R. v. Clarke, 2016 ONSC 575

COURT FILE NO.: CR-15-10000211

DATE: 20160307

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

MARVIN CLARKE and MONIQUE CLARKE

Accused

Christopher Ponesse, for the Crown

Enzo Battigaglia, for the Accused

HEARD: January 11, 12 & 13, 2016

PUBLICATION RESTRICTIONS NOTICE

Pursuant to subsection 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

B.A. ALLEN J.

REASONS FOR DECISION

(Hearing on Admissibility of Business Records)

OVERVIEW

Background to the Admissibility Inquiry

Background to the Charges

[1] The Crown brings this application to seek the admissibility of corporate business records. It is the Crown’s burden on a balance of probabilities to prove admissibility.

[2] The defendant, Monique Clarke, was charged with defrauding her employer of $309,663 and, with her husband, Marvin Clarke, was also charged with possession of proceeds obtained from the fraud.

[3] By way of background, Ms. Clarke was employed with Acxsys Corporation/Interac Association when the allegations of fraud arose. Interac Association is a subsidiary of Acxsys. I will refer to Ms. Clarke’s employer as Interac. Her position in the payroll department of Interac required her to use a desktop computer. For direct deposit of employees’ pay into their bank accounts Interac used the services of ADP, a corporate payroll service provider.

[4] Ms. Clarke’s position involved entering employee payroll data onto an ADP form called a payroll register. ADP provides payroll registries and payroll entries forms for clients like Interac through an ADP website. Ms. Clarke prepared payroll entries reports that summarized the payments which she presented to Interac payroll management, along with the payroll registers, for management’s review and approval. Once approved Ms. Clarke would transmit the data by computer to ADP. ADP would then electronically distribute the monies entered by ADP clients to the clients’ employees’ respective bank accounts for direct deposit. Ms. Clarke also had access to human resources employee change forms containing information about new hires, terminations, salaries and promotions.

[5] The Crown alleges Ms. Clarke used her position at Interac to change information after Interac management’s approval and then submitted fraudulent information to ADP. A deficiency in Interac’s payroll process was that it lacked a reconciliation process to compare the approved information with the information Ms. Clarke provided to ADP.

[6] The Crown alleges Ms. Clarke devised a scheme where she changed the status of “terminated” employees to “active”, changed the ex-employees’ direct deposit bank account numbers, and changed salary amounts which were then deposited into seven different accounts at the four banks. Through production orders directed to those four banks, the police sought and were granted production orders for documents associated with the seven accounts.

[7] The scheme was discovered on February 11, 2014 when BMO informed Interac that the payee name (a former employee of Interac, Jeffrey Lee) for a deposit into a BMO account did not correspond to the account holder, Marvin Clarke. Mr. Lee had been terminated by Interac on January 7, 2013. Ms. Clarke was suspended on February 11, 2014.

[8] Interac retained Deloitte Forensics Inc. and handed over the hard drive from Ms. Clarke’s computer for investigation. Deloitte handed its forensics report over to the police. On December 4, 2014 Det. Crilly applied before a justice of the peace for a production order for each of the four banks – Bank or Montreal (“BMO”), Bank of Nova Scotia (“BNS”), the Royal Bank of Canada (“RBC”) and Toronto Dominion Bank (“TD”) − for the seven accounts at issue. The application was refused due to insufficient bank identification numbers. Det. Crilly re-applied on January 15, 2016 providing the missing information and the production orders were granted.

Two Previous Voir Dires

[9] I conducted two previous voir dires in relation to this trial. The defendants brought an application to challenge the four production orders as being in violation of their rights under s. 8 of the Charter to be secure from unreasonable search and seizure.

[10] I first had to consider the standing issue. I determined Ms. Clarke lacked standing to challenge the production order in relation to one of the impugned accounts, BMO account #3990917, and lacked standing in relation to the other six accounts. Ms. Clarke is not a holder of any of the accounts at issue. Mr. Clarke, jointly with his mother, is a holder of one BMO account, account #3990917, where it is alleged Ms. Clarke unlawfully deposited $39,985. The parties conceded Mr. Clarke’s standing in relation to that account and further conceded that he lacked standing to challenge the production orders for the other six accounts.

[11] On Mr. Clarke’s challenge to the production order for BMO account #3990917, I decided the production order for the records for that account was insufficient for the justice of the peace to have issued that production order. I found the violation of Mr. Clarke’s rights outweighed the need for a trial on the merits for the offence of possession of proceeds and I excluded the bank records for BMO account #3990917 in relation to him.

[12] With the finding on the s. 8 application the Crown indicated there was insufficient evidence to prosecute Mr. Clarke. The Crown sought a dismissal and accordingly I dismissed the charges against Mr. Clarke.

[13] The admissibility hearing therefore proceeded in relation to the charges against Ms. Clarke alone in relation to all seven accounts in the four banks.

ADMISSIBILITY OF HEARSAY EVIDENCE

Non-Compliance with the [Canada Evidence Act](https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-5/latest/rsc-1985-c-c-5.html)

[14] As I understand it, current Crown counsel, Christopher Ponesse, acquired this case for trial in December 2015. There were two previous Crown counsel involved in this case. “A Notice Given Pursuant to the Canada Evidence Act” dated November 30, 2015 notified the defence that the Crown intended to adduce the records of the four banks and the records of Interac Association/Acxsys Corporation that were provided to Deloitte.

[15] In relation to Acxsys/Interac, the notice requested payroll register documents and payroll entries reports. No notice to disclose ADP documents was given. During the pre-trial proceedings, Mr. Ponesse became aware that the payroll registers and payroll entries reports were ADP documents housed in ADP computer databases, and not Interac documents.

[16] It is Ms. Clarke’s duties in relation to the payroll registers and the payroll entries reports that are under scrutiny in this trial and that underlie the Crown’s case against her. Thus, the ADP records are critical to the Crown’s case.

[17] A business record is hearsay. Hearsay evidence is presumptively inadmissible. Section 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“the CEA”) sets out statutory requirements for the admission of business records made in the usual and ordinary course of business and provides the conditions where the creator of the business records need not be called to testify as to the authenticity of their contents. Those prerequisites must be satisfied for the admission of business records without the need to call a witness to attest to their authenticity.

[18] The Crown concedes the request for admission of the ADP records does not comply with the provisions of the CEA, in particular, sections 30(3) and 30(7). The latter provision requires the Crown to give at least seven days’ notice to the defence before production. There is some discretion in the court to waive the notice period.

