Court Information

Ontario Court of Justice Date: June 13, 2018 Location: Scarborough - Toronto

Between: Her Majesty the Queen And: Tisman Larocque

For the Crown: S. Walker For the Accused: No one appearing

Heard: March 8, 2018

Ruling

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] The accused is charged with breach of probation. It is alleged that he failed to "attend and actively participate in all assessment, counselling, or rehabilitative programs as directed by the probation officer and complete them to the satisfaction of the probation officer for: domestic violence, which may include the Partner Assault Response (PAR) program".

[2] Ingrid Wharton is an employee of Family Service Toronto and is in charge of administering the PAR program that Mr. Larocque was directed to participate in. The Crown is seeking to introduce into evidence, through the testimony of Ms. Wharton, copies of documents generated by the PAR program. The Crown argues that the copies in question are admissible as business records to prove the facts purportedly recorded on these documents.

B. The Evidence Regarding the Tendered Documents

[3] The evidence regarding the copies that the Crown seeks to adduce for the truth of the facts purportedly recorded on them comes entirely from the testimony of Ingrid Wharton.

[4] Ms. Wharton was the case coordinator for the PAR program of Family Service Toronto in the summer of 2016. While she recalled meeting Mr. Larocque during his attendance at the program that summer, her only specific recollection in dealing with him was to tell him that he had been expelled from the program. She did this because her review of the records at the time led her to conclude that he had missed two sessions, which, according to the rules of the program, resulted in his "dismissal". She also recalled preparing a closing report.

[5] Ms. Wharton worked with other staff members in the summer of 2016. Sessions are held every week and a sign-in sheet is routinely placed on a desk for participants to sign when they arrive. No staff member oversees the signing of the sheets, although they are collected after each session and stored somewhere. A group attendance sheet is also routinely prepared by the staff member in charge of the group session. These sheets are also preserved somewhere.

[6] Ms. Wharton brought with her to court heavily redacted copies of the "Group Sign-in Sheets" for July 16, 23, 30, and August 6, 2016 (Exhibits "A", "C", "E" and "G"). She also brought heavily redacted copies of the "Group Attendance Sheets" for July 16, 30 and August 6, 2016 (Exhibits "B", "F" and "H"). Lastly, she brought a photocopy of the "Client Agreement" purportedly signed by Mr. Larocque on July 23, and purportedly witnessed by a staff member other than Ms. Wharton on that same day.

[7] Ms. Wharton was not responsible for the making of these copies. They were given to her by someone on her staff who had prepared them in response to a request from the police or Crown for court purposes. And while in response to a rather leading question from Mr. Walker she claimed to be able to personally vouch for the accuracy of the copies, upon further questioning by me it became clear that she had never compared the copies to the originals.

[8] She was familiar with the redacting process. Because the original documents contain sensitive information about other clients, it is the practice of the staff to make true copies of the original unredacted documents, black out the sensitive information on these true copies and then make further copies of the first set of redacted copies.

[9] Ms. Wharton further explained that certain entries on the copies of the sign-in sheets she had brought to court were not on the originals. Rather, some other staff member, usually Tina Hope, would normally put a notation on the first copy in the space where the client's signature was missing. That new notation thus appears in the final copy brought to court. These new markings signify that Mr. Larocque has missed a meeting, or in the case of August 6 has been dismissed from the program. ("Miss" on July 16, "missed" on July 30 and "dismissed" on August 6).

[10] Ms. Wharton was not herself responsible for the notations on the Sign-In Sheets. According to her they demonstrate that Mr. Larocque did not attend on July 16 for intake, but rather chose to attend on the second available intake date of June 23. Thereafter he failed to attend on July 30 and August 6, resulting in his dismissal on August 6.

[11] As concerns the Group Attendance Sheets, Ms. Wharton testified that in the usual course of events, the staff member in charge of the group would fill out the originals and note whether the particular client attended the day's meeting. Ms. Wharton was not herself responsible for any of the entries on these documents, but she did interpret them for the Court. According to her, the Group Attendance Sheets demonstrate that Mr. Larocque did not attend on July 16, or July 30 and was dismissed from the program for non-attendance on August 6.

C. The Legal Principles

[12] The records sought to be introduced are business records. Business records are hearsay and presumptively inadmissible. The common law, and the Canada Evidence Act both provide for admission of business records when they meet certain criteria. Either route is available.

(a) Section 30 of the Canada Evidence Act

[13] Business records will be admissible pursuant to the Act where all of several prerequisites are met. Section 30(3) provides for the admission of a copy of a record where it is proven (either by way of affidavit or viva voce testimony), that it is not possible or practicable to produce the original record as described in subsection (1) or (2), and that the copies are authentic. Evidence of authenticity must come from the person who made the copy. R. v. Clarke at para. 20

(b) The Common Law

[14] Business records will be admissible at common law where the record is: (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent. See Ewart, Documentary Evidence in Canada (Carswell Co., 1984).

[15] A more modern approach has evolved. The "original entry" need not have been made personally by a recorder with knowledge of the thing recorded. See R. v. Monkhouse, 1987 ABCA 227.

D. The Legal Principles Applied to the PAR Documents

[16] Do the PAR business records meet all the requirements for admissibility under the Canada Evidence Act? I find that they do not.

[17] While no evidence was led that expressly addressed the impracticability of producing the originals, I find that the sensitive and personal nature of most of the entries on the originals make it impracticable to produce them.

[18] However, while the original records are certainly kept in the normal course of business, the copies sought to be introduced have not been authenticated. Ms. Wharton did not make the copies, nor did she participate in the redactions. She could only say that the copies are in the same general form as she would expect the originals to be. Moreover, as far as the sign-in sheets are concerned, she admitted that there are entries on the copies that do not appear on the originals.

[19] Nor do the records in question meet all the requirements of the common law. First and foremost, the common law requires the originals be offered in evidence. Even if the common law has evolved to provide for the admissibility of copies, there must be evidence that the copies are authentic, coming from the person who made the copies.

E. Conclusion

[20] The PAR documents are inadmissible.

Released on June 13, 2018

Justice Russell Silverstein