Court File and Parties
Court File No.: Toronto Region Ontario Court of Justice
Between:
Her Majesty the Queen
T. Pittman, for the Crown
— And —
Yasin Mohamed
B. Alvares, for the accused
Heard: September 28, October 11, December 10, 2012
Decision
FELDMAN J.:
Facts and Charges
[1] Yasin Mohamed entered not guilty pleas to two counts of Fail to Comply with Recognizance. The prosecution alleges he was in breach of a term of bail requiring he be under house arrest, as well as being found in possession of alcohol contrary to an additional release undertaking.
[2] The Crown called the evidence of three police officers and produced documentary evidence that included two criminal Informations and a Recognizance of Bail.
Documentary Evidence and Certification
[3] The Information setting out the original charges upon which the defendant was released is a copy of the original certified by signature of the clerk of the court imposed over an embossed seal, as is the Recognizance of Bail. The Information charging the accused with Fail to Comply is similarly certified, although the seal is extremely faint.
[4] The Crown sought to adduce this documentary evidence for the truth of its contents by means of certified copies under signature of the court clerk as provided for in s. 23 of the Canada Evidence Act [hereinafter CEA]. It is of note that under this section exemplified copies of these documents are similarly admissible.
[5] Exemplification in s. 23 is defined in the authorities as "…an official copy of a document made under the seal of a court or public functionary…": R. v. Tatomir, 1989 ABCA 233, [1989] A.J. No. 843 (Alta. C.A.), at p. 4.
Notice Requirements
[6] In relation to the admission of this form of evidence, s. 28 requires 'reasonable notice' of no less than 7 days so that as a basic element of a fair trial a party will know in advance the case he or she has to meet. The notice here was served in a timely manner.
[7] The Notice reads in part that the prosecution intends to adduce into evidence…"certain copies of and/or original…documents…including the following: (1) the original or true certified copy of the original information or indictment; (2) the original or true certified copy of the original recognizance."
[8] The Crown agrees that the Notice is inaccurate in the date it attaches to the relevant Information and is, in addition, insufficiently precise in content. He concedes fairly in the circumstances that he has not met the 'reasonable notice' standard in s. 23 and cannot rely on that provision to facilitate the admission of the documents into evidence.
Crown's Alternative Arguments
[9] The Crown submits there are alternative methods available to permit the admission of these documents. Mr. Pittman says that a signature certified under seal, as is the case in relation to the exhibit documents, is an exemplification that is distinct from a certified copy. He submits that on the authorities a document certified by exemplification is admissible under the common law separate and apart from the provisions of the CEA and without notice, as would also be the result where a hearsay document is produced in the ordinary course by a public official that meets the necessity and reliability requirements in R. v. Khan, [1990] 2 S.C.R. 531. He asks that the exemplified documents in this case be admitted on either of these bases.
[10] Mr. Alvarez, for the accused, submits that in relation to the statutory requirement of notice both certification and exemplification should be treated the same, that the prosecution has not met the necessity element in the principled Khan exception to the hearsay rule and that even in the event this court accepts the Crown position on admissibility, I ought in fairness to exercise my discretion to exclude the evidence on the basis that the prosecution should not benefit from its own laches in failing to produce, as it is capable of doing, the original documents where the notice is deficient.
Are the Documents Admissible without Notice?
[11] There is support for the position of the prosecution in the authorities. In Tatomir, the court treated a certified copy differently than an exemplification and held, given the wording in s. 36 of the CEA, that the latter document was admissible under the common law despite finding "little authority to this effect". Tatomir relied in this regard on commentary in the literature that appeared to make no reference to case law. Leave to appeal was dismissed without reasons at [1989] S.C.C.A. No. 448.
[12] Use of the common law in these circumstances finds support in R. v. W.B.C. (2000), 142 C.C.C. (3d) 490 (Ont. C.A.), where Weiler J.A. referred to Tatomir in holding that s. 36 is in addition to, and not in derogation of any powers to prove documents "existing at law", including the power to prove documents at common law. In effect, she held that the CEA was not an exclusive code with respect to proof of documents. Justice Kenkel came to the same conclusion in R. v. Williams, [2004] ONCJ 80, as did Andre J., as he then was, in R. v. Simeonoff, [2004] O.J. No. 6222 (Ont. C.J.).
[13] Mr. Pittman relies on s. 36 to authorize admission of the exhibits under the common law as exemplifications. In addition, as noted earlier, he says they are admissible as principled exceptions to the hearsay rule: see R. v. Justice Ayodeji-Emeni, unreported, April 2, 2012, OCJ, per Downes J.
[14] However, I am inclined to the view of my colleague, Justice Knazan, who in a thoughtful analysis of the authorities and application of statutory interpretation principles, in R. v. Kishun, unreported, September 27, 2012, OCJ, concluded that both certified copies and exemplifications require notice and that the power to produce in s. 36 does not derogate from this requirement.
[15] In Kishun, the prosecution failed to give notice in relation to certified true copies of two prohibition orders, but relied on Tatomir to have them admitted under the common law as exemplifications.
[16] Justice Knazan rejected that position. He said, at p. 5: "Sections 23 and 28 leave the power of proving by exemplification intact. The power in issue is the power of proving by exemplification, not the power to prove without notice. Sections 23 and 28 add to the power as contemplated in s. 36 by making it a better power because they require that it be used fairly by giving the other side a fair chance to consider the document before it is introduced."
[17] Justice Knazan went on to explain that the interpretation of s. 36 in Tatomir that there is a power to produce without notice that is derogated from by requiring notice "is not consistent with the principle of statutory interpretation that legislatures are rational and competent agents": Sullivan on the Construction of Statutes (5th Edition), Lexis Nexis 2008, p. 309. Rather, he pointed out, logically in my view, that, "parliament would not codify the power to prove by exemplification in s. 23, add a requirement of notice in s. 28 and then remove it with paragraph 36. He referred to Sullivan, also on the same page, that, "an interpretation that would tend to frustrate legislative purpose or thwart the legislative scheme is likely to be labelled absurd."
[18] It is apparent that Justice Knazan, as he noted in his judgment, did not feel bound by Tatomir that relied on little authority for its recognition of a common law ruling regarding exemplifications. As well, he acknowledged the Crown's concession that a refusal to grant leave, as the SCC did in Tatomir, is not a judgement and does not mean approval of the decision of the court below. I respectfully agree with his analysis and conclusions.
[19] In addition, I am of the view that the prosecution cannot rely on the principled exception to the hearsay rule to have the documents produced. While they may be reliable, they cannot be considered necessary. It has always been open to the Crown, in these unusual circumstances, to produce the original documents. This it has chosen not to do.
[20] I would not permit the admission of the exhibits on the bases advocated by the prosecution.
Released: January 28, 2013
Signed: "Justice L. Feldman"