NEWMARKET COURT FILE NO.: 17-0968AP
DATE: 20190918
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KARL TUTT
Appellant
Bradley Juriansz, Counsel for the Respondent
Angela Ruffo, Counsel for the Appellant
HEARD: August 22, 2019
REASONS FOR DECISION
On appeal from the decision of The Hon. Mr. Justice N. Dwyer
Dated June 12, 2018 (conviction) and July 31, 2018 (sentence)
CHRISTIE J.
[1] On June 12, 2018, the Appellant, Karl Tutt, was found guilty of failing to report pursuant to his obligations under a Sex Offender Information Registration Act (“SOIRA”) Order, contrary to section 490.031(1) of the Criminal Code. On July 31, 2018, he was sentenced to 4 months in custody. The Appellant appeals against conviction and sentence.
[2] With respect to the conviction appeal, the grounds advanced by the Appellant are as follows:
That the trial judge erred in permitting the Crown to tender unauthenticated documents for the truth of their contents as proof that the Appellant was bound by a SOIRA Order; and
That the trial judge erred by shifting the burden on to the Appellant to explain why he had not reported without first considering whether the Crown had proven the mens rea of the offence beyond a reasonable doubt.
[3] With respect to the sentence appeal, the grounds advanced by the Appellant are as follows:
- That the trial judge erred in imposing a 4-month custodial sentence, by overemphasizing the Appellant’s criminal record and failing to give sufficient weight to the circumstances of the offender and the offence that favoured an intermittent or conditional sentence that would allow the Appellant to continue working.
[4] For the reasons that follow, the conviction is quashed and a new trial is ordered.
Facts
[5] It was alleged at trial that the Appellant was placed on a SOIRA order on June 1, 2005 to continue for 20 years. The SOIRA requires that the person, subject to such an order, report yearly to a registration centre in their residential area between the eleventh and twelfth month from their last registration. When a person goes in to report, and the registration is completed, a registration receipt is printed off. The registration receipt provides information to the person, including, their requirement under the law for reporting, the first date that they registered, when they are required to report next, and their reporting period, in other words, for what period of time they are required to report. Every person who registers pursuant to a SOIRA order gets this receipt.
[6] For approximately 10 years prior to being charged, the Appellant reported through Const. Mark Duvall, or another officer in the High Risk Offender Unit at the York Regional Police Service. Throughout those years, in accordance with the procedure of the York Regional Police, Const. Duvall would make a courtesy telephone call to the Appellant to remind him that it was time to book his reporting appointment. Const. Duvall testified that this was the procedure for all persons subject to a SOIRA order in their region, in order to try to avoid the situation of a person failing to report due to a mistake or forgetfulness. The Appellant’s last report to Const. Duvall was on September 8, 2016. Const. Duvall stopped working in June 2017 and subsequently retired on January 31, 2018.
[7] Between September 8, 2017 and October 2, 2017, Const. Terry Hobor became aware that the Appellant had not reported as required, and he confirmed this with the Ontario Sex Offender Registry Office on October 2, 2017. Const. Hobor then requested that the affidavit and certificate relating to information contained on the National Sex Offender Registry Database be prepared. [The certificate / affidavit is sworn on November 9, 2017.] On November 8, 2017, Const. Hobor called the Appellant at the number on file for him and advised that he was non-compliant with his SOIRA order obligations, specifically failing to report between August 8 and September 7, 2017. Const. Hobor asked the Appellant to come in and an appointment was set up for the next day.
[8] The next day, November 9, 2017, the Appellant attended at the station as scheduled. Const. Hobor compared the photographs on file to the person standing before him and was satisfied that he was dealing with the Appellant. Despite the fact that Const. Hobor considered this “fulfilling his obligation to report” and bringing him “in compliance with the Registry”, Const. Hobor charged the Appellant with failing to comply with the SOIRA under s. 430.031(1) by failing to report within the required time that year. Const. Hobor testified:
Mr. Tutt came in. I completed a registration to bring him in compliance with the Registry, and then I issued him a charge notice, an appearance notice, requiring him to be in court to answer to the charge.
