexander Boros of 1 Caldow Road, Toronto, Ontario. On the charge [sic] before this Court, he was summoned to appear on the 15th day of November, 2004 at 9:00 a.m., in this courtroom, E4 court. And Mr. Attwood has said that he could not conveniently find the defendant and left the summons to him or her at his or her last known and usual place of abode, that being with Cheri Boros, the wife of the accused in this matter.

In answer to the justice's further question, the prosecutor stated that to the best of her knowledge neither Mr. Boros nor counsel on his behalf had ever contacted Tarion in relation to the matter. The justice of the peace then observed that the defendant had never appeared in court and that the case had been adjourned on a couple of occasions for an ex parte hearing.

[23] Jurisdiction to Proceed Ex Parte

Given Mr. Van Duffelen's complaint that the Court lacked jurisdiction to proceed with an ex parte trial because the trial transcript did not disclose any testimony by Mr. Attwood concerning the service of the summons as cited by the Court, I would merely point out that it seems apparent that the justice of the peace was simply reading the affidavit of service that was part of the summons. Such written proof of service is sufficient under s. 26(6) of the P.O.A. Although the summons and affidavit of service were not included in the appeal file as they should have been, and although it would have been preferable to have addressed the jurisdictional issue at the commencement of the trial rather than at its conclusion, in the absence of any assertion by the appellant that he did not receive the summons or that he was not duly notified of the proceedings, I am not satisfied that there is any reason to doubt that the requirements of s. 54(1), allowing the trial to proceed in the absence of the defendant, had been met.

[24] Trial Court's Review of Evidence

With respect to the merits of the case, the justice of the peace then proceeded to review the evidence of both witnesses in considerable detail, as well as the contents of Exhibits 1 and 2, from which he drew the inference that Alex Boros had made both the application for a building permit, describing himself as the owner's authorized agent, and that he had filled out the form for the enrolment of the home in which it was falsely stated that the builder was 759894 Ontario Ltd.

[25] Trial Court's Treatment of Exhibit 4

The justice of the peace then said the following with respect to Exhibit 4:

Now we then come to the question of the cheque that was tendered, although the cheque is not a – is tendered as a non-certified copy, the Court is content with that under the situation here today. I'm more concerned with the letter that was sent on September the 9th, 2004, to one Alex Boros, 759894 Ontario Limited, giving the address on this letter from the Ontario New Home Warranty Program as 1643 Bathurst Street, Suite 104, Toronto.

'Dear Alex Boros,' and it's referring to the address of 47 Kingsdale Avenue, Toronto, and it is a cheque dated August 22, 2004, in the amount of $690 having been returned to the numbered corporation for insufficient funds. And as I say that was sent to Alex Boros at the address on Bathurst Street and that in fact being Mr. Schacht's address. The Court is content that was properly and duly done by the Tarion or Ontario New Home people.

It is apparent, then, that the Court used Exhibit 4 to prove the truth of its contents, not merely as evidence to account for Mr. Schacht's coming forward with his information concerning the matter.

[26] Trial Court's Conclusion on Builder Status

The justice of the peace then stated his conclusion that the appellant was the builder of the house in question in the following terms:

This Court is of the opinion, after listening carefully to each and every piece of the evidence, that in fact Mr. Boros was well and truly aware of what he was doing in each of these matters and that he did construct a new home and thereby he did act as a builder of a new home, situated at 47 Kingsdale Avenue in the City of Toronto…

[27] Specific Findings on Each Count

With respect to the individual counts, the justice of the peace made the following specific findings of fact. With respect to Count 1, he found that Mr. Boros was the builder of the house without being registered by the Registrar, and that "no follow-up was ever done in order for him to register properly with the appropriate cheque and so on," so that a finding of guilt should be made. With respect to Count 2, the justice of the peace found that the appellant commenced construction of the house without notifying the Corporation and paying the prescribed fee. Finally, in relation to Count 3, the justice at trial found that the appellant knowingly furnished false information in the enrolment form for the new house in question by providing the builder registration number for 759894 Ontario Limited, when that corporation was not the builder of the house.

[28] Sentencing

So far as sentence was concerned, despite the prosecutor's submission that the maximum fine of $25,000 should be imposed on each of the three counts notwithstanding the absence of any prior offences by the appellant under the legislation, the Court was persuaded to impose a fine of $20,000 on each count. The justice of the peace ordered that the total fine of $60,000 should be payable in 15 days, in accordance with s. 66(1) of the Provincial Offences Act.

The Merits of the Appeal

[29] Evidentiary Errors

As I have already indicated, I am satisfied that the justice of the peace at trial failed to apply the law of evidence concerning the exclusion of hearsay evidence and the rules which govern the admission of documentary evidence. The result of those errors was, in the circumstances of this case, that the justice of the peace made findings of guilt that could not be supported by the evidence that was properly admitted.

