Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— And —
Unaish Ramrattan and David Rennie
Before: Justice Sandra Bacchus
Written submissions filed: May 20 and May 29, 2015
Oral submissions: June 6, 2015
(Summary of Oral Reasons delivered September 2, 2015)
Ruling On the Admissibility of Documents
Counsel:
- C. Boyd and A. Hannah-Suarez for the Crown
- A. Chaisson for the defendant U. Ramrattan
- J. Khan for the defendant D. Rennie
Introduction
[1] The Salvation Army is a Christian denominational church and international charitable organization. In southern Ontario, the Salvation Army is comprised of various ministries which include food banks, charity shops, and shelters.
[2] Railside Food and Toy Distribution Centre ("Railside"), is a Salvation Army ministry which operates as both a storage facility and distribution centre.
[3] The Railside facility is responsible for not only receiving, but also ensuring that products such as food, clothing, personal care items, some household furnishings, gift cards, and toys donated to the Salvation Army, are distributed to food banks, shelters and sometimes other forms of charity as appropriate.
[4] Food donations received at Railside include frozen foods and other perishable items which have best before dates and expiry dates, that guide when, how, and to whom, they may be donated.
[5] Donated items received at Railside are offloaded by both Railside staff and volunteers and repackaged on skids for distribution. Donated items may be picked up by Railside drivers or dropped off by drivers from the donor company or drivers contracted by third party companies. In addition, Railside drivers are involved in the transport of donated goods from the Railside facility to the donor site.
Part 1 – The Nature of Railside Documents and How They Are Kept
A. Onsite at Railside
[6] As a result of the distribution focus of Railside, shipping and receiving is central to its activity. Evidence has been lead in the trial proper from David Fillier, the truck driver supervisor, Jonathan Fillier a truck driver for Railside and supervisor for the Toy Mountain drive volunteers, Walter Woods, Railside's receiver, Nick Vlahos a truck driver at Railside, and Don Butt, Procurement Director for Railside, regarding the nature of the documents used and records kept that track the movement of products in and out of Railside.
[7] The tracking of products shipped and received by Railside is reflected in a number of types of documents: waybills, bills of lading and manifests come record the date of delivery, type of product and number of skids. These documents come in triplicate and ideally should be signed by the donor as shipper and Railside as the receiver.
[8] There is no distinction between the bills of lading, way bill and manifest in terms of information recorded. For ease of reference I will refer to this form of shipping and receiving document as a manifest.
[9] The Driver's Log is created by the Railside driver as a daily record of the address and time of each pickup, and the number of skids and their at the time of the pickup. When Railside drivers deliver products to ministries, generally speaking the only record of the delivery is the driver's logs.
[10] When picking up from donors, the Railside driver will receive some form of a document such as a manifest or an invoice from the shipper, stating what was being picked up.
[11] The Railside driver is expected to inventory the load and alert the donor at the time of loading the pickup as to any discrepancy between the manifest and the product loaded. The discrepancy would be noted on the manifest and signed by the Railside driver on site at the donor's yard.
[12] When donations are dropped off at Railside by external drivers, a manifest and possibly an invoice may be provided to the Railside receiver by the delivering driver. The receiver at Railside will count the skids before signing off on the document confirming delivery.
[13] However, manifests are only used by Railside drivers for donations being delivered by them or picked up beyond 100km of the facility. In that circumstance, the white copy of the manifest is retained at Railside as an original after the shipper has signed it, while the pink and yellow copies go with the driver; the pink copy is for the driver's record and yellow copy is to be left with whoever is receiving the product.
[14] With respect to toy donations, receipts are filled out prior to the pickup of the toys indicating the address of the pickup. Drivers have the donors sign these receipts and a copy is given to David Fillier. If the driver is picking up from a Toy Mountain bin in a mall, the driver's log is used as a record of the pickup and no other paper work is generated. When the toys are sent out to the ministries a separate bill is created itemizing the toys, the ages and gender. The recipient will sign for the toys and the Railside driver keeps a copy to be returned to David Fillier.
[15] In all instances, pickups by Railside drivers, deliveries by Railside drivers, or product received at the Railside facility, carbon copies of the manifest and driver's logs are retained and placed in a tray for David Fillier who reviews that the invoice matches the manifest.
[16] Jonathan Fillier testified that the exception to this general rule was in relation to Northern Sales Group (NSG) paperwork which he testified that David Rennie instructed should either be given to Mr. Rennie or destroyed.
[17] David Fillier testified that every two weeks he provided the drivers' logs and manifest that he received to Donald Butt who created a monthly inventory record. The Driver's Logs would be returned to David Fillier, while Mr. Butt retained the rest of the documentation.
[18] Mr. Butt testified that as the Procurement Director his responsibilities include maintaining a donor list, public relations with the donors, and overseeing the logistics of obtaining and distributing donations. Mr. Butt's oversight generally extends to all forms of donations at Railside including the receipt of donated gift cards which he kept in his office.
[19] Mr. Butt testified that he keeps records of his email communications with donors, including hard copies of emails, as well as other pertinent shipping and receiving documentation in his own filing system as a way of keeping track. In addition, Mr. Butt testified that he would gather pertinent shipping and receiving documents from David Fillier so that he could ensure accuracy in the monthly inventory spreadsheets that he created.
[20] Mr. Butt testified that as part of his record keeping he sorted the paper work according to companies and bills of lading/manifests and placed them into a monthly binder as well as sorting the Driver's Logs into monthly binders.
[21] In addition to the inventory kept by Mr. Butt, Jonathan Fillier testified that he conducted a monthly inventory of the Railside warehouse based on the different categories of goods. Mr. Fillier testified that he would use scrap paper to do the first count and then enter it into the computer at Railside.
[22] Railside is responsible for providing tax receipts referred to as Gift in Kind Receipts (GIK) and letters of acknowledgment to donors. Mr. Butt testified that it was his responsibility to coordinate these receipts for the donors. Specifically, Mr. Butt testified that when he would receive a request from a donor for a tax receipt, he would then request that the donor provide him with an invoice via email or fax. Mr. Butt would then pass on the documentation to Mr. Rennie, with a signed acknowledgment that Railside received the products set-out therein. Mr. Rennie would then submit the request to the Divisional Headquarters of the Salvation Army, and the tax receipt would issue from there.
[23] GIK receipts have sequential registration numbers and contain the business number associated with the ministry that received the donation, as well as the date that the receipt was issued. The official receipts are sent to the donor and a copy is kept by the Salvation Army. A copy of the receipt and associated documentation are kept in storage at Divisional Headquarters. The tax receipt is relied upon for tax purposes by both the Salvation Army and the donors themselves.
B. How Railside Documents Are Kept Corporately
[24] Railside is required to account to its Divisional Headquarters through the Regional Accounting Centre (RAC) regarding its expenditures and payment of invoices. Carolyn Howells is responsible for managing the budgets of each ministry unit which she scrutinizes on behalf of the Divisional Finance Board.
[25] RAC is the bookkeeping centre for a large number of Salvation Army ministries. RAC's role is to ensure that accounting processes are being followed by the respective ministry. In addition to looking for general coding errors, RAC ensures invoices are properly approved and in line with the financial manual. RAC also produces cheques to pay out invoices, performs bank reconciliation, produces charity reports, and other analysis work.
[26] April Hseuh testified that she worked at the Salvation Army from 2007 to 2014 as the assistant to the director of accounting operations and later in her term as director. Ms. Hseuh testified that invoices come from vendors seeking payment or from the ministry itself through the executive director. Invoices are stamped for coding and approved with the initials of the executive director and RAC. Ms. Hseuh testified that the invoice stamp used by the finance department of RAC is part of its internal control mechanism.
[27] When an invoice is received at RAC, department staff will look for the correct billing information and codes insure that the invoice does not exceed the approved spending limit. If the amount exceeds the limit the invoice would be sent to the Divisional headquarters for review. After the paper copy of the invoice is processed it is then sent for digital scanning.