[19] The more critical non-compliance is in relation to s. 30(3). Section 30(1) of the CEA provides, where evidence from a witness would be admissible in relation to a matter, a business record made in the ordinary course of business is admissible as an exception to hearsay. Section 30(2) allows the court to admit a record produced in the ordinary course of business to prove that a matter expected to be contained in the record is not in the record.

[20] Section 30(3) provides for the admission of a copy of a record with the satisfaction of a prerequisite. That prerequisite is where it is not possible or practicable to produce a record as described in subsection (1) or (2), an affidavit or certificate that attests to the copy’s authenticity and that attests that the affidavit or certificate was made by the person who made the copy, is admissible in evidence in the same manner as if it were the original of the record.

[21] The Crown did not file an affidavit or certificate so it cannot avail itself of the CEA as a way to avoid the restrictions of the hearsay rule. The CEA makes provision for the common law to apply where the CEA is not available. Section 30(11) provides that the CEA provisions are in addition to, and not in derogation of, any other legislation or existing rule regarding the admissibility and proof of evidence in any record. Thus, the common law can apply where the statute is not available. The common law does not require notice. The Crown seeks to rely on common law rules to permit the admission of the ADP records.

The Bank Records, Admissible under the Canada Evidence Act

[22] Regarding the bank records from BMO, RBC, BNS and TD, there is no dispute. The bank records for the seven accounts from the four banks of the seven Interac employees were properly disclosed pursuant to s. 30 of the CEA. There is no issue that the bank records are acceptable as an exception to the hearsay rule.

The Common Law and the Admissibility of Hearsay Evidence

Basic Tenets

[23] Hearsay is not admissible absent a rule that allows for an exception. It is trite law that the chief concern with hearsay evidence is the inability to test its reliability. Our adversarial system depends on persons who are the makers of statements being available at trial to be cross-examined under oath to test the truth of their statements. Only such statements offered for their truth transgress the rule against hearsay. Out-of-court statements not offered for their truth but simply for the fact the statement was made or for a reason not relating to its truth are not hearsay. Statements of this type are admissible for a limited purpose if relevant and of some probative value.

[24] Over the years the common law has developed many complex and rigid exceptions to the hearsay rule that too often have excluded evidence valuable to the trier’s search for the truth at trial. McLachlin, J., as she then was, for the Supreme Court of Canada in R. v. Khan departed from reliance on the rigid common law rules in favour of a more flexible approach based on an assessment of the necessity and reliability of the evidence: [R. v. Khan, 1990 CanLII 77 (SCC), [1990] 2 S.C.R. 531]. One academic text explained the rationale for the more flexible approach:

The principle of necessity arose from the choice of either receiving the evidence untested or losing the evidence entirely. In assessing the reliability of evidence, what was looked for was some substitute for cross-examination to support the trustworthiness of the statement.

[David M. Paciocco and Lee Stuesser, The Law of Evidence, 4th ed., p. 107 (Toronto: Irwin Inc., 2005)]

[25] Necessity in this regard is not necessity for the Crown’s case but refers to the necessity of the hearsay evidence to prove a fact in issue: [R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915; 75 C.C.C (3d) 257, at p. 271, (S.C.C.)]. If the party who seeks to rely on the evidence cannot satisfy the twin criteria of necessity and reliability, the general exclusionary rule prevails. The trial judge acts as the gatekeeper in assessing “threshold reliability” of hearsay at the admissibility stage and leaves the ultimate decision about its worth to the trier of fact at trial: [R. v. Khelawon, 2006 SCC 57, [2006] 2 S.C.R. 787, at para. 3, (S.C.C.)].

[26] Charron, J., as she then was, for the Supreme Court in Khelawon departed from the earlier dichotomous treatment of “threshold” and “ultimate” reliability. An earlier case, R. v. Starr, held that circumstances “extrinsic” to the taking of a statement go to ultimate reliability only, not to be considered by the judge deciding admissibility: [R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.)]. Khelawon held, at para. 4, that the factors to be considered in determining reliability cannot simply be categorized in terms of threshold and ultimate reliability. The scope of the inquiry must be adapted to the particular dangers presented by the evidence and must be limited to deciding the evidentiary issue of admissibility.

[27] What Khelawon advocates at paras. 56 - 58 is a functional approach to determining reliability. The Court outlines steps in applying this approach:

(a) Before embarking on the admissibility inquiry it must first be determined whether the proposed evidence is hearsay based on whether: (i) the out-of-court statement is being adduced for its truth; and (ii) there is an absence of an opportunity for contemporaneous cross-examination of the declarant.

(b) Consideration must be given to the purpose for which the evidence has been adduced. Only when the evidence is adduced for its truth will it constitute hearsay. This should be considered in the context of the issues in the case so the court can better assess the potential impact of introducing the evidence as hearsay.

(c) At the outset regard must be had to the absence of the opportunity for contemporaneous cross-examination because this goes directly to the reliability of evidence that cannot be tested.

[28] The presumptive inadmissibility of hearsay is based on the dangers associated with its trustworthiness. Under the principled approach the reliability requirement is directed to identifying cases where the inability to test the evidence is sufficiently compensated for to warrant receiving the evidence as an exception to the general hearsay rule: R. v. Khelawon, at para. [61]. The absence of the opportunity to cross-examine goes to the weight given this evidence not its admissibility.

[29] The reliability requirement can be met in two ways: (a) if sufficient trust can be put in the truth and accuracy of the statement because of the way the statement came about; or (b) if no concern arises in relation to a statement in hearsay form because in the circumstances its truth and accuracy can still be tested. The chief concerns are that untested and potentially untrustworthy evidence not be put before the trier, on one hand, and, on the other hand, that the benefit of the evidence not be lost when there are adequate “substitutes” for testing the evidence: R. v. Khelawon, at paras. [62 and 63].

[30] Underlying the presumptive exclusion of hearsay evidence are considerations of truth-seeking, judicial efficiency and fairness in the adversarial process. At paragraph 50 the Court in Khelawon quotes R. v. Starr:

By excluding evidence that might produce unfair verdicts, and by ensuring that litigants will generally have the opportunity to confront adverse witnesses, the hearsay rule serves as a cornerstone of a fair justice system.

R. v. Starr, at para. [199]

[31] With the functional approach then the inquiry into whether the reliability requirement can be met in either of the two ways cited requires scrutiny of the factual context in which the statement or evidence arose or was created. This approach is directed to an examination of whether there are “sufficient circumstantial guarantees” for reliability to establish a threshold of reliability to make it safe to admit the evidence: [R. v. Khelawon, at paras.79 and 80]. The assessment of reliability and necessity at the admissibility stage must have regard to the particular factual context of the statement with a view to the particular concerns raised by the evidence. The ultimate reliability of the evidence is determined at trial by the trier of fact.