[30] Ex Parte Trial Standards

In R. v. Bandito Video Ltd., 52 C.R. (3d) 293 at p. 298-99 (Ont. Prov. Ct.), Megginson Prov. J. stated the following:

… a trial ex parte … is still a trial, with all its attendant burden of proof, formality and evidentiary requirements. The defendant, by his non-appearance, forfeits only his right to be present, to hear and test by cross-examination the evidence of the prosecution witnesses, to make full answer and defence (if so advised) by adducing evidence of his own, and to assist the court by the advancement of argument on matters of fact and law relevant to the charge; he does not forfeit his right to be convicted only upon the basis of legally admissible evidence which establishes, beyond reasonable doubt, all essential ingredients of the offence charged as properly defined in law. As high as the duty of care and attention is upon the presiding judicial officer in the ordinary kind of contested trial, I venture to suggest that it is (if anything) even higher in the case of a trial ex parte…

… My search [of the law] … has disclosed no cases or authoritative commentary standing for any different (or more lenient or relaxed) view of the nature of a trial ex parte. I venture to suggest that that such more lenient or relaxed view would be inconsistent with the holding of appellate courts … that the trial ex parte provisions do contravene s. 7 or s. 11(d) of the Charter, which guarantee, respectively the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice, and the right of a person charged with an offence to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.

More recently, in R. v. Jenkins, 2010 ONCA 278, 253 C.C.C. (3d) 269, a five-judge panel of the Court of Appeal had occasion to re-examine the constitutionality of ex parte proceedings under the Provincial Offences Act. At para. 27, Doherty J.A., for the Court, stated the following:

[Under s. 54(1)(a) of the P.O.A.], [a] defendant who does not appear for his trial is still presumed innocent. In the ex parte proceedings, the prosecutor must prove the defendant's guilt beyond a reasonable doubt according to the generally applicable evidentiary and procedural rules.

[31] Documentary Evidence Requirements

The prosecutor at trial here attempted to prove the case almost entirely by the filing of documentary evidence. It was clearly necessary, then, in order for the documentary evidence submitted by the prosecutor to be admitted at trial, to satisfy the requirements imposed by either the common law or by statute governing the admission of such evidence.

[32] Secondary Role of Viva Voce Evidence

The viva voce testimony given by the two witnesses called as prosecution witnesses played quite a secondary role in the proof of the alleged offences. Mr. Schacht's evidence was limited to establishing that his numbered company was not the builder of the house at 47 Kingsdale Ave., contradicting the statements in the ONHWP Enrolment Application (Exhibit 2), as well as providing evidence that Mr. Boros had had the opportunity to acquire access to the company's builder registration number as a result of the appellant's prior involvement in Mr. Schacht's townhouse project in 2003. Otherwise, however, Mr. Schacht's testimony did not assist with respect to the essential elements of the offences required to be proved, since the witness had no firsthand knowledge concerning the role, if any, played by Mr. Boros with respect to building the house in question, nor the appellant's alleged dealings with the Warranty Program referred to in the letter (Exhibit 4) that Mr. Schacht testified he simply received in the mail.

[33] Attwood's Limited Relevance

Similarly, the evidence of the Tarion investigator, Mr. Attwood, largely concerned his collection of the copies of documents that the prosecutor filed as exhibits, but was not directly relevant to the proof of any of the necessary facts. His testimony that he attended the address at 47 Kingsdale Ave. on October 4, 2004, and that he took the photograph that showed the house in the latter stages of construction was certainly admissible to prove that a new house was being built at that location, but Mr. Attwood did not testify as to any observations he himself made that connected Mr. Boros with the construction of that house. Indeed, no prosecution witness who made any such observations, whether the alleged owner or sub-contractors or other workers, was called to testify.

[34] Reliance on Documentary Evidence

Rather, the prosecutor at trial attempted to prove that Mr. Boros was the builder of the house, and that he had made the false statement in the Warranty Program enrolment application, simply by filing the documentary exhibits and asking that the relevant inferences be drawn from their contents. With respect to proving that Mr. Boros was not a registered builder and had not paid any prescribed fee for the house, the prosecution relied simply on the hearsay evidence given by Mr. Attwood as to a computer search the witness testified he had conducted.