[28] The Salvation Army uses two electronic databases to store information. ACI is described as a secure electronic database accessed by an individualized username and password. ACI stores electronic copies of scanned paper documents. Among other things, any invoice and attached documentation processed by RAC is stored on the database. When items are printed off from ACI, they have a unique identifier number which shows their source.
[29] SHELBY is an accounting program and database used by the Salvation Army to store records in relation to accounts payable and receivable which are searchable by vendor. MGS Howell testified that every ministry unit in Canada uses Shelby.
[30] As with ACI, access to SHELBY is via a unique username and password. Employee access to these systems is limited to inquiry rights; that is, the documents can be read but not altered in any way. According to the evidence of the auditors Brenda Young and Bruce Dewesbury, the only way to change data in SHELBY is by creating a separate entry; the original information will always remain in its unaltered form.
[31] Items such as employee visa statements and receipts are retained in order to document and reconcile the expenses charged to the Visa corporate card. Once the Visa bill is paid, the Regional Accounting Centre files the Visa statements and supporting documentation on a monthly basis and keeps them in a locked room as a permanent record. The expense summary that is filled out and attached simply sets out the spending category for each expense that was billed to the card.
[32] Don Butt testified that he had his own corporate Visa. He testified that he would save the receipt for any expenses that he generated and reconcile them with the Visa bill at the end of the month. Once he received the Visa bill, he would give it to Mr. Rennie to approve.
C. The Audits and Access to Documents
[33] Brenda Young and Bruce Dewsbury are auditors in the full-time employment of the Salvation Army. Ms. Young qualified as a general fraud examiner while Mr. Dewsbury is a Certified General Accountant.
[34] Ms. Young and Mr. Dewesbury work under the supervision of Astra Williamson, the Director of Audit for the Salvation Army. It is the audit department's responsibility to routinely conduct audits at various Salvation Army ministries. Ms. Young and Mr. Dewesbury are authorized in their role as auditors to collect and review documents, conduct interviews and generally assess operations at various ministries.
[35] In May 2012, Ms. Young and Mr. Dewsbury were tasked with conducting a routine audit at Railside and were given access to the Railside facility, its employees, and documents stored therein.
[36] The process of the audit involved meeting with David Rennie, the facility's executive director at the time, and reviewing the record-keeping practices of the facility in relation to all operational areas including health and safety, human resources and shipping and receiving. The auditors also pulled financial statements pertaining to Railside from the SHELBY database, was well as samples of expenses to review. The initial audit identified some areas of concern at Railside but no evidence of fraud.
[37] At the conclusion of this initial audit, Mr. Rennie was provided with a draft of the audit report to allow him to include his comments and answers to some of the concerns raised.
[38] On July 31, 2012, Don Butt came forward to the auditors and raised concerns about fraudulent activity taking place at Railside. Mr. Butt identified Tony Ramrattan, a wholesaler who was engaged in a trading relationship with Railside, and Mr. Rennie as parties to a fraud, allegedly perpetrated under the guise of a trading relationship, but for personal profit.
[39] As a result of this information, Mr. Young and Ms. Dewsbury were authorized by the Salvation Army on August 24, 2012, to return to Railside and conduct a further audit with an expanded mandate to investigate the alleged fraud. This second audit included a more detailed review of shipping and receiving paperwork and record-keeping. A significant volume of documentation was collected by the auditors and detailed interviews were conducted with warehouse employees.
[40] Documents such as Don Butt's vendor files were obtained from the filing cabinet in Don Butt's office by the auditors as well as the Gift in Kind receipts. The files contained emails, invoices and other documents retained by Mr. Butt to document donations from various donors, including a description of the products, the movement of the products, and email chains pertaining to those donations.
[41] Visa statements were obtained by the auditors from the RAC system. Ms. Young testified that they were accessed by them in read only format.
[42] Andrew Carr works as the manager of Collaboration and Telephony for the Salvation Army and oversees the email back up system for Railside; Railside emails are backed up monthly.
[43] In September 2012, Mr. Carr, upon request of the auditors, provided them with access to David Rennie and Don Butt's emails. In July 2013, the auditors were provided with emails of David Rennie and Don Butt for the time frame May 2010 to December 2012, with the limitations set out in exhibit 84 with respect to the back up and archiving methods of the server. Exhibit 61 is a disc containing David Rennie's emails; item H is a disc containing Mr. Butt's emails.
[44] Following the further audit/investigation conducted by the auditors in August and September 2012, the police were contacted by the Salvation Army and charges were laid against Mr. Rennie and Mr. Ramrattan.
[45] The police executed search warrants at the following locations: Salvation Army Railside; Cantrina Warehouse a facility where Mr. Ramrattan stored his product; Mr. Ramrattan's office and warehouse facility at 733 Garyray Drive; Mr. Ramrattan's home at 2 Grigglestone Lane, and Mr. Rennie's home. The police also obtained production records.
[46] Thousands of documents were amassed by the police in relation to the audits and the police investigation.
[47] Ms. Young and Mr. Dewsbury organized the documents obtained through the audit and the documents seized by the police into a series of binders. Each binder is lettered in a manner that abbreviates the nature of the documents within and/or identifies where the documents were located. For example: P for documents seized by the police, RS for Railside documents, M referring to Manifests from Railside, DS to Driver's Schedules from Railside, and T referring to the GIK or tax receipts issues by the Salvation Army. The documents within each binder are paginated and have been numbered sequentially.
[48] Other items obtained and/or reviewed by the auditors included: copies of Don Butt's vendor files and workplace email account, expense reports, and shipping and receiving documentation from other companies.
[49] In an effort to tally the total loss to the Salvation Army from the alleged scheme, Ms. Young and Mr. Dewesbury collated and categorized the documents they obtained and relied upon in relation to each of their audits, and the documents obtained by the police, in an excel spreadsheet which has been labelled the "Ins and Outs" table.
[50] The auditors also pulled together hard copies of certain documents in relation to particular products and transactions, as purported examples of the fraudulent trading.
[51] A number of documents reviewed by the auditors have already been admitted in the trial proper.
Part II: The Documents at Issue on This Voir Dire
The following table lists documents presently at issue on this voir dire:
| Item # | Description |
|---|---|
| D | Cantrina Invoices |
| E | Cantrina Customer Open Balance Sheets re Merchant King |
| F | Cantrina Inventory Summaries |
| G | Email from Tony Ramrattan to Cantrina re: release of meat product |
| H | CD-Don Butt's emails |
| I | CD - Don Butt's Files |
| K | CD - Drivers Logs & DB Visa |
| M | Kraft-Peek Frean Cookies package |
| N | Reckitt Benckiser Package |
| L | Gift in Kind Files |
| P1 | Binder: Drivers Schedules P. 1-399 |
| P2 | Binder: Driver's Schedules P. 400-925 |
| P3 | Binder: Driver's Schedules P. 926-1394 |
| Q1 | Binder: Manifest P. 1-727 |
| Q2 | Binder: Manifest P. 728-1176 |
| Q3 | Binder: Manifest P. 1177-1581 |
| R1 | Binder: Selected Auditor Materials B & C's |
| R2 | Binder: Selected Auditor Materials DB |
| R3 | Binder: Selected Auditor Materials DS, M, O |
| R4 | Binder: Selected Auditor Materials P, RS, T |
| S | CD: Ins and out - Excel spreadsheet |
| T | Ins and Out vendor List |
| U | Forklift Package |
| V | Trading Package |
| W | Sun Product Package |
| X | Smuckers Package |
| Y | Unilever Package |
| Z | J. BROOKE expired donation agreement |
[52] The contents of the R series binders were described by the auditors as follows: R1, contained emails from either Don Butt or David Rennie printed by the auditors from the Salvation Army system. Each document identifies which auditor printed it.
[53] R1, Tab B contains invoices printed from ACI by Brenda Young with their attachments; Tab C, specifically C62 to C208, are all Duncan Transport invoices which had been faxed to Railside and which the auditors accessed by printing them from the RAC system. This tab also contains emails from David Rennie and manifests from Northern Sales Group which were obtained from a folder found in David Rennie's office. Ms. Young testified that at the time this binder was compiled no documents had been received as yet from the police.