[32] In assessing the “substitutes” to testing evidence by cross-examination in deciding threshold reliability, courts have considered certain badges of trustworthiness, for instance: (a) whether there is a motive to lie: [R. v. Khan]; whether the traditional dangers associated with hearsay evidence, perception, memory and credibility, are present to any significant degree: [R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915 (S.C.C.)]; prior inconsistent statements of a non-accused witness who was available to be cross-examined had been videotaped but not under oath: [R. v. B. (K.G.), 1993 CanLII 116 (SCC), [1993] 1 S.C.R. 740 (S.C.C.)]; to determine admissibility a comparison of the similarities between the complainant's unadopted prior inconsistent statement to the police and the accused's unadopted statement to the police was allowed: [R. v. U. (F.J.), 1995 CanLII 74 (SCC), [1995] 3 S.C.R. 764 (S.C.C.)]; and the factual context to be considered is not limited to only the circumstances surrounding the making of the statement; other corroborating evidence to establish reliability can be considered: R. v. Khelawon, at para. [100].

[33] There is an important distinction between the admissibility of evidence and the weight to be given to it.

[34] Admissibility is a question for the judge to decide. A witness with knowledge of a record may testify on admissibility on a voir dire before a judge. If the evidence is ruled admissible the witness may also testify at trial as to its weight. In a trial by jury weight is a question of fact for the jury to determine. In a trial by judge alone the same judge decides admissibility and weight: R. v. Khelawon, paras. [90 and 91]. In this situation the judge is exercising two independent and separate roles where admissibility and weight remain separate: [In R. v. Gauthier, 1975 CanLII 193 (SCC), [1977] 1 S.C.R. 441, at p. 448, (S.C.C.)].

Business Records

General Principles

[35] The Supreme Court of Canada in Ares v. Venner sets out the common law criteria that can allow a business record to be admitted as an exception to hearsay. The record must be:

(a) an original entry [or an oral statement];

(b) made contemporaneously [with the thing recorded]

(c) in the routine of business

(d) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it

(e) who had a duty to make the record, and

(f) who had no motive to misrepresent

[Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608 (S.C.C.)]

[36] Hall, J., as he then was, held:

Hospital records, including nurses’ notes, made contemporaneously by someone having a personal knowledge of the matters then being recorded and under a duty to make the entry or record, should be received in evidence as prima facie proof of the facts stated therein. This should, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. …

[Ares v. Venner, at p. 362, my emphasis]

[37] The common law requires neither notice nor an affidavit nor a certificate attesting to the authenticity of the record or attesting that it was made by the person who made the copy. As a general principle, in deciding whether at common law a statement or record can be admitted, the authenticity and the creator of the record must be proven by evidence on the admissibility inquiry.

[38] Ares v. Venner was decided decades before the common use of computers in a business context. The requirement to prove the creator of a record in the modern world of electronic record keeping raises new inquiries when considering computer-generated business records.

[39] A nineteenth century authority recognized a criterion beyond those set down by Ares v. Venner which has been developed and applied in modern times. The Supreme Court of Canada found a person with the duty had “caused” an entry in a record to be made: [Canadian Atlantic Railway Co v. Moxley, 1888 CanLII 2 (SCC), [1889] 15 S.C.R. 145 (S.C.C.)].

[40] One can see the applicability of Moxley to modern business records. These records are frequently compiled from original source data such as sales slips, invoices, purchase orders, or other original data entered by the many often nameless persons routinely tasked to do this in a business context – information that would scarcely have been compiled by the person who prepared the original documents. In daily business practice records compiled in this way are customarily accepted as valid and reliable sources of information by persons affected by the records.

[41] The Alberta Court of Appeal echoed Moxley when considering the admissibility of oral evidence of entries in payroll records. The witness, who was a payroll manager, had extracted portions of a larger payroll record and read them into the record. The Court found the payroll records admissible even though the payroll manager had no personal knowledge of the information and did not produce the original records. The Court found the records to have been made in the ordinary and usual course of business: [R. v. Monkhouse, 1987 ABCA 227, at para. 24, (Alta. C.A.)].

[42] Paciocco and Stuesser commented on the rationale underlying the common law rule on the reliability of business records:

The principle is sound. The reliability of the records is premised on the notion that they are prepared by persons under “business duty”; where a person provides information gratuitously, the record loses its stamp of trustworthiness.

[Paciocco and Stuesser, The Law of Evidence, p. 162]

[43] Paciocco comments further in an article on proof of reliability with computer-generated records:

Although in Ares v. Venner the Supreme Court of Canada held that the recorder had to have personal knowledge, in R. v. Monkhouse the Court accepted a compiled record of employment made by someone without personal knowledge where the person originally recording the employment information would evidently have been under a business duty as well. This is sensible.

[David M. Paciocco, “Proof and Progress: Coping with the Law of Evidence in a Technological Age”, (2013) 11 Canadian Journal of Law and Technology, 181, at 214]

Electronic Business Records

[44] The British Columbia Supreme Court dealt with the admissibility of computerized billing records and employee credit applications that were passed on by an employee of an electronics store to the accused. An investigator retrieved the records by accessing the information from the computer mainframe and printed them off. Some of the records were found to have been created by human input of data into the computer and some lacked human input. The defence argued the records were inadmissible because of the absence of someone who could testify as to the reliability of the computer records: [See R. v. Hall, [1998] B.C.J. No. 2515 (B.C.S.C.)].

[45] R. v. Hall concluded that records generated by computers without human intervention are non-hearsay and are admissible as real evidence rather than as statements made by persons. A witness qualified to explain how the device operates is all that is required for admissibility. Records produced with human intervention are classified as hearsay at common law but are admissible if they fit within an exception to the hearsay rule and possess inherent qualities of trustworthiness: [See R. v. Hall, paras. 63 - 66].

[46] In R. v. McCulloch the British Columbia Provincial Court dealt with the admissibility of telephone records. At paragraph 18, the court said:

Where evidence is automatically recorded by any means, other than by human labour, and the evidence so recorded can be reproduced in any form, intelligible to the human mind, the reproduction is admissible as real evidence. The recording may be mechanical, chemical, electronic, photographic, or auditory, to name a few examples, and the reproduction may be by computer printout, audiovisual playback, photographs, or other means. The weight to be attached to such evidence will depend on the accuracy and integrity of the process employed.

[R. v. McCulloch, [1992] B.C.J. No. 2282, at para. 18, (B.C.P.C.)]