[35] Best Evidence Rule

In my view, the documents were admissible only if they met the so-called best evidence rule. The rule was recognized by the Ontario Court of Appeal in R. v. Swartz et al., 37 C.C.C. (2d) 409 at 410-11, where Jessup J.A. stated:

Of the "best evidence" rule Halsbury states in 17 Hals., 4th ed., pp. 8-9, para. 8:

That evidence should be the best that the nature of the case will allow is, besides being a matter of obvious prudence, a principle with a considerable pedigree. However, any strict interpretation of this principle has long been obsolete, and the rule is now only of importance in regard to the primary evidence of private documents. The logic of requiring the production of an original document where it is available rather than relying on possibly unsatisfactory copies, or the recollection of witnesses, is clear, although modern techniques makes objections to the first alternative less strong.

The rule itself, in the relatively modern form, did not absolutely exclude secondary evidence. It is stated by Lord Esher, M.R., in Lucas v. Williams & Sons, [1892] 2 Q.B. 113 at p. 116:

"Primary" and "secondary" evidence mean this: primary evidence is evidence which the law requires to be given first; secondary evidence is evidence which may be given in the absence of the better evidence which the law requires to be given first, when a proper explanation is given of the absence of that better evidence.

Jessup J.A. went on, at p. 411, to refer as well to the statement of Lord Denning in Garton v. Hunter, [1969] 2 Q.B. 37 at p. 44, that the only remaining instance of the best evidence rule that he knew was "that if an original document is available in your hands, you must produce it. You cannot give secondary evidence by producing a copy." The rule applies in both criminal and civil proceedings, and it was not suggested that prosecutions under the Provincial Offences Act, particularly when they proceed ex parte, should be excluded from its application.

[36] Documentary Originals Rule

In Hill, Tanovich and Strezos (eds.), McWilliams' Canadian Criminal Evidence (4th ed.), at c. 21, p. 21-9 (insert dated March 2008), under the heading "Documentary Originals Rule," the authors state that the rule was originally viewed as a fundamental rule of admissibility for all evidence, but as the law developed in both England and Canada,

… [a] best evidence theory for all evidence did not prevail and was used only in the context of documentary evidence. As the English Court of Appeal held in the oft-cited case of [R v. Wayte, (1983) 76 Cr. App. R. 110 (C.A.)]:

It is now well established that any application of the best evidence rule is confined to cases in which it can be shown that the party has the original and could produce it but does not.

The learned authors go on to observe, at p. 21-10, that even if the documentary originals rule may not always be applied strictly, such that copies or secondary evidence may be admitted where the original does not exist or is very difficult to produce, "… [t]he tendering party must provide an explanation for why the original is not available."

[37] Secondary Evidence Exceptions

The same evidentiary rule is stated in similar terms by Justice David Watt in Watt's Manual of Criminal Evidence 2011, at p. 95:

In its original form, the best evidence rule required the best proof that the nature of the thing would afford. What remains of it, in essence, is a requirement that, to prove the contents of a document, the original should be tendered, if available. A copy will not suffice. As primary evidence, the best evidence is required. It includes duplicate originals. When the original is unavailable, secondary evidence may be admitted. …

Secondary evidence is admissible by exception where:

i. the original document existed, but was later lost or destroyed;

ii. statutory exceptions permit its introduction, as for example, [Canada Evidence Act] ss. 29 and 30; or

iii. the original is in the possession of a third party from whom production cannot be compelled.

[38] Failure to Produce Originals

In this case, there was no attempt made by the prosecutor to account for the failure to produce the original documents that, it was alleging, Mr. Boros had submitted to the City of Toronto Building Department and to the New Home Warranties Program itself. There was no evidence that there would have been any difficulty in obtaining the originals; to the contrary, the reasonable inference would seem to be that Mr. Attwood could have easily obtained them simply by asking for them. There was no reason to think that the original documents were in any way unavailable. Similarly, no evidence was called with respect to authenticating the copies that were filed.

[39] Trial Court's Oversight

In fairness to the justice of the peace at trial, since he had been provided very helpfully by the prosecutor with a book of documents for his use during the trial, which evidently included copies of the papers tendered as exhibits, he may very well never have had occasion to examine the exhibits himself or to observe that they were all clearly copies and not originals. In such circumstances, I have little difficulty understanding how it could have happened that the trial court might have overlooked the application of the documentary originals rule to the evidence. His reference to being "content" with the non-certified copies of the returned cheque and the absence of any explanation by him of the basis for admitting the banking record and the letter sent by an ONHWP employee setting out the chronology relating to the house at 47 Kingsdale Ave. fall, however, into a different category.