[54] In respect of binder R2, Ms. Young testified that these documents came from Don Butt's vendor files from his office at Railside. In respect of items R3, the documents are categorized as, "M" for manifests and "DS" for Driver's Schedules. Both of these sets of documents came from David Fillier at Railside. "O" is for documents from other sources and includes: Cantrina releases, Bako Transport documents, and photographs. R2 0319, is a document which was obtained from the green folder in David Rennie's office and 0409 are packing slips from this same folder.
[55] The documents found in R4 were identified as emails printed by the auditors from either Don Butt's or David Rennie's email account.
[56] For the purposes of the analysis to follow the documents in question can be divided into four categories. Category one, items D, E, F, G, is comprised of documents obtained by the police as a result of the execution of search warrants and identified by Mr. Gosine. These documents were previously admitted, however a question was raised by Ms. Chaisson as to how they were being admitted. Out of expediency they became a subject of this voir dire.
[57] Category 2, items H, K, L and P to R, all contain documents which derive from the Salvation Army's corporate office, Divisional Headquarters (DHQ) and Regional Accounting Centre (RAC) or from the Railside facility directly.
[58] These Category 2 documents include: Don Butts' Emails, Don Butt's files, drivers logs/schedules and manifests. They include documents which were either accessed directly by the auditors on site at Railside from David Fillier, Don Butt or the green folder in David Rennie's office, or corporately through RAC, Shelby or the email accounts of David Rennie and Don Butt, and documents seized by the police from Cantrina and addresses or businesses associated to Tony Ramrattan.
[58] Category three include documents which the auditors were not able to identify, and which were not identified or directly attributable to any source. These documents are scattered within binder R1 and R3.
[60] Category four include table or packages of documents created by the auditors from the bulk of the documents they were provided and that they viewed. These include the Ins and Outs Tables (item S) and product packages, items M, N and U to Y. Also included in this category is item T, which is a list of vendors compiled by the auditors from the Category 1 and 2 documents and relied upon by them in creating the excel spreadsheet Item S.
[61] As category four documents consist of compilations of documents and records reviewed by the auditors which derive from documents found in either categories 1, 2 and 3, determining the admissibility of the documents which pertain to category 1, 2 and 3 is the rational approach, before moving to the issue of whether these compilations are properly before the court as testimonial aids or summaries.
Part III – Routes to the Admissibility of Business Records
[62] Evidence that an accused was in possession of a document or has acknowledged, adopted or acted on the document, is admissible as direct or circumstantial evidence of the truth of its contents under the admissions exception to the hearsay rule. R. v. Wood (2001) 2001 NSCA 38, 157 C.C.C (3d) 389; Phipson on Evidence (15th ed) (London: Sweet & Maxwell Ltd., 2000).
[63] If a document is not linked to an accused person in the manner described above, its admissibility is governed by the application of an exclusionary hearsay rule. Records may be introduced as business records either via statute (s. 30 (CEA), via the common law business exception, or pursuant to the principled exception to hearsay. Where there are multiple means of introducing a document into evidence, the Crown is not required to choose among them.
R. v. Smith, [2011] A.J. No. 520 (C.A.) at para. 25.
Statute
[64] The statutory business exception to the hearsay rule set out in section 30 (CEA) requires that: a document meet the definition of a "record" as set out in the provision; that the record has been kept in the usual and ordinary course of business; that notice of the intent to tender the record has been served by the party intending on relying on the document.
[65] A "record" is defined as including the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4).
[66] R. v. Cloutier, [1979] 2 S.C.R. 709 at 16; R. v. Grimba and Wilder, [1977] O.J. No. 2606; R. v. M.L., [2002] O.J. No. 1293 (C.A.) at paras. 9-19; Canada (Minister of Citizenship and Immigration) v. Oberlander, [1998] F.C.J. No. 1380 (F.C.T.D.) at para. 25; Canada (Minister of Citizenship and Immigration) v. Skomatchuk, [2006] F.C.J. No. 926 at paras. 12-18.
[67] It has been argued by counsel for Mr. Ramrattan that the statutory preconditions to admissibility necessitate evidence that the document was made in the usual and ordinary course, in addition to a requirement that the document be tendered by the party who authored or received it.
[68] Ms. Chaisson points to a number of examples in this case where even though employees of Railside such as Don Butt and David Fillier were called as witnesses, documents which purport to have been signed by them, acted on by them, authored by them, or in their possession as purported records belonging to Railside, were not identified or introduced by them during their evidence. Instead, these documents were tendered through the auditors.
[69] Ms. Chaisson submits that this approach results in unfairness to the defense as the ability to cross examine these individuals in relation to the authenticity and the accuracy of the documents is curtailed.
[70] In my view given the plain wording of the section, the preconditions for the admissibility of documents in relation to s. 30 (CEA) do not require that they be filed through their makers. To require that the author or recipient tender the documents would undermine the purpose of the rule itself and inhibit the ability to tender evidence in document heavy cases which involve large organizations.
[71] From a policy perspective it would be impossible if not extremely unlikely that an individual employed in a paper work process particularly over a number of years will be able to reliably recall the transaction(s) reflected in the document with any degree of accuracy. The process of creating the business record has been identified by way of this statutory exception as the best safeguard to insure the reliability of the document once that process has credibly and reasonably been identified by someone with knowledge of it.
[72] In considering the rationale behind the hearsay exception afforded to business records by virtue of s. 30 of the CEA the court in Grimba, supra para. 8 observed that it was apparently attributable to: "… the inherent circumstantial guarantee of accuracy which one would find in a business context from records which are relied upon in the day to day affairs of individual businesses and which are subject to frequent testing and cross-checking. Records thus systematically stored, produced and regularly relied upon should, it would appear under s. 30 not be barred from this Court's consideration simply because they contain hearsay and double hearsay.." Also see R v Dunn [2011]O.J.No.2221 para 17, 18.
[73] There are safeguards in place within the provisions of s.30 (CEA) which address the fairness concerns raised by Ms. Chaisson on this application.
[74] For example, pursuant to s. 30(4), a record which is kept in a form that requires an explanation to convey necessary information to the court, may be accompanied by an affidavit or certificate including that information, which is also admissible into evidence.
[75] In addition, s. 30(9), permits that with leave of the court any person who may reasonably be expected to have knowledge of the making or contents of any record produced or received in evidence, be examined or cross-examined by any party to the legal proceeding.
[76] In this case many of the individuals identified as the authors or recipients of the documents, or associates to the businesses which pertain to these documents have testified in the trial proper and/or would be available for cross examination if leave were sought.
[77] Finally, although evidence admitted pursuant to section 30 (CEA) is admitted prima facie for the truth of its content, it is not conclusive proof. It remains opens to the trial judge to find a reasonable doubt based on the evidence.
R. v. Smith, [2011] A.J. No. 520 para. 24.
D. The Common Law Exception
[78] The business record exception at common law requires: that the record be made by a person under a duty to record it, in the ordinary practice of the business; that the record is made contemporaneously with the fact stated therein; and that the record has been made without motive to misrepresent facts.
[79] The common law exception allows for the admission of double hearsay in the form of information given to a record keeper who has no knowledge of its accuracy. Ares v. Venner, [1970] 2 S.C.R. 608; Grimba, supra; R. v. Monkhouse, 1987 ABCA 227, [1987] A.J. No. 1031(C.A.) at pg. 7.
[80] In assessing whether business documents are admissible via a hearsay exception, the applicability of the statutory and common law exceptions should be analyzed before turning to whether evidence is admissible under the principled approach.
Wilcox, supra at paras. 45 – 48.
E. The Principled Exception
[81] The principled exception to the hearsay rule requires that the party seeking admission of the record establish its necessity and threshold reliability.