[47] The record must be authenticated. Authentication requires a person offering an electronic record as evidence to lay a foundation for its admissibility by presenting to the presiding judge evidence that the record is what the person claims it to be: [Ross v. Redl Estate, 2008 SKQB 298, [2008] SKQB 298, [2009] 3 W.W.R. 166, paras. 26 and 27, (S.K.Q.B.)].

Authentication

Basic Principles

[48] Cases that address authentication and admissibility, particularly electronically produced records and statements, are not plentiful in Canadian jurisprudence. Black’s Law Dictionary (10th edition) defines authentication for the purposes of the law of evidence as: “the act or mode of giving authority or legal authenticity to a statute, record, or other written instrument, or a certified copy thereof, so as to render it legally admissible in evidence.”

[49] In R. v. Evans the Supreme Court of Canada discussed the authenticity of a statement by one person in relation to a statement by another person where the Crown was attempting to attribute a statement to the appellant and admit it at trial: [R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653 (S.C.C.)].

[50] In that case, two males were charged with robbery and attempted murder. A husband and wife testified that the male who bought a car from them told them that he worked in chain‑link fencing. The wife testified that the man said he had big dogs and the husband testified that the man said his dog was going to have pups.

[51] Sopinka, J. , as he then was, for the Court in R. v. Evans clarifies that a determination on authentication and a decision on ultimate truth occur at two different stages in a proceeding:

A preliminary issue as to the authenticity of a statement which is sought to be attributed to a party may also arise and may relate to whether the statement was actually made or whether it was made by the party against whom it is tendered. This preliminary determination that the statements were those of the accused, or that the accused was in a position to make the statements, is required before the statements can be accepted as evidence of their truth. As in questions of admissibility, the appropriate standard for determining a preliminary question of fact as to authenticity is proof on a balance of probabilities. The standard is the same in the two cases regardless of the fact that the preliminary determination is shifted to the fact-finding stage of the trial.

In light of this approach regarding the authenticity of admissions, if there is some evidence to permit the issue to be submitted to the trier of fact, the matter must be considered in two stages. First, a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused. If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt. In the second stage the contents are evidence of the truth of the assertions contained therein.

[R. v. Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653 (S.C.C.)]

[52] Authentication then must be proven at a preliminary admissibility stage and an evaluation of the truth of the evidence is left to the trial stage where guilt or innocence is determined.

Authentication and Admissibility

[53] There is a distinction between “authentication” of a record or a statement and its “admissibility”.

[54] Authentication amounts to proof that a record is what it purports to be, that it is an original or a genuine copy. As is clear from the discussion above, both statutory and common law exceptions to hearsay require additional proof to make the contents of the records admissible. The determination of a preliminary question of fact in respect of both authenticity and admissibility is a preamble to considering the contents of the statement as proof of the truth therein. R. v. Evans addresses the degree of proof of authentication required at the admissibility stage.

[55] R. v. Evans endorsed an American legal text for the proposition that only a prima facie demonstration of authenticity need be established at the admissibility stage and the ultimate question of authenticity is to be left for the trier of fact at trial:

…the authenticity of a writing or statement is not a question of the application of a technical rule of evidence. It goes to genuineness and conditional relevance. If a prima facie showing is made, the writing or statement comes in, and the ultimate question of authenticity is left for the jury: [McCormick, Charles Tilford, McCormick on Evidence, vol. 2, 4th ed. (edited by John William Strong) (St. Paul, Minn.: West Publishing Co., 1992), as cited in R. v. Evans, my emphasis].

[56] Thus, at the admissibility stage the threshold for authentication is not high. A prima facie showing is all that is necessary.

[57] Authenticity and authentication pose interesting challenges to the law of evidence in relation to the admissibility of electronic records. Paciocco addresses deficiencies in the law of evidence and the new concerns confronting the judiciary in the modern reality of technological progress:

We need to leave our rules and principles open enough to accommodate new technologies and the culture they bring about, lest the law of evidence become irrelevant. To achieve this we will, for example, have to find comfort in weighing rather than excluding evidence to cope with continuity concerns. We will also have to take a functional approach to judicial notice and expert evidence lest our trials get bogged down or defeated by insistence, where it is not truly required, that technological experts testify. Ultimately the law of evidence is a tool-kit used in a practical enterprise — the resolution of conflicts through adjudication. It has to operate in the real world as it is, not as it was. We will make it fit because we must, but take heart in knowing that the changes required are modest at best and few are conceptual or elusive.

[David M. Paciocco, CJLT, vol. 11, p. 183]

[58] Paciocco further suggests:

Courts should take a functional approach to judicial notice that will permit them to cope with technology that is broadly relied upon by ordinary persons. This includes accepting, without the need for proof, the capabilities and operation of new technologies that are broadly used or understood by members of the public.

[CJLT, vol. 11, p. 226]

Authentication by Comparison to other Evidence

[59] R. v. Evans’s treatment of the suspect’s statement in relation to statements by others provides authority that authentication may be accomplished by circumstantial evidence. A fuller account of the facts in R. v. Evans follows:

[60] Witnesses were able to identify one of the robbers as one of the co-accused and the other robber was not identified. The getaway car had been purchased two days earlier from a married couple. A male who matched the appellant's physical and facial description had made two visits to their house before he actually purchased the car. Neither the husband nor the wife was able to make a positive photographic or dock identification.

[61] The two statements attributed by the husband and wife to the appellant were at issue. Both testified that the male who bought the car told them that he worked in chain‑link fencing. The wife testified that the male said he had big dogs and the husband testified that the male said his dog was going to have pups. Subsequent evidence showed that the appellant had a large dog that was going to have pups and that he had been employed as a chain‑link fencer.

[62] The factual background surrounding the purchase of the getaway car, and the husband’s and wife’s evidence which directed the statements to the appellant, form a circumstantial backdrop for establishing the authenticity of the accused’s statements. The Court found at the authentication stage of connecting the statements to the appellant that the statements could be accepted for a non-hearsay use. The statements were used as probative of the identity of the appellant and not for their truth.

[63] In support of the use of circumstantial evidence for authentication, the Court in R. v. Evans cited a reference in McCormick on Evidence at p.p. 51 - 52: "authentication may be accomplished by circumstantial evidence pointing to X's identity as the caller, such as if the communication received reveals that the speaker had knowledge of facts that only X would be likely to know."