According to Const. Hobor, even though the Appellant had completed the registration on that day, in his view, he had failed to do so from September 8th until November 9th, 2017.
[9] The Appellant was served with an appearance notice and a notice pursuant to the Canada Evidence Act, which indicated that the Crown intended to adduce into evidence at the trial:
Certified copy of the original Information or Indictment (Criteria offence).
Certified copy of the Form 52.
Affidavit and documents relating to National Sex Offender Registry.
Copy of this notice.
[10] The trial was held on April 23 and June 12, 2018. Contrary to the Canada Evidence Act notice, a certified copy of the original Information for the criteria offence was not presented. Contrary to the Canada Evidence Act notice, a certified copy of the Form 52 [SOIRA order] was not presented.
[11] With respect to the documents, Const. Hobor testified that he did make efforts to contact the court in Hamilton, where the criteria offence had originated, through an officer with the Hamilton Police Service. Const. Hobor referred to an email that he received from a Hamilton police officer, Jeff Nauman, who had communicated with officers at the Hamilton Court. The email dated March 21, 2018 stated in part:
This matter, info #04-6660, was dealt with in the Ontario Court of Justice. I have been informed that any information starting from 04 (meaning a 2004 info) and prior have all been destroyed and shredded. There is no other form of record for the same (i.e. laser fiche, micro film, etc.)
Subsequently, this incident which is a 2004 info, as well as the Form 52 order, are no longer available. The only thing that I can offer is a certificate that would be stamped and legal, however, it would only show that the accused was convicted of the offence(s) on that info.
Based on that information, Const. Hobor did not make any other attempts to obtain certified copies of the Information as it appeared to him that it did not exist. He never tried to obtain a transcript of the proceedings as “it wasn’t something that ….came into my mind to do”. Const. Hobor was able to obtain a purported copy of a certified copy of the Information and probation order, along with a purported copy of the Form 52 SOIRA order, from a digital offender file, Versadex, which is the record management system maintained by the York Regional Police. Const. Hobor could not say whether the original was scanned and copied into the system. Const. Hobor had no concerns about the accuracy of the document. The dates and location on the copy of the Information regarding the finding of guilt, for a sexual offence, and the date on the copy of the SOIRA order were both June 1, 2005, which also corresponded to the entry on CPIC.
[12] Following a voir dire at the trial, and over the objection of defence counsel, the Crown was permitted to introduce the purported copy of a certified copy of the Information and a purported copy of the SOIRA order that PC Hobor found in his unit’s “digital offender file relating to Mr. Tutt.”
[13] Following the admission of the documents, there was no longer any dispute that the Appellant did not report within the required timelines under the Act. However, the Appellant led evidence of his pattern of reporting up to 2016, mainly with retired Const. Mark Duvall, including his previous reliance on reminder calls, the fact that no reminder call was received in 2017, but that when Const. Hobor called the telephone number on file for the Appellant, he complied immediately.
[14] On June 12, 2018, the Appellant was found guilty of the offence charged. The reasons of the court were fairly brief and were as follows:
The Crown has proven this case beyond a reasonable doubt. The defence proposed here is reasonable excuse. There has been no evidence to establish this defence on a balance of probabilities. There is simply no evidence that Mr. Tutt was not aware of his obligation, or was relying on a phone call that he did not receive.
The Crown bears the burden of proving the case beyond a reasonable doubt, but there has to be some air of reality to this reasonable excuse, and I find that there is none in this case.
There was a requirement to report within the eleventh to twelfth month, and there is simply no evidence at all that Mr. Tutt was confused or took any steps that might raise, on a balance of probabilities, that there was any sort of logic to why he didn’t report.
It is not a case where he gets a call and then is given a date he is confused about. There is simply nothing like that. All I am left with is that he reported the previous year, I believe it was on September 8th, and he simply did not take any steps, that I’m aware of, to report within that time, that he must have been aware of, given his reporting over quite a number of years from the time of the order in 2005. The Crown has proven the case beyond a reasonable doubt. There is no reasonable excuse established here. So, I find Mr. Tutt guilty.
