ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 106/13
DATE: 20140923
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
TRISTEN BAILEY
Lori Hamilton,
for the Crown, appellant
Mark Halfyard,
for the accused, respondent
HEARD: May 14, 2014
K.L. Campbell J:
I
Overview
[1] The respondent, Tristen Bailey, was tried by Madam Justice M. Hogan of the Ontario Court of Justice on one charge of willfully obstructing a peace officer in the execution of his duty, and two charges of failing to comply with a recognizance. All of these offences were alleged to have been committed in Toronto on February 25, 2013.
[2] Two Toronto Police Service (TPS) officers stopped a motor vehicle in the early morning hours of February 25, 2013. The vehicle contained five young males. The Crown alleged that the respondent was seated in the back seat of this vehicle and, when asked for his identification in furtherance of an apparent seatbelt infraction, he orally provided the police with a false name. He told the police he was “Keashawn Harper.” The Crown alleged that the respondent lied to the police about his true identity because he was bound, at the time, by two separate recognizances that effectively required him to be within the confines of his residence at that time of the night. The police soon discovered the respondent’s true identity and the existence of the recognizances, and quickly arrested him for these offences.
[3] The respondent was acquitted of all three of these charges. At the conclusion of the Crown’s case, on a directed verdict motion by the defence, the respondent was acquitted of the “obstruct police” charge on basis that there was no evidence that “Keashawn Harper” was a false name. The respondent was acquitted of the two “fail to comply” charges after the trial judge ruled that the documentary evidence tendered by the Crown was inadmissible as a result of the Crown’s failure to meet the statutory requirement for notice pursuant to s. 28 of the Canada Evidence Act, R.S.C. 1985 chap. C-5.
[4] The Crown appeals against these acquittals. The Crown argues that the trial judge erred in two respects: first, in excluding all of the documents that established the two “fail to comply” charges, and second, in concluding that there was no evidence that the respondent had provided the police with a false name. For the following reasons, I agree with both of these arguments. Accordingly, the appeal must be allowed, the acquittals of the respondent set aside, and a new trial ordered.
II
The Fail to Comply Charges
A. The Documents Tendered by the Crown
[5] In an effort to establish the alleged guilt of the respondent on one of the “fail to comply” charges, the Crown tendered a package of documents, which included all of the following:
• Information: A copy of an information, sworn on November 1, 2011, charging Tristen Tevonne Bailey with ten firearm-related offences, all allegedly committed in Toronto on October 31, 2011. This information showed that Tristen Bailey was committed for trial, following a preliminary inquiry, on the first three of these firearm offences, on October 16, 2012.
• Recognizance: A copy of a recognizance of bail, dated November 21, 2011, outlining the various conditions of the judicial interim release order for Tristen Tevonne Bailey in relation to his alleged firearm-related offences. Amongst other things, this recognizance required him to reside at a specified address with his named surety, Shelly Harper, and to observe a “house arrest” condition only permitting him to be away from his place of residence to attend a “Breaking the Cycle-Ambassador Leadership Program,” or while in the company of his surety.
• Bail Variation Order: A copy of a Bail Variation Order, dated December 19, 2011, concerning Tristen Bailey and his pending firearm-related charges for offences allegedly committed on October 31, 2011. This order noted that Mr. Bailey was released on a Recognizance of Bail on November 21, 2011, and permitted the proposed variation regarding his “house arrest” condition, allowing him to be away from his place of residence only to attend the same specified leadership program, but at a specified address, or while in the direct company of his surety. This variation was made with the written permission of his surety.
• Recognizance – Three Offences: A copy of a recognizance of bail, dated October 16, 2012, outlining the various conditions of the judicial interim release order for Tristen Tevonne Bailey in relation to three of his alleged firearm-related offences. Amongst other things, this recognizance required him to reside at a specified address and to observe a curfew within that residence between 10:00 p.m. and 6:00 a.m. each and every day, except when in the presence of his named surety, Shelley Harper, or with her prior written permission.
• Indictment: A copy of an Indictment, dated October 29, 2012, charging Tristen Bailey with three firearm-related offences, all allegedly committed in Toronto on October 31, 2011. This indictment showed that Tristen Bailey was scheduled to be tried for these alleged offences starting on October 7, 2013.