[64] Morden, J.A., as he then was, for the Ontario Court of Appeal in R. v. Brown also addressed circumstantial evidence a judge on an admissibility hearing can consider in deciding the authenticity of a videotape recording. On Trafford, J.’s admissibility decision, the appeal court held:

In my view, the trial judge did not err. As he said, the videotape evidence was admissible if it accurately and fairly presented the information it purported to convey. He could easily reach the conclusion that it did by viewing the videotape against the backdrop of the expert and other evidence. He explained why he reached his conclusion based on the expert and other evidence. He also explained why he discounted the opinions of the defence expert. I expect that the trial judge’s reference to the appearances of the accused in the courtroom was nothing more than a way of checking the decision he made based on the other evidence. Had he been the trier of fact, the trial judge would have been required to compare the appearance of the accused in court with the appearances of the perpetrators on the videotape. Similarly, at the stage of threshold reliability, the trial judge was entitled to make the same comparison. He did not begin his analysis from the impermissible starting point that the accused must be the perpetrators depicted in the videotape.

[R. v. Brown, 2006 CanLII 42683, at para. 34, (ON CA); see also R. v. Andalib-Goortani, 2014 ONSC 4690, at para. 26, (Ont. S.C.J.)]

[65] Trotter, J., of the Ontario Superior Court, in R. v. Andalib-Goortani conducted a hearing into the authenticity of a photograph. A Toronto police officer was alleged to have assaulted the complainant with a weapon during the G20 summit in Toronto in the summer of 2010. The photograph alleged to depict the police officer was anonymously uploaded to a computer. Trotter, J. considered the complainant’s evidence and expert evidence called by the Crown and defence and decided the photograph could not be authenticated. Trotter, J. held:

Materials taken from websites and offered as evidence in court must be approached with caution, especially in a case such as this where no one is prepared to step forward to say, “I took that photo and it has not been altered or changed in anyway.” Several U.S. cases warn about the possibility of tampering in this context. In People v. Beckley, 110 Cal. Rptr. (3d) 362 (Ct. App. 2010), the Court expressed concern about the dangers of unauthenticated digital images at pp. 515-516:

Recent experience shows that digital photographs can be changed to produce false images.… Indeed, with the advent of computer software programs such as Adobe Photoshop “it does not always take skill, experience, or even cognizance to alter a digital photo.” (Parry, Digital Manipulation and Photographic Evidence: Defrauding The Courts One Thousand Words At A Time” (2009), 2009 J. L. Tech. & Pol’y 175, 183).

R. v. Andalib-Goortani, at para. [33]

[66] Thus, the possibility of modifying electronic records is a matter of some concern.

[67] As will be discussed more fully below, the Crown called an ADP representative who works in customer service to testify about the ADP records under review. He testified that ADP’s online records system left open the possibility that ADP’s personnel could improperly access the online records and make changes to the data. The ADP witness did testify however that he was not aware of that ever happening.

[68] Unlike the circumstances in Andalib-Goortani, there is no evidence before the court, at least at this preliminary stage, that any type of tampering or manipulation had occurred with the ADP records. In Andalib-Goortani, evidence was adduced that changes were made to the image which concerned the defence expert that the photograph had been tampered with or altered, as the Court found, in perhaps not so innocuous a way.

The Possibility of Manipulation of Electronic Data

[69] An American civil case tackled the issue of the “possibility” of the integrity of e-mail data being manipulated as a ground to deny admissibility. I found what the American court had to say instructive in addressing an argument the defence raised in the case at hand. The American court noted that the mere fact that electronic data can be manipulated is not a substitute for hard evidence that the documents were manipulated or immediate grounds for exclusion. United States v. Safavian held:

The possibility of alteration does not and cannot be the basis for excluding e-mails as unidentified or unauthenticated as a matter of course, any more than it can be the rationale for excluding paper documents (and copies of those documents). We live in an age of technology and computer use where e-mail communication now is a normal and frequent fact for the majority of this nation’s population, and is of particular importance in the professional world. The defendant is free to raise this issue with the jury and put on evidence that e-mails are capable of being altered before they are passed on. Absent specific evidence showing alteration, however, the Court will not exclude any embedded e-mails because of the mere possibility that it can be done.

[United States v. Safavian, 435 F. Supp. 2d 36 at 41(D.D.C. 2006) emphasis by author]

[70] With many types of electronic data the potential for manipulation is a reality. Were this type of evidence classified as inadmissible by mere virtue of the possibility it could be modified, none of this evidence would ever see the light of a trial. It is left for the trier of fact at trial to determine its weight with this, among other considerations, in mind. Paciocco commented:

The point is that fear of what is new cannot be allowed to impede the incorporation of newer technologies. After all, law is a practical discipline and it functions in the real world. It would be unrealistic to reject electronic documents and emails, notwithstanding realistic fears of ease of manipulation.

[Paciocco, CJLT, vol. 11, p. 183]

Finding Authenticity before Finding a Record is a Business Record

[71] Cases on admissibility decided under the CEA have held that s. 30 does not pre-authorize the admission of every record made in the ordinary course of business. Authenticity must be established before consideration of whether the record is a business record made in the ordinary course of business. A decision must first be made whether the record is what it purports to be.

[72] It is reasonable to apply the same principle to common law determinations of whether a business record is admissible as an exception to hearsay.

[73] Ares v. Venner found that records which meet the prerequisite criteria “should be received in evidence as prima facie proof of the facts stated therein.” The Court held this preliminary determination should not operate as bar to a challenge to the accuracy of the records or entries. Therefore an authenticity inquiry can be engaged to inform, and be a preamble to, the admissibility of the record.

[74] The Ontario Court of Appeal addressed this issue in a case decided in the formative years of computer use.

[75] R. v. Bell and Bruce considered the authenticity of a computer printout of monthly bank records. The Court decided the new online bank record, though different in form from the traditional handwritten ledgers was, nonetheless, an authentic bank record. The finding of authenticity was a preamble to the Court’s conclusion that the printouts were business records ordinarily used by banks in the banking industry: [R. v. Bell and Bruce (1982), 1982 CanLII 1970 (ON CA), 65 C.C.C. (2d) 377 (Ont. C.A.)].

Summary of Principles on the Admissibility of Electronic Business Records as Exception to Hearsay

Necessity

[76] As noted earlier, R. v. Smith held necessity does not refer to necessity for the Crown’s case. Necessity, as one of the twin requirements to admissibility, refers to the necessity of the hearsay evidence to prove a fact in issue. The necessity issue is not controversial in this case. There is no dispute that the ADP records are critical to proving the facts of Ms. Clarke’s involvement in the fraudulent scheme against Interac. The necessity requirement is satisfied.