R. v. Khelawon (2006), 2006 SCC 57, S.C.J. No.57.
[82] When considering the principled exception the admission of the statement must be necessary. However, then necessity criteria is to be applied flexibly. Unavailability in a non hearsay form is not the sole requirement to meet necessity. High circumstantial guarantees of reliability "…may offset [the] fact that only expediency or convenience militate in favour of admitting the evidence." Wilcox supra para. 70–71 citing R. v. B (K.G.), [1993] 1S.C.R. 740 at p. 797.
[83] The necessity threshold may be met may be met where it is highly unlikely because of the passage of time that employees having no connection or association to the accused would be able to recall the specifics of the transaction. R. v. Ogbuehi, [2002] O.J. No. 2233.
[84] In addition to necessity, the party seeking admission of a document pursuant to the principled exception must satisfy the court that the document and circumstances surrounding it are consistent with indicia of threshold reliability. Khelawon, supra.
[85] The question is whether there are any real concerns about the authenticity of the document as a reliable record as a result of the circumstances in which it came about, or whether its accuracy can adequately be tested by way of adequate substitutes for cross examination.
R v Ahmad (2015) O.J. No. 1876
[86] At the stage when considering admissibility, the court is only concerned with threshold reliability. The ultimate reliability of the statement is a matter for the trier of fact.
F. Interplay between the Statutory exception and the Principled exception
[87] Pursuant to (section 30(11) CEA) the admissibility of business records pursuant to the statutory exception must not be in derogation of any existing common rules of evidence. The statutory route is in addition to the already existing common law approaches to the admission of such records and does not change or replace the requirements of those approaches.
[88] Ms. Kahn argues that even if a document meets the preconditions for admissibility pursuant to section 30(CEA), the jurisprudence has developed such that the final question in the analysis under the statutory exception must be a consideration of whether the admission of this record offends the principled approach.
[89] There is guidance on this point in the Court's dicta in Wilcox, supra:
It would take very clear words in the statute to authorize the admission of hearsay evidence that is not necessary and reliable…in my view the principled approach to the admission of hearsay evidence is one of general application. Evidence which would not be admitted under traditional hearsay exceptions may nonetheless be admitted if it meets the criteria of threshold reliability and necessity. Conversely, evidence which would be admissible under a traditional hearsay exception may be excluded if, on examination, the traditional exception does not reflect adequately the requirements of threshold reliability and necessity". R. v. Wilcox 2001 NSCA 45, [2001] N.S. J. no. 85 at para. 58 and 61; also see R. v. Dunn, [2011] O.J. No.2221.
[90] In applying the principles set out in Wilcox supra, I find that where there is doubt as to whether the nature of a document or the manner in which the document is being tendered properly complies with the statutory definition, resort should be made to the principled approach.
[91] For example in Wilcox supra, the crab book which recorded the relevant shipments and payment made by the fishermen was kept by an employee at his own behest and against his employer's instruction. It was therefore not admissible under the common law exception as the employee had no duty to create it and it was questionable whether the book could properly be said to have been kept in the usual and ordinary course of business in the circumstances as it was not required as part of the employee's function.
[92] At paragraph 58 in Wilcox the court held: "where admission under s. 30 is controversial/debatable then the appropriate approach is to best consider admissibility pursuant to the principled approach".
[93] In my view if there is something in the nature of the document, or the document holder's relation to the document or the document holder's relation to the business itself which calls into question the applicability of a precondition to admission of the document pursuant to the CEA, then resort must be made to the principled approach.
[94] I find therefore that the appropriate approach to the analysis is as follows:
Do the documents meet the preconditions set out in CEA? If yes then they are admissible as business records subject to the following;
Is there some question as to whether the preconditions set out in the CEA have been met or are applicable to the circumstances? If yes, then resort should be had to whether the documents are admissible pursuant to the principled approach.
[95] If the documents are not admissible pursuant to the CEA then the question becomes whether they are admissible either through the common law business records exception or the principled exception.
[96] In considering and applying the principled approach in any case, an important distinction must be drawn between threshold reliability at the admissibility stage and determining the ultimate reliability of the record in the trial proper. During the admissibility stage the court is not deciding the ultimate reliability and credibility of the record. R v. Dhaliwal, 2015 ONSC 214, [2015] O.J. no. 109 at para 16; R. v. Denis, [2015] O.J. No. 304 para. 11.
Part IV: Are the Documents in Issue Admissible Via Any of These Routes?
A. Category 1 - Documents Authenticated by a Witness (Items D, E, F, G)
[97] Items D, E, F, and G are all documents identified in evidence by Damien Gosine as shipping documents pertaining to Cantrina Warehouse.
[98] Damien Gosine testified in the trial proper regarding his role as president and manager of Cantrina warehouse and the process at Cantrina relating to shipping and receiving and documents. Mr. Gosine testified that he rents out space to private businesses, typically food companies, for storage.
[99] Mr. Gosine described the typical paper trail and records keeping process for the warehouse as follows: when a product arrives for storage, Mr. Gosine testified that he would receive paperwork from the client via the driver in the form of a manifest. If there was a discrepancy between the manifest and the product received, warehouse staff would write done what was received on the documents and attach a packing slip to the warehouse receipt which would be filed.
[100] Mr. Gosine testified that a record of what was coming into the warehouse was important and that his employees had to physically verify it because a record was required for billing purposes and Cantrina was responsible for the product it stores. Exhibit 32 consists of shipping documents previously identified by Mr. Gosine and admitted into evidence as Cantrina records.
[101] Mr. Gosine further testified that when a customer wanted product released an email would be sent to his sister Leigh-Anne who worked at the Cantrina Order desk requesting the release of product.
[102] Mr. Gosine testified however that sometime in 2012, he stopped keeping paper work regarding what was coming in from "Tony" and product being shipped out of Cantrina on Mr. Ramrattan's behalf. He testified that his business relationship with Mr. Ramrattan in relation to documents became unusual and that he essentially was not preparing paperwork in relation to Mr. Ramrattan's business, Merchant King/Northern Sales group, in the usual and ordinary course of business.
[103] Corporate documents (exhibit 61) establish that Ontario Corporation Number 2130767, with the name "Merchant King" was incorporated on March 20, 2007. This corporation also conducts business under the business name, "Northern Sales Group." The sole listed director for this corporation is listed as Umaish Tony Ramrattan and the business address/head office given is, 733 Garyray Drive. The documents also confirm that Mr. Ramrattan filed the annual corporate tax returns for this corporation.
[104] Search warrants were executed at Mr. Ramrattan's home at 2 Grigglestone Lane and his business office at 733 Garyray Drive. Documents seized from the Grigglestone address were identified by the seizing officer and admitted into evidence as exhibit 54; documents seized by the police from the Garyray address were similarly identified by the seizing officer and admitted into evidence as exhibit 55. Photographs were taken of the documents and the location of the seizures. (Exhibit 47). Hard copies of these seized documents are contained within item R4, tab P.
[105] I find items D, E, and G, are admissible as original circumstantial evidence in respect of Mr. Ramrattan's company's dealings with Cantrina. These items have been identified by Mr. Gosine as documents relating to his dealings with Mr. Ramrattan's business; these documents are connected to the defendant Ramrattan as a result of the billing address and company name.
[106] Items D, E and G are also admissible as records kept in the ordinary course of Mr. Gosine's business pursuant to section 30(CEA). They are warehouse related documents that pre-date Mr. Gosine's decision to conduct an "off the books" relationship with Mr. Ramrattan.
[107] With respect to Item G, an email from Tony Ramrattan to the Cantrina business email address, Mr. Gosine identified the email address as being that of Cantrina and that email correspondence was the usual means by which goods were identified and subsequently released by Cantrina.