[6] All five of these documents were certified by the Local Registrar of the Superior Court of Justice and displayed the red seal of the court.
B. The Positions of the Parties at Trial
[7] Despite challenging the admissibility of these documents, the defence formally admitted, at the very outset of the trial, that the respondent, Tristen Bailey, was in fact the person named in all of those documents, and that there was no need for the Crown to call the original arresting police officer to identify the respondent as the person named in those documents.
[8] The Crown argued that these documents were admissible as they were “exemplifications,” certified court documents created under the official embossed red seal of the Superior Court of Justice. They were relevant to the issues in the case given the defence admission that they related to the respondent, Tristen Bailey. The Crown further contended that, as these documents were “exemplifications,” there was no notice required as a condition precedent to their admissibility. In advancing this argument, the Crown relied primarily upon three decisions, namely, R. v. Tatomir, 1989 ABCA 233, 99 A.R. 188, leave denied, [1989] S.C.C.A. No. 448; R. v. Dickinson, [1996] O.J. No. 5121, 21 M.V.R. (3d) 130 (Gen.Div.); and R. v. C.(W.B.) (2000), 2000 5659 (ON CA), 130 O.A.C. 1, 142 C.C.C. (3d) 490 (C.A.), affirmed, 2001 SCC 17, [2001] 1 S.C.R. 530. The Crown argued that these cases were “binding authority” on the trial judge.
[9] In the alternative, the Crown argued that, if “reasonable notice” was required, it was provided by virtue of a combination of the formal Canada Evidence Act notice personally served on the respondent on February 25, 2013 following his arrest, and the copies of the various documents that were ultimately provided to defence counsel prior to trial. The formal notice indicated that the respondent should “take notice” that the Crown intended to introduce evidence pertaining to the trial of the respondent on his “fail to comply” charges, of “certain copies of, and/or original books, records and documents” and, “without limiting the generality of the foregoing,” including “original certified copies of the relevant recognizance” and “court records or documents.” Further, the evidence called by the Crown on the voir dire established that uncertified copies of the various documents were subsequently provided in the disclosure package assembled by the police and provided to the defence, and copies of the court “certified” versions of the documents with the court seals were faxed to the defence on June 21, 2013.
[10] Defence counsel argued that the documents tendered by the Crown were not admissible because “reasonable notice” of the intention to produce them, at least seven days prior to trial, was required by s. 28 of the Canada Evidence Act, and the Crown did not comply with this condition precedent to the admissibility of the documents. Defence counsel contended that, regardless of whether the documents were viewed as “exemplifications” or simply certified true copies, the Crown had to comply with this notice requirement. In advancing this argument, defence counsel relied upon two cases, namely, R. v. Kisun, [2012] O.J. No. 6321 (C.J.) and R. v. Mohamed, 2013 ONCJ 28, [2013] O.J. No. 412. Further, defence counsel argued that the formal notice document that was provided to the accused shortly after his arrest was deficient in providing the respondent with “reasonable notice” as it was too general and did not specify what documents the Crown proposed to tender.
C. The Ruling of the Trial Judge – Excluding the Documents
[11] The trial judge held that the documents tendered by the Crown were not admissible as evidence. The trial judge agreed with the submission made by defence counsel that, regardless of whether the documents were certified copies or exemplifications, the notice provision in s. 28 of the Canada Evidence Act applied. In this regard, the trial judge expressed her agreement with the decision in R. v. Kisun.
[12] Further, the trial judge concluded that the Canada Evidence Act notice that was served on the respondent following his arrest did not provide him with “reasonable notice” of the Crown’s intention to tender these documents as it contained mere “boilerplate.” The notice referred only to copies of the “relevant recognizance” and “court records or documents,” but did not detail the specifics of the documents to be relied upon by the Crown. The trial judge suggested that it would have been “very easy” to identify in the notice what “specific court documents and recognizances” were being relied upon by the Crown.
[13] In addition, the trial judge held that even when copies of the various documents were provided to the respondent through defence counsel, there “was still no relationship” identified between the original notice and the documents. The notice was “never tied to any specific documents” and the documents were not “tied to the notice.” Defence counsel never received any correspondence specifically indicating that “[t]hese are the documents that were referred to in the Canada Evidence Act notice which was served on” the respondent.