Summary of Common Law on Authentication and Reliability

[77] Reliability remains to be determined. I believe from the above discussion certain common law principles can serve as a foundation for determining the admissibility of the ADP records. I summarize these as follows:

(a) Records that meet the Ares v. Venner criteria should be received in evidence as prima facie proof of their contents; but this does not preclude a challenge to their accuracy: [Ares v. Venner].

(b) Authentication is proof that a record is what it purports to be, that it is an original or a genuine copy. Both statutory and common law exceptions to hearsay require additional proof to make the contents of the records admissible: [R. v. Evans].

(c) Before the ADP records can be determined to be business records at common law, the records may be required to first be authenticated, that is, proven to be what they are said to be: [Ares v. Venner and R. v. Bell and Bruce].

(d) The determination of a preliminary question of fact in respect of both authenticity and admissibility is a preamble to considering the contents of the statement as proof of the truth therein: [R. v. Evans].

(e) A determination on authentication and a decision on ultimate truth occur at different stages in a proceeding: [R. v. Evans].

(f) Only a prima facie demonstration of authenticity need be established at the admissibility stage and the ultimate question of authenticity is to be left for the trier of fact at trial: [Ares v. Venner and R. v. Evans].

(g) Authentication may be accomplished by circumstantial evidence from the factual background surrounding the making of the statement: [R. v. Evans, R. v. Brown and R. v. Andalib-Goortani].

(h) The fact there is a possibility an electronic document can be manipulated is not a substitute for hard evidence that the document was manipulated or immediate grounds for exclusion. It is for the trier of fact to determine its weight with this consideration in mind: [United States v. Safavian, Paciocco, CJLT, vol. 11].

(i) In determining admissibility, records are admissible even though the proponent has no personal knowledge of the information and did not produce the original record: [R. v. Moxely and R. v. Monkhouse].

(j) Records produced with human intervention are classified as hearsay at common law but are admissible if they fit within an exception to the hearsay rule and possess inherent qualities of trustworthiness: [R. v. Hall].

(k) Determining admissibility is concerned with an assessment of whether “sufficient circumstantial guarantees” for reliability are present to establish a threshold of reliability to make it safe to admit the evidence: [R. v. Khelawon].

(l) The assessment of reliability and necessity of evidence at the admissibility stage must have regard to the specific factual context of the evidence with a view to the particular concerns raised by the evidence. The ultimate reliability of the evidence is determined at trial by the trier of fact: [R. v. Khelawon].

(m) Admissibility is a question for the judge to decide. A witness with knowledge of a record may testify on admissibility on a voir dire before a judge. If the evidence is ruled admissible, the witness may also testify at trial as to its weight. In a trial by jury, weight is a question of fact for the jury to determine and, in a trial by a judge alone the same judge decides admissibility and weight: [R. v. Khelawon].

(n) To establish reliability the factual context to be considered is not limited to only the circumstances surrounding the making of the statement. Other corroborating evidence to establish reliability can be considered: [R. v. Khelawon].

CROWN’S APPLICATION TO RE-OPEN TO CALL DET. CRILLY ON THE ADMISSIBILITY HEARING

[78] The closing submissions on the admissibility hearing took a rather unusual route. Crown counsel was part way through his submissions when he realized no evidence on the bank records had been called in the admissibility hearing. On the earlier s. 8 voir dire, Det. Crilly testified about, and the affidavit contained, information on the bank records obtained through the production orders.

[79] The Crown needed Det. Crilly’s evidence on admissibility and requested to re-open the Crown’s case to allow him to testify. The defence challenged the Crown’s application.

[80] I allowed the Crown’s application for the following reasons:

[81] It is within the discretion of the trial court to allow a party to re-open its case. Most of the case law addresses applications by the Crown to re-open its case at trial. From the perspective of a trial, the standard in exercising the discretion will depend on what stage in the trial the application is made.

[82] The focus in allowing re-opening is on rectifying an oversight or inadvertence provided there was no prejudice to the accused: [R. v. Robillard, 1978 CanLII 200, [1978] 2 S.C.R. 728 (S.C.C.)]. The Ontario Court of Appeal set down three factors to consider: (a) whether the evidence is relevant to a material issue; (b) potential prejudice to the opposing party; (c) the effect of re-opening on the expeditiousness of the trial: [R. v. Hayward, (1993) 1993 CanLII 14679 (ON CA), 86 C.C.C. (3d) 193 (Ont. C.A.)].

[83] The Supreme Court of Canada held that the scope of a trial judge’s discretion to allow the Crown to re-open its case grows narrower as the trial proceeds due to the increasing likelihood of prejudice to the accused’s defence as the trial advances. The Court discussed the increasing prejudice and the narrowing of discretion as the re-opening is requested at later stages in a trial proceeding. The stages considered were: (a) before the Crown has closed its case; (b) when the Crown has closed its case and before the defence has elected whether or not to call evidence; (c) where the defence has already begun to respond to the Crown’s case: [R. v. G. (S.G.), 1997 CanLII 311 (SCC), [1997] 2 S.C.R. 716, at para. 30, (S.C.C.].

[84] My first observation was that the Crown’s request came during a pre-trial proceeding and not at the trial proper. I find this naturally reduces prejudice to the defence in relation to the trial and its right to make a full and fair defence. Applying the stages analysis in the context of where the admissibility proceeding had progressed at the time of the Crown’s application, it is the case that the defence had called no evidence and the Crown had not closed its case on admissibility. Crown counsel had not completed his closing submissions. I also considered the fact that Det. Crilly was to testify in a narrow area relevant to a material issue in the case and for those reasons his evidence was important and would not unreasonably prolong the proceeding.

[85] Det. Crilly testified in-chief with no cross-examination by the defence. Crown counsel then completed his closing submissions, followed by the defence’s closing.

ANALYSIS

The ADP Records

ADP’s Services

[86] The Crown argues the ADP payroll registry records (the “PRs”) and the payroll entries records (the “PERs”) from the four banks and seven banks accounts are business records that should be admitted as an exception to hearsay.

[87] The Crown called Stephen Boon who has been a manager in Client Services with ADP for 12 of his 14-year employment there. Mr. Boon described ADP’s normal everyday functions in providing payroll services to clients like Interac.

[88] ADP provides its online products through its website and for the most part it is the client that enters its payroll data such as employee names, employee banking information for direct deposit, salaries, deductions and benefits, etc. Mr. Boon testified he is familiar with ADP forms and the types of services provided to clients. He manages the department that responds to clients’ queries and questions and when requested, in exceptional circumstances, his department assists with inputting payroll data for clients.

[89] Once the client enters its payroll information into the ADP PRs and PERs, Client Services then activates the “submit” function on the ADP program. ADP generates final reports that are sent to ADP’s computer mainframe. The client is afforded the opportunity to review the final reports generated by ADP from the entered information before Client Services submits it to ADP’s computer records.