(See p. 53 of June 12, 2018 Transcript)
[15] On July 31, 2018, the Appellant was sentenced to 4 months in custody, however, the commencement of the sentence was deferred to August 30, 2018.
Analysis
Admissibility of copies of documents
[16] There is no question that, at the trial, the Crown did not have original or certified copies of the SOIRA order or criteria offence Information. The Crown was permitted to introduce a document described as “a photocopy of a certified copy of the Information” and a SOIRA order “located” in the “digital offender file relating to Mr. Tutt”. The Crown sought to introduce the documents under the principled exception to the hearsay rule, arguing that the documents were necessary and reliable. Defence counsel conceded that the documents were necessary under the principled exception, however, argued that the documents were not reliable. The trial judge found that the documents were admissible for the truth of their content under the principled exception to the hearsay rule, as well as under the best evidence rule, although his reasons related to the former rather than the latter.
[17] The reasons of the trial judge on the admissibility of the documents were, in their entirety, as follows:
I am going to admit the documents. I find that on the principled exception to the hearsay rule, this document is clearly necessary in its present form. The reliability has been established. All of the submissions that Ms. Rumble made on this point, I agree with.
As Justice Kenkel says at para. 7 of Williams: “At common law, an exception to the hearsay rule is made for public documents and judicial documents. The principle of necessity, which underlies all hearsay exceptions, is satisfied by the inconvenience of having public officials summoned to court to testify viva voce in each case. The circumstances which make the documents trustworthy include the preparation of the document by a public official, acting under a duty to do so” which is exactly the case here, “and the fact that the documents are available for public scrutiny”, and that’s not met here.
I have looked at the document, it certainly has the hallmark of a court document, properly prepared. The evidence of Constable Hobor is such that he commented on the information, he found that the conviction and the orders made dovetail with the information on the document that is in question here. It all points to indices of reliability of the document.
Of course, what we are dealing with here is threshold reliability, not ultimate reliability, which will be assessed at the end of the case.
The decision of Justice Downs in Ayodeiji – Emeni also supports this proposition. At para. 38: “Documentary hearsay may also be admissible under the Khan exception to the hearsay rule, which requires that the reasonable necessity and threshold reliability of the proposed evidence be established. A public document is also admissible in common law. The principles of necessity and reliability also underlie the public document exception.”
I think it is clearly admissible under the principled exception to the hearsay rule. It is also, in my view, admissible under the best evidence rule. But, I think that it is not even necessary to go there, given what I find to be the clear application of the principled exception to this evidence. That is my ruling.
(See p. 28 of June 12, 2018 Transcript)
[18] It was accepted at this trial that the information contained in the documents, sought to be introduced to prove the truth of their content, amounted to hearsay and was therefore presumptively inadmissible. The trial judge acknowledged the hearsay nature of the proposed evidence and then embarked upon his admissibility analysis under the principled exception to the hearsay rule. This court is being asked to find that the trial judge erred in permitting the Crown to tender the unauthenticated documents for the truth of their contents as proof that the Appellant was bound by a SOIRA Order.
[19] Exceptions have developed under the common law for the admissibility of public documents. However, the principles of necessity and reliability inform the admissibility of such documents. In R. v. W.B.C., 2000 CanLII 5659 (ON CA), [2000] O.J. No. 397 (Ont. C.A.), Weiler J.A. for the court discussed the admissibility of public documents and judicial proceedings. The Court held that:
[30] The criteria for admissibility at common law of a public document and a judicial proceeding are the same and legal writers, such as Wigmore, make no distinction between them. The principles of necessity and reliability also underlie the public document or judicial proceeding exception. As stated by Laskin J.A. in R. v. P.(A.) (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385 at 389-390:
... This exception is founded upon the belief that public officers will perform their tasks properly, carefully, and honestly.' Sopinka et al, The Law of Evidence in Canada ... (Toronto: Butterworths, 1992), p. 231. Public documents are admissible without proof because of their inherent reliability or trustworthiness and because of the inconvenience of requiring public officials to be present in court to prove them. (emphasis mine).