[14] The trial judge also observed that when the certified copies of the documents were provided to defence counsel on June 21, 2013, this was “within seven days” of the trial.
[15] As the “appropriate procedure” was not followed, and as there was not sufficient notice to comply with the requirements of the Canada Evidence Act, the trial judge concluded that the documentary evidence tendered by the Crown was not admissible.
D. The Aftermath of the Ruling
[16] Following the ruling by the trial judge, the Crown suggested that the ruling only applied to one of the two “fail to comply” charges, that she had not yet tendered the relevant documents in relation to the “other recognizance” allegedly breached by the respondent, and that she intended to argue that the trial judge should reach a different conclusion in relation to the admissibility of the other set of documents. The Crown conceded that the accused was only served with one Canada Evidence Act notice. She argued, however, that the evidence would show that the court certified documents relating to the other “fail to comply” charge were provided to defence counsel earlier, namely, on June 14, 2013. Further, according to the Crown, these documents were faxed and emailed to defence counsel with accompanying correspondence that more clearly connected the documents to the notice.
[17] The trial judge refused to “reopen” the question of the admissibility of the documentation and permit the Crown to call any further evidence. The trial judge indicated that the Crown had “misunderstood” the ruling. The notice was deficient, said the trial judge, because it did not “particularize” what documents were going to be filed by the Crown. The notice was simply not “specific enough.” The trial judge also confirmed that her ruling was that the notice was deficient irrespective of when other documents, such as recognizances or informations, may have been served or disclosed to the defence. Further, the trial judge indicated that the Crown had been given an opportunity to call its evidence regarding the admissibility of the documents, and had indicated that it had completed the evidence on the voir dire proceeding. The trial judge reaffirmed her ruling that the documents “are not admissible.”
E. Analysis
- Judicial or Court Documents – Originals and Exemplifications
[18] At common law, original judicial or court documents, or exemplifications of such judicial or court documents, were always admissible as evidence, without notice. This long-standing rule of law was based on the notion that courts always had the power to examine their own records and take notice of their contents in proceedings before them. The lack of notice caused no unfairness to any parties to the litigation as, being public documents, original judicial or court documents are always readily available for inspection. An “exemplification” is simply an official, attested true copy of an original public instrument, made under the seal of the court holding or issuing the document, and bearing the original signature of the court functionary or clerk responsible for such certifications. An exemplification is an official “example” of the original judicial or court document created for convenient reference, and so as to preserve the integrity of the original instrument in the possession of the court. Exemplifications are more than mere certified true copies, as they certify that the document is not only true but also genuine. In other words, an exemplification certifies that the document is authentic. See J. Douglas Ewart, Documentary Evidence in Canada (1984), at p. 183; Craven v. Smith (1869), L.R. 4 Ex. 146, at p. 149; Tilton v. McKay (1874), 24 U.C.C.P. 94, at pp. 97-99; Boyle v. Victoria Yukon Trading Co. (1902), 9 B.C.R. 213 (S.C., Full Court), at p. 225; R. v. Kobold (1927), 1927 494 (MB CA), 48 C.C.C. 290 (Man.C.A.); R. v. Hunt, [1986] O.J. No. 1210 (C.A.); J.F. Stephen, A Digest of the Law of Evidence (5th ed., 1887), at pp. 82, 180; J.H. Wigmore, Wigmore on Evidence (Chadburn Rev., 1974), vol. 5, at § 1677, at pp. 855-862, and § 1681, at pp. 919-921; J. Sopinka, S.N. Lederman & A.W. Bryant, The Law of Evidence in Canada (4th ed., 2014) at p. 1265.
- The Provisions of the Canada Evidence Act
[19] According to ss. 23, 28 and 36 of the Canada Evidence Act:
- (1) Evidence of any proceeding or record whatever of, in or before any court in Great Britain, the Supreme Court, the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, any court in a province, any court in a British colony or possession or any court of record of the United States, of a state of the United States or of any other foreign country, or before any justice of the peace or coroner 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.
(2) Where any court, justice or coroner or court stenographer referred to in subsection (1) has no seal, or so certifies, the evidence may be given by a copy purporting to be certified under the signature of a judge or presiding provincial court judge or of the justice or coroner or court stenographer, without any proof of the authenticity of the signature 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.