[40] Statutory Alternatives

Quite apart from compliance with the common law evidentiary rule, recourse might have been made to a variety of statutory provisions, assuming their requirements were met, that could have justified the admission of copies of the documents that were tendered. The legislative exceptions to the hearsay rule could also have made admissible the hearsay evidence given by Mr. Attwood that should otherwise have been found inadmissible. The Warranty Program investigator testified, for example, that he ascertained from a computer check at Tarion that Mr. Boros was not a registered builder and that he had not paid the prescribed fee in relation to the house built at 47 Kingsdale Ave. Such evidence, it seems to me, is akin to a traffic officer attempting to prove at trial the suspension of a defendant's driver's licence simply by repeating what he said he saw on a police computer screen. That such testimony is properly regarded as inadmissible hearsay and invariably excluded does not appear to be the subject of any controversy. What is admissible for such purposes is a copy of the Ministry record, certified by the Registrar of Motor Vehicles, pursuant to s. 210(7) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, that prosecutors seem able to tender without much difficulty. As it happens, the Ontario New Home Warranties Plan Act has a comparable evidentiary provision set out in s. 21, which reads as follows:

21. The following statements are admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated in them for all purposes in any proceeding or prosecution, without the need for proving the office or signature of the registrar, if the statements purport to be certified by the Registrar:

1. A statement as to the registration or non-registration of any person.

2. A statement as to the filing or non-filing of any document or material required or permitted to be filed with the Corporation.

3. A statement as to any other matter pertaining to registration, non-registration, filing or non-filing of any person.

In this case, no such statements certified by the Registrar were filed, although they could have made proof of the essential elements of the offences charged rather a straightforward affair. In addition, s. 47(2) of the Provincial Offences Act could have been used in conjunction with such a certificate of the content of an official record to permit the use of credible or trustworthy information to prove that the defendant was the person referred to in the certificate.

[41] Ontario Evidence Act Provisions

Similarly, it is to be noted that specific provisions of the Ontario Evidence Act, R.S.O. 1990, c. E.23, could have been relied on by the prosecutor to justify the reception of copies of the various documents. If the photocopied application made to the City of Toronto Building Department (Exhibit 1), or the photocopied Enrolment Application from the ONHWP (Exhibit 2) were characterized as records made in the ordinary course of business that documented the receipt by the relevant office of the application submitted to it, I think they would have been admissible pursuant to s. 35 of the Ontario Evidence Act, at least if there had been compliance with the seven days notice requirement in s. 35(3). Likewise, s. 29 provides for the admission of copies of public or official documents, if certified by the signature of the official with custody of the original. For copies of entries in certain municipal records, s. 31(2) requires an affidavit from a municipal officer attesting to its character and that it is a true copy. Section 33, which governs the admission of copies of banking records, such as the Royal Bank memo explaining the return of the cheque that was part of Exhibit 4, simply requires proof that it was an ordinary business record and that the copy is a true copy thereof. Understandably, perhaps, given that it was an ex parte trial with no challenge to the admission of the documents, the trial record fails to disclose any consideration of the Ontario Evidence Act provisions that were potentially available if their conditions had been met.

[42] Obligation to Ensure Admissible Evidence

While it may appear unduly technical that an appeal should succeed for such reasons, particularly when the allegations were seemingly so straightforward and susceptible to ready proof, I do not think anyone could doubt the accuracy of the following statement by Watt J.A. in R. v. Baldree, 2012 ONCA 138 at para. 93, or question their application to an ex parte trial under the Provincial Offences Act:

I do not contest the obligation of a trial judge in a criminal case to ensure that only relevant, material and admissible evidence makes its way into the trial. Nor do I dispute the self-evident proposition that a trial judge is not entitled to ground his or her findings of fact, including a determination of the ultimate issue of guilt or innocence, on evidence that is irrelevant, immaterial or inadmissible.

[43] Absence of Admissible Evidence

Unfortunately, in my view, since the documents on which the prosecution's case relied were not properly admitted, there was an absence of evidence capable of supporting the convictions. With respect to Counts 1 and 2, there was no direct evidence that the appellant was the builder of the house in question, nor, in the absence of the applications for the building permit or enrolment of the house in the Warranty Program allegedly submitted by the appellant, was there circumstantial evidence from which that necessary factual inference could have been drawn by the trier. Moreover, there was no admissible evidence as to the appellant's non-registration or failure to pay the prescribed fee apart from the hearsay evidence given by Mr. Attwood that should have been excluded. With respect to Count 3, while the oral evidence given by Mr. Schacht certainly supported a finding that his numbered company was not the builder of the house at 47 Kingsdale Ave., in the absence of admissible evidence of what Exhibit 2 was and how it related to any submission to the Warranty Program, there was no evidence that the appellant committed the alleged offence.

[44] Appellate Remedy

Since the Crown did not adduce admissible evidence at trial capable of supporting any of the convictions, the appropriate appellate remedy is to allow the appeal, set aside the convictions and substitute for them the acquittals that the justice of the peace ought to have entered at trial.

Released: March 13, 2012

Signed: "Justice David A. Fairgrieve"