[108] This document is admissible as both a business record given that Mr. Gosine testified that it was the usual means by which product was released at Cantrina and, as an original document identified as originating from Tony Ramrattan's email account which is admissible as an admission (exception to the hearsay rule). If there is evidence that the defendant Ramrattan authored it, acknowledged, adopted it, or acted upon it, the email is admissible for the truth of its content. (Phipson on Evidence (15th ed) (London: Sweet & Maxwell Ltd., 2000); Woods, supra)
[109] Mr. Gosine identified item F as the 'true' inventory of what Mr. Ramrattan had on hand at Cantrina as of the date October 16, 2012. It is therefore admissible as a document authenticated by its maker. However, the credibility and reliability of Mr. Gosine's evidence in this respect is for determination in the trial proper.
[110] Item F is not admissible as a business record per s. 30 (CEA). Mr. Gosine testified that he did not make or keep the inventory summary in the usual and ordinary course of his business and that it was an attempt by him to keep track of what he had on hand regarding Mr. Ramrattan. Mr. Gosine testified that he did not create such a summary for other customers storing in his warehouse.
[111] Further, considering the common law exception, it does not appear given the way Mr. Gosine conducted his business that he was under a duty to create item F. I find therefore that it is not admissible in this regard.
[112] In applying the principled exception I find that although a summary like Item F may have been necessary given the volume of product stored at Cantrina the document does not meet threshold reliability. There is no way to cross check or confirm the reliability of its content and Mr. Gosine testified that at the time he created item F he was no longer keeping track of the ins and outs of Mr. Ramrattan's products. In addition, Mr. Gosine testified that he was also conducting "off the books" transactions with Mr. Ramrattan at this time. As such Item F does not meet threshold reliability.
[113] Item F is not admissible prima face for the truth of its contents. The credibility and reliability of Mr. Gosine's evidence in this respect is for determination in the trial proper.
B. Category 2 - Divisional Headquarter (DHQ), RAC and Railside Documents (Items H, I, K, L, M, N and P to R, U, V, W, X, Y, Z)
[114] Category 2 documents include: Don Butts' Emails, Don Butt's vendor files, drivers logs/schedules, manifests, tax receipts, excerpted product packages. All of these items originated from records and/or files kept at DHQ, RAC and/or various office locations at Railside, or seized by the police from addresses associated to Mr. Ramrattan; Garyray and Grigglestone. There has been comprehensive evidence tendered on the voir dire regarding the business process of Railside in relation to these documents. Considering the totality of the evidence on this voir dire from many sources both within and outside of Railside identifying the nature of these documents and their function in relation to the associated businesses and Railside, the documents are admissible as business records pursuant to s. 30 (CEA).
[115] Not every document in this category was specifically identified by a witness; but the general nature of all of the documents and their role in respect of the workings of Railside were identified and explained by employees of the Salvation Army and Railside who were in a position to do so. The witnesses involved in introducing and authenticating the documents and their purpose is comprised of front line employees at Railside, corporate employees from the Salvation Army's Divisional Headquarters and RAC, as well as donors, and drivers/transport employees from companies who do business with Railside.
[116] Examples of almost every type of document were filed as exhibits in the trial proper through a witness. This includes emails from Don Butt's email account, a Railside manifest, a Northern Sales invoices, and a number of invoices processed by RAC.
[117] Specific employees who dealt with the documents provided evidence with respect to the documents. Witnesses who were familiar with aspects of the documents by virtue of their business relationships with the Salvation Army were also able to give evidence with respect to the nature of the documents.
[118] The viva voce evidence of Railside employees, Don Butt, David Fillier, Jonathan Fillier and Walter Woods makes it abundantly clear that driver's schedules, manifest, bills of lading, waybills, invoices, are documents used every day and maintained at Railside. These documents form the basis for the drafting of month end inventories by Mr. Butt. All four employees provided evidence to assist in understanding and reading the documents and were available for cross examination.
[119] Mr. Butt testified as to the nature of the vendor files and email records he kept in order to track and keep abreast of their donors and other company's Railside regularly dealt with were submitted as two separate items.
[120] Mr. Butt identified his work email address in testimony as well as a number of specific emails to and from his account (see exhibit 10). He testified that he conducted the vast majority of communication with donors and made arrangements for donation pick-ups via email as there would be a record of the transaction. He also stated that he saved his emails by donor.
[121] Mr. Butt's evidence in regard to his email account, his identification of his email address and specific emails, in conjunction with the evidence of Mr. Carr is sufficient authentication of the emails contained within disk 'H' to allow for the documents to be admitted into evidence without resort to a hearsay exception.
[122] Given Mr. Butt's role as procurement director and his evidence that he conducted a significant proportion of his business via email specifically so that a record would be kept of his communication and of the specific transactions, Don Butt's emails, and vendor files are business records pursuant to section 30 of the CEA.
[123] The documents sourced from DHQ and RAC were largely in relation to two aspects of the Salvation Army's operations: processing of payments and generating of tax receipts. RAC deals with accounts payable and receivable for the Salvation Army ministries throughout southwestern Ontario.
[124] Extensive viva voce evidence was heard in relation to policies and procedures at RAC. This included evidence by April Hsueh who described the general procedure at RAC in relation to invoice payment by RAC, identified the stamps used by RAC and individual ministries in relation to accounts payable, and described the process by which documents make their way onto ACI. She also identified a number of paper invoices paid out by RAC which were made exhibits to the trial proper. Both auditors also testified about policies and procedures at RAC.
[125] In the case of ACI, documents submitted to RAC as accounts payable are processed by RAC in the usual and ordinary course and then stored as Salvation Army business records. The material stored includes documents created by the Salvation Army, as well as original documentation by vendors, which become part of the business record stored by the Salvation Army.
[126] I am certainly satisfied that these documents are business records. These documents were all property of the Salvation Army and were gathered by the auditors at the behest and with the express permission of the Salvation Army. Generally speaking these documents could be readily explained and understood by the auditors, who, as a result of their employment, had some firsthand experience with documents such as invoices, some shipping documents and tax receipts from past audits, as well as a good understanding of the nature and purpose of most documents used and stored by the Salvation Army.
[127] Ms. Young testified that during the course of the audit, both she and Mr. Dewsbury became familiar with the processes in relation to these documents and the signatures of most of the individuals who worked in the warehouse.
[128] Documents from the excerpted product packages (M, N, U, V, W, Z, Y) were obtained from SHELBY by the auditors. All of these documents were stored in this secure database and therefore were being kept in the usual and ordinary course of business, not only with respect to the Salvation Army's own internal policies but by reasonable inference, out of its obligation as a charitable organization to account to government agencies in respect of its donations and finances.
[129] The vast majority of the documents at issue on this voir dire were ultimately tendered through the auditors whose evidence about the purpose and use of the documents was amplified by the prior testimony of the first hand users of the documents.
[130] These users not only included Railside employees referred to above, and RAC and DHQ employees with firsthand knowledge of the documents in question, but also individuals from outside Railside and the Salvation Army who testified as to the nature of their business with Railside and the nature of the documents used in transacting their business.
[131] Evidence from outside companies aside form Cantrina Warehouse include: Duncan Transport (Aaron Davison; Jamie Olds), Reckitt Benckiser (Roberto Silvestri), D.B. Schenker (Tousaint Dean), June Brooke (Unilever), Rodney DeForge (Faith Charities), Nicolla Facciuolo, Aris Mohamed (Designer Fragrance Depot exhibit 76), James McAfee (Second Harvest), Davina Ramirez (Nestle Canada exhibit 77), Roger Salty (Molly Magee exhibit 79), Kenneth Sowman (ex 79), Joel Usher (Worldwide Food Distribution exhibit 80), Ali Al-Tout (exhibit 72), Peter Black (wholesaler exhibit 73).
[132] Certainly the cumulative evidence on this voir dire overwhelmingly supports a finding that the nature of the documents the crown seeks to introduce are indeed records kept in the usual and ordinary course of business.
G. Common Law Exception
[133] With respect to the common law exception the shipping documents, invoices, corporate visa records, drivers' logs and schedules, tax receipts certainly meet the criteria for admissibility pursuant to the common law exception. As stated above there were internal rules and policies for Railside and corporately which required that these sorts of records be maintained and in some cases provided to DHQ/RAC.