- 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.
[20] In summary, and for present purposes, s. 23 essentially provides for the admission of any court proceeding or record in any “proceeding” by means of “an exemplification or certified copy” of the proceeding or record, under the seal of the court, without any further proof of authenticity. According to s. 28, where a copy of a book or document is tendered as evidence under the authority of s. 23, it will be inadmissible unless “reasonable notice” is provided to the adverse party at least seven days in advance of the proceeding in which the party intends to produce the book or document. Importantly, however, s. 36 makes it clear that this statutory mechanism for the admission of court proceedings or records is “in addition to and not in derogation of” any powers of proving documents “existing at law.” In other words, such documents may be tendered under the common law rules of admissibility or under the statutory rules of admissibility outlined in the Canada Evidence Act.
III
The Obstruct Police Charge
[47] As I have indicated, the respondent was acquitted of the “obstruct police” charge at the conclusion of the Crown’s case, on a directed verdict motion by the respondent. The trial judge concluded that there was no evidence that “Keashawn Harper,” the name the respondent provided to the police in the early morning hours of February 25, 2013, was a false name. In my view, the trial judge erred in reaching this conclusion.
[48] The legal standard that is to be applied on a “directed verdict” motion at the conclusion of the Crown’s case is well-settled. The legal duty upon the trial Judge is to determine whether or not there is “any evidence” upon which a reasonable jury, properly instructed, could return a verdict of guilty upon the charge against the accused. This standard applies on all applications for a directed verdict, regardless of whether the case against the accused is based upon direct evidence, circumstantial evidence, or a combination of both. Accordingly, on any such a motion, the trial Judge must refrain from assessing the credibility of witnesses, weighing the testimony, considering the quality of the evidence, drawing inferences, or making any determinations of fact. Those are the functions of the trier of fact. See United States of America v. Sheppard, 1976 8 (SCC); R. v. Mezzo, 1986 16 (SCC); R. v. Monteleone, 1987 16 (SCC); R. v. Collins and Pelfrey (1993), 1993 8632 (ON CA); R. v. Arcuri, 2001 SCC 54; R. v. Deschamplain, 2004 SCC 76; R. v. Sazant, 2004 SCC 77.
[49] In my view, applying this legal standard in the circumstances of the present case leads to the conclusion that there was, indeed, at least some evidence upon which a reasonable jury, properly instructed, could find the respondent guilty of the offence of willfully obstructing a police officer in the execution of his duty by providing the officer with a false name.
[50] According to the evidence of the TPS officers who spoke to the respondent in the early morning hours of February 25, 2013, the respondent verbally identified himself as “Keashawn Harper.” However, at the outset of the trial, defence counsel for the respondent formally admitted that the respondent, Tristen Bailey, was in fact the person named in all of the documents that were being tendered by the Crown, and that there was no need for the Crown to call the original arresting police officer to identify the respondent as the person named in those documents. To the extent that this admission may have been contingent upon the admissibility of the documents, having now concluded that the documents were legally admissible, the admission is certainly now applicable. If the respondent is, in fact, the person named in those documents (i.e. that his name is Tristen Bailey), and would have been personally identified by the original arresting officer as that individual, then that is at least some evidence that the respondent provided the police with a false name when he told them that his name was “Keashawn Harper.” I also note in passing that the respondent had a motive to provide the police with a false name. The admissible documentary evidence regarding his operative judicial interim release conditions and his recognizance establishes that the respondent was simply not permitted to be outside his residence in these circumstances.
[51] In summary, I am satisfied that the trial judge erred in concluding that there was no evidence that the respondent willfully obstructed a peace officer in the execution of his duty by providing him with a false name. This conclusion requires that a new trial be ordered in relation to this charge.
IV
Conclusion
[52] In the result, the Crown appeal is allowed, the orders dismissing the information against the respondent are set aside, and a new trial is ordered on all three charges before a different judge of the Ontario Court of Justice. An order shall issue accordingly.
Kenneth L. Campbell J.
Released: September 23, 2014
COURT FILE NO.: 106/13
DATE: 20140923
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
- and -
TRISTEN BAILEY
REASONS FOR JUDGMENT
K.L. Campbell J.
Released: September 23, 2014