[90] After the submit button is pressed, ADP’s computer program then begins moving the client’s funds and distributing them to the banks of employees for direct deposit. Once the submit button is pressed on ADP’s end, there is no further opportunity by ADP personnel or the client to input additional payroll information.

[91] But before “submit” is pressed additional information can be entered. Mr. Boon described what he referred to as a rare situation where the client might contact Client Services by phone before submit is activated and verbally authorize changes in the information. Client Services then inputs the information on behalf of the client. Clients who contact ADP by phone are required to go through a security process. A client must provide verification information to validate whether they are a client and to ensure their information matches information in ADP’s system.

[92] Therefore, in general, the human input in the ADP system is by the client’s payroll personnel entering payroll data before ADP submits the data. Exceptionally, in the window between input and submit, Client Services, on the authorization of the client, can make changes to the information. The client would not be able to see any changes made by Client Services until ADP generates the final report enabling the client to compare its data with the final report.

Contents of ADP Records

[93] Mr. Boon gave detailed testimony about the PRs and the PERs the Crown seeks to put in evidence. He confirmed that these are the types of records used in the ordinary and usual course of ADP’s payroll services.

[94] The headers of both the PERs and PRs contain the name of the company, “ADP Canada Payroll Technologies” and the type of report, either “Payroll Entries Report” or “Payroll Registry”. Both types of reports contain the client name, Acxsys Corporation. The PERs contain the company code number for Acxsys Corporation, the pay dates, period end dates, and the run dates for the reports. The PRs contain the address for Acxsys Corporation and the date of the report.

[95] The bodies of both the PERs and PRs are formatted in rows and columns containing detailed information. The PERs contain employee names (some redacted), information about events related to the pay such as adjustments and changes, employee numbers, and the batch and sequence numbers for the report. The PRs contain pay periods, pay dates, the names of employees, their earnings including, bonuses, benefits, expenses and deductions including deductions for taxes, CPP, etc.

[96] The PERs and PRs sought to be admitted contain the personal payroll information for ten different employees covering dates in 2013. Included among the employees’ names are Monique Clarke and Jeffrey Lee. Mr. Lee is alleged to be an ex-employee whose name Monica Clarke is alleged to have used in her fraudulent scheme.

[97] Mr. Boon described the purposes of the PERs and PRs and explained their contents.

[98] He testified that a PER is one of the types of final reports provided by ADP to the client after ADP submits the client’s payroll information. The purpose of a PER is to confirm the specific entries made by the client in relation to a specific payroll. A PER is system-generated by ADP from information provided by the client with no human input by ADP. PRs are another final report generated by ADP after submission to inform the client of the current payroll totals of earnings, deductions, benefits, bonuses, etc., for each employee for a specific payroll.

[99] Mr. Boon gave detailed testimony and was conversant on the majority of the various acronyms, code numbers and short forms of words on both the PERs and PRs. He explained the figures recorded on both types of reports. He testified he did not create the reports.

[100] Mr. Boon testified that prior to trial he had not seen the records before the court. He said he was not familiar with the particular information on those records. He indicated ADP’s payroll reports are stored electronically with ADP, are immediately available to clients, and do not normally appear in print form. They are generally viewed on computer monitors.

[101] Mr. Boon indicated he did not print off the records. Nor did he personally retrieve the documents from the ADP computer mainframe. He indicated he could not confirm the veracity of the contents of the reports and he could not verify if the documents before the court were produced from the mainframe. He agreed with defence counsel that the ultimate accuracy of the information on the reports depends on the accuracy of the person who input the information.

[102] However Mr. Boon testified the documents in terms of their format, layout and the types of information captured appear to be those produced by ADP for its clients.

[103] Mr. Boon explained that within hours of submission the client can access both of these types of reports. He also stated that there is a 48-hour window before submission wherein ADP could cancel a payment if a client wants to change the information. A new report is generated from information entered by the client. Mr. Boon referred to this process as a special run that can occur in the midst of a pay period.

[104] Mr. Boon was asked whether after “submit” was pressed anyone other than ADP and the client could view this information. He said no. He was asked whether before submission ADP can unilaterally change any information the client is able to change, such as bank account numbers, pay amounts, taxes, expenses, etc. Mr. Boon answered in the affirmative but said ADP would not do this without the client’s authorization and emphasized no changes can be made after submission. Mr. Boon also testified there is no evidence on the records before the court that any such unilateral alteration had been made.

Conclusion on Authentication of ADP Records

[105] Before I decide whether the ADP records meet the common law requirements of a business record, I must determine the authenticity of the records. I must first decide whether the records are what they purport to be. Authenticity need only be demonstrated on a prima facie basis at the admissibility stage: [Ares v. Venner and R. v. Evans]. The ultimate question of authenticity is a question of weight to be determined at trial.

[106] I find the ADP records meet the preliminary standard for the following reasons:

[107] Mr. Boon was not the creator of the ADP records. He did not print them from ADP’s mainframe and he could not confirm that they were printed from the mainframe. But I found his testimony about the records under review to be informed and quite detailed. He could see no differences between the records under review and the formatting and contents of the PERs and PRs used by the Customer Service department that he has managed for 12 years. The forms are the same as the PERs and PRs his department accesses from their computers on a daily basis. Mr. Boon could readily explain the codes, short forms and figures and other content on the forms.

[108] Courts confronted with admissibility issues related to various types of computer generated records have adopted the age-old premise introduced by Moxley and embraced by Monkhouse and other cases. Prima facie proof does not require the proponent of the records to have direct personal knowledge of the information in the records and does not require the availability of the original records to demonstrate the authenticity of the records as the true records of the business in question. At the admissibility stage, there is no necessity to prove the veracity of the information on the record. This is left to the trier of fact at trial where the ultimate question of authenticity is to be determined: [R. v. Evans].

[109] I find on Mr. Boon’s evidence alone that prima facie authentication is satisfied.

[110] I find however that there is other evidence that contributes to the authentication of the ADP records.

[111] Previous courts have decided that authentication can be achieved by reference to the factual background surrounding the making of the statement or record and by comparison with other evidence: [R. v. Evans, R. v. Brown and R. v. Andalib-Goortani].

[112] Det. Crilly gave evidence about the contents of the bank records, the institute numbers, and the transit and account numbers in relation to the corresponding information in the production orders he obtained for those records.