[134] For example, at Railside these documents helped with the monthly inventory; corporately, invoices were required in order to pay vendors and donors and address expenses needed for the proper operation of Railside; issuing tax receipts would be part of the regular business of this charitable organization.
H. Principled Exception
[135] It is unclear whether Mr. Butt was under a duty to keep the email records or create the vendor files as part of his employment. Surely doing so made abundant sense and I cannot envision how Railside could continue to function or keep up positive working relationships with its donors without the paper trail of these dealings created by Mr. Butt. I note that the emails were sent from a Salvation Army email, stored on the Salvation Army server and accessible to be recovered by Salvation Army technology support.
[136] That being said adopting the cautious approach to admission from Wilcox, I turn my mind to whether Mr. Butt's vendor records and email account are admissible via the principled exception.
[137] I find that necessity is made out given the sheer volume and extent of dealings that Railside had with donors; it would be impossible for Mr. Butt who was the only procurement director to recall these transactions and other dealings.
[138] Indeed, I find that this is the case with the entirety of the documents in Category 2; necessity is made out given the sheer volume of the documents stored in both of these databases and at Railside. A witness would not be able to give the same quality of evidence in relation to individual transactions, nor could they possibly be expected to recall individual transactions.
[139] In relation to reliability, circumstantial guarantees of trustworthiness exit in the documents and how they are stored. These documents are stored as part of the regular duties of particular Salvation Army employees, they are stored in a secure fashion and there are numerous markers on the documents themselves to detail their source.
[140] The documents can be cross referenced between emails, drivers' schedules, invoices, gift in kind receipts. Mr. Butt and other witnesses with knowledge of the documents were available for cross examination.
[141] There are notable issues with missing documents at Railside. Mr. Dewesbury characterized the records at Railside as "deficient" and "incomplete". Both Ms. Young and Mr. Dewesbury testified that they concluded that there was a serious problem with missing documents at Railside. That being said, the records at Railside were generally kept in a rational and organized way and document the day to day operations of both Railside and the greater Salvation Army.
[142] Given that the concern in relation to the admissibility of the records at this stage is their threshold reliability, I find that the evidence in relation to missing documentation from Railside does not detract from the admissibility of the documents pursuant to the principled exception.
I. Admissions Exception
[143] Contained within these category 2 documents are documents which identify Mr. Rennie or Mr. Ramrattan as sender, or recipient (direct or as copied). For example, David Rennie's emails and Item U, the forklift package identified by Mr. Dewesbury as documents found in a green folder located in David Rennie's office. There are other documents within the category which bear David Rennie's initials, approving invoices from Railside, as well as emails and other documents from "Tony", and emails between Don Butt and David Rennie.
[144] Evidence relating to Mr. Ramrattan's connection to Northern Sales Group/Merchant King and the Gary Ray and Grigglestone address has been admitted in a variety of forms including incorporation documents and viva voce testimony, as well as evidence of documents pertaining to the these businesses having been seized from the defendant's home by police.
[145] Admissible evidence has been lead regarding Mr. Rennie's role as executive director for Railside, his responsibility for approving invoices and where necessary seeking approval further up the chain as well as overseeing shipping and donation transactions and dealing with the expenditures at Railside. Mr. Rennie's initials have been identified on samples of invoices stamped for approval by Railside and the finance department at RAC.
[146] Not only are these documents admissible as business records pursuant to s. 30 (CEA) for the reasons stated above, they are also admissible as original circumstantial evidence connecting the defendant to the document without resort to the hearsay exception. In addition, this evidence may also be admissible via the admissions exception to the hearsay rule if there is evidence that the defendant(s) acted, acknowledged or adopted the documents. For example, a document signed or initialed by Mr. Rennie would certainly be admissible for the truth of its contents pursuant to the admissions exception (Woods, supra).
C. Category 3 - Documents of Unknown Provenance
(Item R1, Tab B: B22 and B25; Item R1, Tab C: C266-270; Item R3, Tab O: O274, O424 – O426, O500 – 0501, O531, O536, and O537)
[147] Ms. Young testified that all of the documents at tab B, Item R1 were initially retrieved during the audit process. Although B22, 23, 24 and 25 were not specifically identified by a particular witness, I find that these documents are admissible. These documents all appear on Northern Sales Group letterhead and refer to Tony Ramrattan as the contact for inquiries. They are therefore admissible as original circumstantial evidence linking the defendant Mr. Ramrattan to the documents. In addition the documents may be further admissible for the truth of their contact via the admissions exception to the hearsay rule if there is evidence that the defendant Ramrattan authored, acted, adopted or acknowledged the documents. Certainly the fact that they originated from Northern Sales Group is some evidence that Mr. Ramrattan authored, acknowledged or adopted the contents.
[148] B23 and B24 bear Mr. Rennie's initials and are also admissible via the admissions exception to the hearsay rule.
[149] In addition, all of these documents are shipping documents and/or invoices. The evidence of Ms. Young in general, that the documents from the binders were obtained from RAC and DHQ, combined with the nature of these particular documents suffices to admit them as business records pursuant to s. 30 (CEA). (The handwritten note on the bottom corner of B25 which purports to identify the location where this document was found is not admissible as there was no testimony in relation to that notation.)
[150] Similarly R3 O425, O500, O501, O531, O536, and O537, are admissible in a number of ways. O425, O501, O531, O536, O537, specifically identify Merchant King and/or Northern Sales Group as a party to the documents. O425, O501, O531, are also admissible as business records per s 30 (CEA). These are shipping documents which identify Walter Woods as the receiver or in the case of O531, Don Butt as the receiver. They conform in form and substance with the evidence with respect to the nature of shipping records kept by Salvation Army in relation Railside. In addition, O500 is also admissible as both a business record, and as original evidence via the admissions exception evidence given David Rennie's initials on the document.
[151] There are a number of documents which could not be sourced back to RAC, Salvation Army or Railside but were included in the binders compiled by the auditors. Items C266 – 269 were not specifically located in the Duncan Transportation records, nor was there any evidence about where these documents came from. There is nothing which identifies these documents as a Salvation Army or Railside document on their face or connects them to either defendant. With no information as to their source there is no basis upon which to admit these documents pursuant to either the statutory or common law exceptions to the hearsay rule. These documents are therefore not admissible.
[152] However C270 is admissible as a business record pursuant to s. 30 (CEA); it is an email from Don Butt's Salvation Army email account copied to David Rennie which appears to have also been signed by Walter Woods. As this document was copied to David Rennie it is also admissible as original evidence via the admissions exception to the hearsay rule.
[153] Is there any prohibition to admitting these document items tendered by the Auditors?
[154] Section 30(10) of the CEA states:
(10) Nothing in this section renders admissible in evidence in any legal proceeding
(a) such part of any record as is proved to be
(i) a record made in the course of an investigation or inquiry
(ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,
(iii) a record in respect of the production of which any privilege exists and is claimed, or
(iv) a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;
(b) any record the production of which would be contrary to public policy; or
(c) any transcript or recording of evidence taken in the course of another legal proceeding.
[155] I find no bar to the admission of these records in considering section 30(10) CEA. Although these documents were gathered by the auditors to assist in both their own internal investigation and the police investigation, none of these documents were created or made by the auditors in the course of their investigation.
[156] Section 30(10) prohibits the admission of documents made in certain circumstances, including a record made in the course of an investigation or inquiry. The rationale behind the subsection is that records made in the course of an investigation or inquiry, do not have the same inherent reliability as other business records since they are created in circumstances which may create bias. It does not however preclude the admission of documents gathered during the course of an investigation or inquiry. (emphasis added).
R. v. Dunn, [2011] O.J. No. 2221 (Sup. Ct.) at paras. 20 -25.
R. v. Farhan, 2013 ONSC 7094, [2013] O.J. No. 5519 (Sup. Ct.) at paras 15 – 19.
R. v. Laverty, [1979] O.J. No. 442 (C.A.) at para. 10.
[157] The role of the auditors in the case at bar in gathering and compiling the documents referred to thus far is unlike that of the auditors in Dunn, supra. In Dunn, the crown sought to admit the interviews of the defendant conducted by lawyers for an audit committee during a financial review of Nortel. Nortel's auditors directed these interviews be conducted through a law firm and also directed that the law firm brief Canada and United States regulators.
