ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: A0140/12
DATE: 2013-02-04
B E T W E E N:
Her Majesty the Queen
Brent Bentham for the Appellant
Appellant
- and -
Michael Rowen
D. McCabe-Lokos for the Respondent
Respondent
Released: February 4, 2013
Reasons for Decision
Cavarzan J.
[1] This is an appeal by the Crown from the acquittal of the respondent on a charge of failing to comply with a recognizance. The grounds for the appeal are that the trial judge erred in excluding the original information and recognizance of bail, sought by the Crown to be tendered in evidence, for failure to provide notice of the Crown’s intention to rely on them as evidence at trial.
[2] The position of the Crown is that original court documents, such as an information with recognizance attached, may be tendered in evidence at trial without giving the notice required by s. 28 of the Canada Evidence Act (C.E.A.). They are admissible at common law without notice.
[3] Respondent’s counsel did not dispute that the position of the Crown is an accurate reflection of the applicable law. She opposes the appeal on the authority of the dissenting reasons in R. v. Brown 1993 114 (SCC), [1993] 2 S.C.R. 918, that arguments not raised at trial may not be raised on appeal.
[4] At the conclusion of submissions I granted the Crown appeal in this case in accordance with written reasons to follow. There are those reasons.
Background
[5] The trial was over in a matter of minutes. The transcript of proceedings is seven pages long.
[6] At the opening of trial the prosecutor sought to tender in evidence the original information and recognizance. Defence counsel objected to the admissibility of those documents citing s. 28 of the C.E.A. and the failure by the Crown to give the requisite notice of its intention to tender those documents in evidence.
[7] Crown counsel at trial, who was not the counsel with carriage of the matter and had just been asked that day to take the trial, then attempted to determine from the file whether any notice had been given. She subsequently sought and was given an opportunity to speak to the instructing Crown counsel in an adjacent courtroom. She was able to confirm that written notice had not been given.
[8] The very experienced trial judge noted that the documents in question are “[e]vidence of judicial proceedings”, and suggested that s. 23 of the C.E.A. rendered them admissible. ”This is a judicial record isn’t it, section 23?” ”So, I think it gets in that way counsel. Crown, it gets in under 23.” “That’s the court document. So, ready to proceed then?”
[9] Defence counsel then pointed out that section 28 applies to section 23.
[10] The trial judge then asked Crown counsel whether there was any indication in the file that some form of notice had been given. At page 4 of the transcript he notes that: “Usually these are admitted. So, we haven’t had this issue in a number of years. But I think defence counsel is right.”
[11] The following are the relevant provisions of the Canada Evidence Act, R.S.C. 1985, c. C-5 as amended:
(1) Evidence of any proceeding or record whatever of, in or before any … court in a province … may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal of the court or under the hand or seal of the justice, coroner or court stenographer, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice, coroner or court stenographer or other proof whatever.
(1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23, 24, 25, 26 or 27, on any trial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.
(2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.
[12] I note in passing that although notice would ordinarily be written notice, there is no requirement as suggested by defence counsel at trial that the notice be in writing. The learned trial judge recognized that reasonable notice is required and that he has discretion to allow such material in evidence.
[13] Sections 23, 28 and 31 are all included in Part I of the C.E.A:
- This Part shall be deemed to be in addition to and not in derogation of any powers of proving documents given by any existing Act or existing at law.
[14] The Crown relies on two Ontario Court of Appeal decisions for the proposition that court documents are always admissible at trial; accordingly section 36 of the C.E.A. recognizes and preserves the court’s common law jurisdiction to admit into evidence documents such as those in question in this case.
[15] In R. v. Hunt [1986] O.J. No. 1210 (Ont.C.A.), a brief judgment delivered orally by Brooke J.A. the following proposition is adopted: “The court has at all times the power to look at its own records and to take notice of their contents. See Craven v. Smith (1869) L.R. 4 Ex. 146.”
[16] In a brief endorsement by Howland C.J.O. in R. v. Timms [1989] O.J. No. 893 (Ont. C.A.) a case dealing with a recognizance, the following is stated:
It is conceded that the signature on the recognizance is the signature of the appellant and that the original recognizance was tendered in evidence at the opening of the trial.
Counsel for the appellant contends that the original recognizance is not a court or judicial document. With respect we disagree. The taking of the recognizance is authorized by the Criminal Code and was in form 32. In our opinion, the recognizance is a judicial or court document and was admissible in evidence against the appellant without further proof.