[113] To demonstrate that the relevant data on the ADP records matches data on the bank records the Crown highlighted and tracked the information on the PERs and PRs for Interac ex-employee, Jeffrey Lee. On reviewing the ADP records and bank records, it can be seen that bank account numbers on the bank documents have fewer digits than the corresponding bank account numbers recorded on the ADP records.

[114] The Crown posited that the last six or seven digits of the bank account numbers recorded on the ADP records match the corresponding six or seven digits of bank account numbers on the bank records. The defence conceded that Det. Crilly’s evidence would be to that effect and in fact his evidence did establish a matching of bank account numbers between the two types of records.

[115] In making that concession the defence however did not admit the authenticity or reliability of the ADP documents.

[116] I find the basic matching of the bank account numbers on the ADP records with the corresponding bank account numbers on the bank records, on this general level, tends to contribute to prima facie authentication. Again, the ultimate determination of authenticity, the comparison of the bank account numbers Ms. Clarke is alleged to have used in her fraudulent scheme, will be determined at trial.

[117] Further testimony from Det. Crilly or Mr. Boon, or both, might be called upon at trial, along with evidence from Interac employees, where their evidence can be subjected to cross-examination. This is where the weight and accuracy of the ADP records will be determined.

[118] As noted earlier, the defence placed some emphasis on the possibility of the information on the PERs and PRs being manipulated by ADP personnel before it was submitted by Customer Services. There is no evidence of this before the court although Mr. Boon said it is possible. But this has not happened to the best of his knowledge in his 12-year experience managing payroll.

[119] I must say that I adopt the concerns expressed by the American Court in United States v. Safavian and the observations of Paciocco that with today’s modern electronic advancements it would be completely unworkable to refuse electronic documents and records even in a case with fears about manipulation. David M. Tanovich affirms this view:

Presumably, a party will always be able to find an expert to say that material downloaded to the internet “could be” manipulated without easy detection or that they cannot say for certain that it was not. Arguably, that is a question of weight and ultimate reliability.

[David M. Tanovich, “R. v. Andalib-Goortani: Authentication & The Internet”, (2014) 13 C.R. (7th) 140, at p. 141; author’s quotation marks]

[120] The reality or not of any manipulation of the ADP records and the accuracy of the information contained therein are questions of fact that again go to the weight of the evidence to be determined at trial. Again, testimony can be adduced and cross-examination conducted on those issues at trial.

[121] In the result, I find the Crown has succeeded, through Mr. Boon’s evidence and a basic comparison of bank account numbers on the ADP and bank records, to establish a prima facie case for authentication of the ADP records.

ADP Records and the Requirements of the Common Law Exception to Hearsay

[122] The next step after determining threshold authenticity is to decide whether the ADP records meet the common law business records exception to hearsay.

[123] Records produced with human intervention are classified as hearsay at common law but are admissible if they fit within an exception to the hearsay rule and possess inherent qualities of trustworthiness: [R. v. Hall]. The ADP records are produced by the human input of Interac payroll personnel, and exceptionally by ADP personnel. The next consideration then is whether the ADP records constitute business records under the Ares v. Venner criteria and as such qualify for the common law exception.

[124] Mr. Boon’s evidence has demonstrated to my satisfaction on a prima facie basis that the ADP reports comprise original entries made by Interac personnel contemporaneously with the production of the ADP reports. The reports were produced by persons with a duty to do so in the routine course of Interac and ADP business and who have personal knowledge of the ADP records.

[125] There is no evidence of a motive by Interac personnel to misrepresent the information in the reports. In normal circumstances, Interac employees tasked with entering information would be concerned that the amounts of employees’ remuneration and other personal information were accurate. Inaccurate information would affect those entering the data no less than it would affect other employees. The actions of the payroll personnel would also affect their employer’s business reputation with ADP and the banking institutions.

[126] Mr. Boon testified about the records but was not involved in their production. He could not confirm the veracity of the contents. Moxley and Monkhouse provide this is not required for the records to satisfy the common law exception.

[127] The burden is on the proponent of the statement or record to prove threshold reliability. The burden is not onerous. Trotter, J., in R. v. Andalib-Goortani, citing Hill, et al., held admissibility must be established on “some evidence” before it can be put before the trier of fact at trial: [R. v. Andalib-Goortani, at para. 25, citing Hill, Tanovich & Strezos, McWilliams, Canadian Criminal Evidence, loose leaf, 5th ed. (Toronto: Canada Law Book, 2013) at 23-5 to 23-9]. I find the Crown has met this burden.

[128] I find in conclusion that the ADP records satisfy the common law exception. They have the recognized indicators of inherent trustworthiness. The records qualify to be received in evidence as prima facie proof, not ultimate proof, of the facts stated therein: [Ares v. Venner]. The Alberta Court of Appeal cites an academic authority on the rationale behind this principle:

These hearsay records are not to be accepted in evidence merely to avoid the inconvenience of identifying a witness or because many witnesses would be involved, or even because otherwise no evidence would be available. Rather, they can be admitted only if they have come into existence under circumstances which make them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence.

[R v O'Neil, 2012 ABCA 162, at para. 44, (Alta. C.A), as cited from J.D. Ewart, Documentary Evidence in Canada (Carswell Co., 1984), at p. 54]

[129] Ares v. Venner goes on to say this should by no means impede a party seeking to challenge the accuracy of the records or entries from doing so. What the Court expresses here is that it is at trial where ultimate reliability and weight are determined that the opponent of the evidence has the opportunity to challenge its trustworthiness and accuracy.

[130] The Crown adduced Det. Crilly’s evidence on the bank account information he received to obtain the production orders. This was to compare the information on the production order affidavit to the information on the already admissible bank records and to the information on the ADP records sought to be admitted. The Crown’s aim in doing this as I understand it was to establish threshold reliability of the ADP records.

[131] However, as I found, threshold or prima facie reliability at the admissibility stage has been accomplished in this case through establishing the ADP records satisfy the Ares v. Venner trustworthiness criteria for the business record exception to hearsay. This does not preclude further inquiry at trial into the comparison of the records to establish the accuracy and ultimate reliability of the ADP records – an inquiry that is critical to deciding Ms. Clarke’s guilt or innocence at trial.

CONCLUSION

[132] The bank account records are admitted into evidence. The ADP records are also admitted.

B.A. ALLEN J.

Released: March 7, 2016

CITATION: R. v. Clarke, 2016 ONSC 575

COURT FILE NO.: CR-15-10000211

DATE: 20160307

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

MARVIN CLARKE and MONIQUE CLARKE

Accused

REASONS FOR DECISION

(Hearing on Admissibility of Business Records)

B.A. ALLEN J.

Released: March 7, 2016