[158] The court concluded that the memorandum of interviews created by the lawyers was made in the course of an investigation or inquiry:
In this case, it is clear that an investigation was being undertaken by WCP. That is obvious from the nature of the assignment given to WCP and by the numerous references in WCP's work to their "investigation" It is further confirmed by the WCP report where WCP makes specific and serious allegation of wrongdoing against a number of individuals, including the accused in this case. The nature of the work undertaken by WCP therefore gives rise to the concern about the intentional or unintentional colouring or shading of the facts as recorded in the same fashion as that concern arose in the records prepared by the employees in Lion d'or or by the auditor in Zaki. Dunn, supra para 24.
[159] Unlike Dunn, the auditors in this case, although clearly conducting an investigation into the defendant's from August 2012, onwards, did not create any of the records the crown seeks to rely upon in Category 2; they gathered them and organized them, and even excerpted them into specific product packages. But I find that there is nothing in how these documents have been kept, made or tendered on the voir dire which contravenes section 30(10)(CEA) or any other provision in section 30 (CEA). There has been no manipulation, deletion or addition to their content.
Part D: Is the Ins and Outs Table (Item 'S') and the Vendor List Item "T" Admissible as Summaries or Via Any Other Route
[160] Both the Ins and Outs Table and the Vendor List were created by the auditors in the course of their investigation. As such, they are explicitly excluded from admissibility as a business record pursuant to s. 30 (CEA). They do not meet the criteria as a business record at common law, as the table and the list were specifically created for the audit investigation and not in the usual and ordinary course of business.
[161] However, documents or records which are properly characterized as summaries and calculations based up properly admitted evidence are admissible.
R v. Scheel, [1978] O.J. No. 888(C.A.) at paras. 13 -19;
R v Martin, [1997] 8 C.R.(5th)246 at paras. 20 - 22.
[162] I have no difficulty in finding that the list of vendors compiled by the auditors from the document and invoices they obtained in compiling the binders, item "T", is a summary and is admissible as such. There is nothing controversial or prejudicial in this list.
[163] However, in relation to the admissibility of the Ins and Outs table, I come to a different result. I disagree with the crown's characterization of the Ins and Outs table as analogous to the auditor summaries referred to by the Court in R. v. Scheel, supra and the mathematical calculations in R. v. Martin, supra and other cases which have considered this issue.
[164] In Scheel supra, which involved allegations of fraud in relation to a pallet repair company, the crown sought to admit a summary which listed the number of pallets ordered by customer as per the invoices. The summary in question provided a history of the order showing the number of boxes delivered, their value, the number of boxes not delivered, and the amount of money not returned including an accumulated total of unfulfilled orders for all customers who placed orders for boxes during a specific time period and a total of unreturned payments. All of this information listed in the summary in Scheel, was available by tallying readily identifiable and admissible documents and employing simple mathematical calculations.
[165] In R v. Hall [1998] B.B.J. No. 2515 (B.C.S.C.), cited with approval in R v. Marini [2006] O.J. No. 4057 affirmed on appeal 2007 ONCA 89, [2007] O.J. No. 478, the court held on this issue:
In the case at bar all that has happened is that in-house investigators have retrieved the pertinent portions of pre-existing records which were not originally made with a view to criminal or civil legal proceedings but rather to ordinary business purposes. Neither of the investigators has created the evidence here proffered. All the investigators did was to identify the record as one registered in the name of the ghost account and cause the information on it in the computer to be printed out. This is no more the creation of a new record than that which happens when a bank clerk identifies a bank record from an account record. Further, I am satisfied that the selection of a target account from the huge number of computer accounts in the telephone companies in question does not in any way distort the evidence by removing it from its evidentiary context, such as may happen when a newspaper article uses a quotation out of context.
[166] In Martin, supra, the defendant was alleged to have defrauded the Saskatchewan Wheat board by signing declarations regarding the amount of grain he had for which he in turn received cash advances from the province. It was alleged that the amounts the defendant declared were false. In order to establish the amount of grain the defendant actually had on hand at the time he made the declarations, the crown sought to use crop production summaries prepared for the province's insurance board which recorded the length and width of the grain barrels.
[167] In the usual course, auditors for the insurance board would have employed a calculation to convert these measurements into amounts on hand in imperial measurement. At trial, the crown sought to call an auditor for this very purpose, evidence which was ultimately not permitted by the trial judge.
[168] The Saskatchewan Court of Appeal in Martin, supra, in finding that the trial judge erred in not admitting the auditor's calculations, held that there was no rule prohibiting a witness from performing math calculations that either a judge or counsel could be called on to perform. The Court of Appeal recognized that the crop summary forms containing the measurements upon which the auditor's calculations relied were records made in the ordinary course, and that the auditor was being called to tell the jury the volume of grain represented by the linear measurement already in evidence, and to explain how he arrived at that figure.
[169] Given the jurisprudence I am satisfied that summaries of admissible evidence as well as non-expert calculations and conversions in respect of admissible evidence, even if these are tendered by auditors or other witnesses in their investigatory role, are admissible. Inherent in the nature of such summaries and calculations is that they are unassailable; calculations are neutral, summaries are readily discernible. Concerns regarding the partiality of the results are obviated by the nature of the methodology, as are concerns regarding reliability.
[170] In this case, some aspects of the auditors work in respect of the Ins and Outs table conform to the definition of summary and simple calculations. The auditors based the table largely on documents I have found to be admissible with a few minor exceptions. In addition where there was no apparent valuation for a donation the auditors testified that they employed a standard commonly acknowledged fair market valuation of $2.10 to calculate the value of donations. To the extent that the table does include a tally of product shipped to or from Railside from readily identifiable admissible documents its admission is not objectionable through the auditors.
[171] However, the Ins and Outs table goes farther than simply summarizing and calculating readily identifiable totals of product moved or received. The table is an attempt by the auditors to reconstruct transactions by interpreting and analyzing documents in order to come to certain conclusions consistent with their theory; conclusions regarding how product moved, conclusions regarding the total dollar value loss to the Salvation Army as a result of product purportedly diverted away from Railside, and conclusions regarding total gain to Northern Sales Group/Merchant King as a result of the redirection.
[172] These conclusions are only reached by the auditors by analysis and interpretation of documents and by filling in gaps in the records, or leaving gaps, where no interpretation could be made. The table goes far beyond the admissible purview of a summary based on readily discernible calculations.
[173] The auditors did use a consistent set of criteria to come to conclusions regarding the movement of product to and from Railside from Cantrina warehouse and/or Northern Sales Group. To determine if product had been received at any of these locations they looked for documents, including manifests and emails, which showed that an order had been delivered. They also looked to ensure that there was no corresponding document to show that the product had been received elsewhere. They also looked, in the alternative, for any documents from a third party transport company that showed that the company had delivered the product to the location in question.
[174] This methodology, although consistently applied is not a summary or a calculation. Instead, it is an attempt to reconstruct transactions and movement of product.
[175] In addition, as the auditors readily admit, the underpinnings of a number of their conclusions were plagued with significant deficiencies. Some of the issues are as follows:
The auditors acknowledge extensive missing documents and that they were unable to obtain valuations for product in every case;
The auditors testified that they often did not have a full description of products and/or did not know what the product was or how many skids were involved in the donation. On some occasions Ms. Young testified that she determined values for toys by using the internet;
The auditors testified that sometimes what was indicated in terms of the amount to be donated in an email would be a different amount from the Bill of Lading. In that case the auditors testified that they relied on the Bill of Lading;
The auditors testified that any document which appeared to be some kind of manifest was sufficient for them to conclude that the product had been received, even without a signature;
The auditors agreed in their evidence that with regards to almost all of the purchase orders in relation to Northern Sales Group/Merchant King and Railside, they could not discern if the entire product was intended to go to Railside.