[17] Also in 1989, the Alberta Court of Appeal in R. v. Tatomir 1989 ABCA 233, [1989] A.J. No. 843 accepted the proposition that the Crown was entitled under common law to prove without notice the copy of an Order of Driving Prohibition Against an Offender because it was an exemplification. It cited with approval the proposition in J. Douglas Ewart, Documentary Evidence in Canada (1984) at p. 183 that:
At common law, judicial documents must be proved by the production of the original record or an exemplification under the seal of the court to which the record belongs. No notice is required.
[18] This precedent was followed in R. v. White [1994] O.J. No. 1698 (O.C.J.-G.D.) and in R. v. Reid 2007 ABPC 34, [2007] A.J. No. 96 in which Semenuk Prov. Ct. J. reviews cases applying the law in R. v. Tatomir.
Argument Not Raised at Trial
[19] As noted above, I agree with the Crown’s position based on the common law and section 36 of the C.E.A.. Respondent’s counsel does not dispute that that is the correct position in law. The respondent’s position is, however, that the appellant is prohibited from making this argument on appeal, because it was not raised as an issue at trial.
[20] Respondent’s counsel cited in support of that position, certain propositions from the dissenting reasons of L’Heureux-Dubé J. in R. v. Brown 1993 114 (SCC), [1993] 2 S.C.R. 918 at paragraphs 8 to 11 and, in particular, from paragraph 10:
- Courts have long frowned on the practice of raising new arguments on appeal. The concerns are twofold: first, prejudice to the other side caused by the lack of opportunity to respond and adduce evidence at trial and second, the lack of a sufficient record upon which to make the findings of fact necessary to properly rule on the new issue. [case citations omitted]
[21] A third reason cited was the societal interest in the finality of litigation in criminal matters, including the smooth and fair functioning of the administration of justice without incurring unnecessary costs.
[22] In my view, none of the above reasons apply in the circumstances here. The issue before the court was that of the admissibility of the documents tendered. It was an issue raised by the defence. When Crown counsel asked for a moment to review the unfamiliar file, defence counsel states (at page 3 of the transcript): “There’s nothing to talk about. I don’t need two days of – no, nobody talked about it. Everybody [sic] just ignoring the fact that you need notice.”
[23] Defence counsel made the objection, pressed vigorously for a finding that section 28 governed and, in effect, stampeded the learned trial judge into overcoming his initial instinct that the judicial record is properly admissible. It is not open to the respondent, in the circumstances, to claim prejudice from lack of opportunity to respond.
[24] The concern about the lack of sufficient record upon which to make findings of fact does not arise in the circumstances here.
[25] The overarching societal interest in the proper and efficient administration of justice and in finality is not adversely affected by ordering the retrial of a proceeding which lasted a mere matter of minutes.
[26] Finally, and ironically, R. v. Brown is a case in which the majority in the Supreme Court of Canada ordered a retrial. The appellant had been convicted of first degree murder on the basis of taped conversations made by an undercover policeman. When the trial judge raised the issue of admissibility of those conversations, the appellant agreed that all of the evidence should be admissible and he signed a statement to that effect. The tapes were viewed by the defence as largely exculpatory and, as part of its trial strategy, utilized them as evidence that the accused had not killed the deceased.
[27] On appeal, the defence sought to impugn that evidence as inadmissible because it was obtained in breach of the accused’s rights under section 7 of the Canadian Charter of Rights and Freedoms.
[28] The majority ordered a new trial stating in paragraph 1 of the reasons in R. v. Brown that:
…in the new trial, the Crown and the appellant shall have the right to lead evidence going to the issue of whether or not the appellant knew that his interrogations were being conducted by police officers such that he waived his right to silence.
[29] The Supreme Court of Canada saw no merit in the submission made in the Brown case that the court should not entertain arguments not made in the court below, even though the defence was attempting to reverse course entirely. In my view, it follows necessarily that there is no merit in the respondent’s position in this appeal where the issue remained whether or not the documents in question are admissible in evidence.
Conclusion
[30] This appeal is allowed, the acquittal is quashed and the matter is remitted for a new trial before a judge of the Ontario Court of Justice at Hamilton, Ontario, other than the trial judge appealed from.
Cavarzan J.
Released: February 4, 2013
COURT FILE NO.: A0140/12
DATE: 2013-02-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Appellant
- and –
Michael Rowen
Respondent
REASONS FOR DECISION
CAVARZAN J.
JC//dm
Released: February 4, 2013
- at page 3 of the transcript of proceedings.