[176] In essence, the Ins and Outs table is an investigatory report which uses a mix of mathematical calculations and tallies of product that on their own could be admissible, but also analysis and conclusions based on the interpretation of records which is not admissible evidence through the auditors. In addition, the table is admittedly plagued with reliability issues as a result of missing documents, unclear valuations, illegible documents and unexplained notations.
[177] The culmination of the calculations used by the auditors in this case was more than the application of a readily identifiable formula to convert a readily identifiable measurement. It is not based on a summary of the transactions but based on an interpretation by the auditors of how products transacted, in aid of an investigatory purpose.
Part V: Conclusion
[178] The admissible documents are as follow: all documents in Category 1; all documents in Category 2; the following documents in Category 3 B22, 23, 24, 25, R3 O425, O500, O501, O536, O537, C270 and Item T.
[179] The documents ruled inadmissible are: Category 3 C266 -269 and the Ins and Outs table Item S.
Date: September 14, 2015
Signed: Justice Sandra Bacchus
Appendix A
| Item # | Description | Exhibit # |
|---|---|---|
| D | Cantrina Invoices | 33A |
| E | Cantrina Customer Open Balance Sheets re Merchant King | 34A |
| F | Cantrina Inventory Summaries | 35A |
| G | Email from Tony Ramrattan to Cantrina re: release of meat product | 36 |
| H | CD-Don Butt's emails | 86 |
| I | CD - Don Butt's Files | 87 |
| K | CD - Drivers Logs & DB Visa | 88 |
| M | Kraft-Peek Frean Cookies package | 89 |
| N | Reckitt Benckiser Package | 90 |
| L | Gift in Kind Files | 91 |
| P1 | Binder: Drivers Schedules P. 1-399 | 92 |
| P2 | Binder: Driver's Schedules P. 400-925 | 93 |
| P3 | Binder: Driver's Schedules P. 926-1394 | 94 |
| Q1 | Binder: Manifest P. 1-727 | 95 |
| Q2 | Binder: Manifest P. 728-1176 | 96 |
| Q3 | Binder: Manifest P. 1177-1581 | 97 |
| R1 | Binder: Selected Auditor Materials B & C's | 98 |
| R2 | Binder: Selected Auditor Materials DB | 99 |
| R3 | Binder: Selected Auditor Materials DS, M, O | 100 |
| R4 | Binder: Selected Auditor Materials P, T | 101 |
| S | CD: Ins and out - Excel spreadsheet | Not Admitted |
| T | Ins and Out vendor List | 102 |
| U | Forklift Package | 103 |
| V | Trading Package | 104 |
| W | Sun Product Package | 105 |
| X | Smuckers Package | 106 |
| Y | Unilever Package | 107 |
| Z | J. BROOKE expired donation agreement | 108 |
Appendix B
September 1, 2015
Ms. Carolyn Boyd Mr. Andreas Hannah-Suarez - by fax (416) 314-4234 Assistant Crown Attorney Ontario Court of Justice 1000 Finch Avenue West Toronto, Ontario M3J 2V5
Ms. Angela Chiasson – by fax (416) 964-8305 Ruby Shiller Chan Hasan 11 Prince Arthur Ave. Toronto, Ontario M5R 1B2
Ms. Janelle Khan - by fax 1-866-497-1172 295 Matheson Blvd. East Mississauga, Ontario L4Z 1X8
Dear Counsel:
RE: The Ruling of the Court in Relation to the Admission of Documentary Evidence
As I indicated I am providing you with a Summary of my reasons in respect of the Crown's application to admit Documentary Evidence in the Trial proper; written reasons will follow. Here are my findings:
1. ITEMS D, E, F AND G ARE ADMISSIBLE.
These items have been identified by Mr. Gosine as documents relating to his dealings with Mr. Ramrattan's business; they are admissible as original evidence. Items D, E and G are admissible as records kept in the ordinary course of Mr. Gosine's business. Item G is also admissible as original evidence as it purports to identify the defendant through his business Northern Sales Group. Mr. Gosine identified item F as the true inventory of what Mr. Ramrattan had on hand at Cantrina as of the date October 16, 2012. It is therefore admissible. The credibility and reliability of Mr. Gosine's evidence in this respect is for determination in the trial proper. Item F is not admissible as a business record per s. 30 (CEA). Mr. Gosine testified that he did not make the inventory summary in the usual and ordinary course of his business.
2. ITEMS H, I, K, M, N, L, P, Q, R1, R2, R3, R4, U, V, W, X, Y, Z ARE ADMISSIBLE.
All of these items originated from DHQ, RAC and/or various office locations at Railside, or seized by the police from addresses associated to Mr. Ramrattan; Garyray and Grigglestone. There has been comprehensive evidence tendered on the voir dire regarding the business process of Railside in relation to these documents. Considering the totality of the evidence on this voir dire from many sources both within and outside of Railside identifying the nature of these documents and their function in relation to the associated businesses and Railside, the documents are admissible as business records pursuant to s. 30 (CEA).
3. Documents which identify either of the defendants as sender, or recipient (direct or as copied) are admissible as original evidence connecting the defendant to the document without resort to the hearsay exception.
Evidence relating to Mr. Ramrattan's connection to Northern Sales Group/Merchant King and the Gary Ray and Grigglestone address has been admitted in a variety of forms including incorporation documents and viva voce testimony, as well as evidence of documents pertaining to the these businesses having been seized from the defendant's home by police.
4. In addition, admissible evidence has been lead regarding Mr. Rennie's role as executive director for Railside, his responsibility for approving invoices and where necessary seeking approval further up the chain as well as overseeing shipping and donation transactions and dealing with the expenditures at Railside.
Mr. Rennie's initials have been identified on samples of invoices stamped for approval by Railside and the finance department at RAC.
5. This evidence may also be admissible via the admissions exception to the hearsay rule if there is evidence that the defendant(s) acted, acknowledged or adopted the documents.
6. There are a number of documents which could not be sourced back to RAC, Salvation Army or Railside but were included in the binders compiled by the auditors:
R1 B22, 23, 24 25: admissible as original evidence without resort to the hearsay exception. In addition B23 and B24 are admissible as business records pursuant to s. 30 (CEA). The handwritten note on the bottom corner of B25 which purports to identify the location where this document was found is not admissible and should be excised from the document unless there is no objection to it;
R1 C 266 – 269: not admissible: (there is nothing which identifies these documents as a Salvation Army or Railside document on their face or connects them to either defendant). With no information as to their source there is no basis upon which to admit these documents pursuant to either the statutory or common law exceptions to the hearsay rule.
R1 C270: admissible as a business records. 30 (CEA)
R3 0425, 500-501, 531, 536-537: admissible as original evidence; 0425, 0501, 0531, 0536, 0537 specifically identify Merchant King and/or Northern Sales Group as a party to the documents. 0425, 501, 531 are also admissible as business records per s 30 (CEA). In addition, 0500 is also admissible as both a business record and original evidence given David Rennie's initials.
7. Item T (Vendor List) is ADMISSIBLE as a summary of the vendors captured by the admissible invoices, shipping document and emails.
8. Item S (the Ins and Outs Table) is ADMISSIBLE ONLY IN PART.
To the extent that item S summarizes, categorizes, and lists companies who donated to Railside or who received donated products from Railside by way of common invoice numbers, related emails and other shipping documents, during a specific time period, item S is an appropriate summary of admissible documents and is therefore admissible. However, to the extent that item S seeks to reconstruct the movement of product it is not admissible nor are the aggregate of calculations admissible. The culmination of the calculations used by the auditors in this case was more than the application of a readily identifiable formula to convert a readily identifiable measurement. It is not based on a summary of the transactions but based on an interpretation by the auditors of how products transacted, in aid of an investigatory purpose.
If the admissibility of any particular document remains contentious or unclear in light of my ruling, I will hear submissions in respect of any such document(s).
Yours truly,
Justice Sandra Bacchus
SB:rz