[32] In R. v. P.(A.), supra, at 390, Laskin J.A. articulated four criteria for the admissibility of a public document or, in this case, a judicial record. These criteria which all relate to the reliability of the record are:
(i) the document must have been made by a public official, that is a person on whom a duty has been imposed by the public;
(ii) the public official must have made the document in the discharge of a public duty or function;
(iii) the document must have been made with the intention that it serve as a permanent record, and
(iv) the document must be available for public inspection.
See also: R. v. Caesar, 2016 ONCA 599 at paras. 37-39.
[20] Further, in order to establish the authenticity of the document, which speaks to its reliability, the judicial document must either be the original record or an exemplification of that record under the seal of the Court. The Court in W.B.C., explained that copies of documents can be admitted as authentic. The Court stated:
[39]…What is meant by “the original record”? Wigmore states that it has nothing to do with whether the writing in question was the “original” or “a copy”. Rather, what is meant is that the written text itself must be offered as opposed to testimony about it. Wigmore concludes at vol. 4, pp. 547-9, para. 1232 of his treatise on Evidence:
Thus the terms “copy” and “original” being purely relative to each other, have no inherent relation to the present rule, and the term “original” has no real significance in indicating which paper it is (of all possible papers) whose production is required by the rule. In order to state the rule, then, in terms which will indicate in the rule itself what documents are included in its scope, it must be noted that the production required is the production of the document whose contents are to be proved in the state of the issues. Whether or not that document was written before or after another, was copied from another, or was itself used to copy from, is immaterial…
The Canada Evidence Act also addresses the satisfaction of authenticity through the use of a certified copy of a document.
[21] The jurisprudence is clear that a trial judge’s decision on whether to admit or exclude evidence is a question of law. See Fanjoy v. The Queen, 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233 at para. 9, and R. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631 at para. 42. Therefore, the standard of review is that of correctness.
[22] In this case, reliability of the document was not established. Contrary to the findings of the trial judge, there was simply no basis on which to conclude that the indicia of reliability under the common law public documents exception had been established. There was no evidence that the document in issue was made by a public official in the discharge of a public duty with the intention to create a permanent record. There was simply no evidence of this whatsoever. Const. Hobor was not able to offer any evidence about the creation of the document or who had created it. With respect to the fourth criterion, the trial judge himself acknowledged that the documents were not available for public inspection as the originals were no longer in existence. Therefore, there was absolutely no basis for the court to conclude.
“The circumstances which make the documents trustworthy include the preparation of the document by a public official, acting under a duty to do so” which is exactly the case here…
(See p. 28 of June 12, 2018 Transcript)
Therefore, certainly the documents would not be reliable based on a consideration of the criteria for admissibility at common law of a public document or judicial proceeding, as he appeared to conclude.
[23] Further, the other indicia of reliability referred to by the trial judge, do not provide sufficient reliability at all. Specifically, the trial judge stated:
I have looked at the document, it certainly has the hallmark of a court document, properly prepared. The evidence of Constable Hobor is such that he commented on the information, he found that the conviction and the orders made dovetail with the information on the document that is in question here. It all points to indices of reliability of the document.
(See p. 28 & 29 of June 12, 2018 Transcript)
Const. Hobor had no information as to how the documents were placed in Versadex, no information as to what documents were used to create this electronic file, and no information about the person who placed the documents on that system. The court fails to consider this absence of evidence in his analysis, and rather focuses on his own experience with court documents and a couple of comparisons that the officer is able to make between the documents. The fact that a document “has the hallmark of a court document” does not make the information contained in the document more reliable. Also, surely, a comparison of presumptively inadmissible documents does not make those documents more reliable.
[24] The criteria to be considered under the common law public documents exception on which the trial judge relied could not be applied in this case to establish sufficient reliability under the principled exception to the hearsay rule. The other indicia of reliability referred to by the trial judge were insufficient indicators of reliability in the circumstances.
[25] Further, there was no basis for the judge to conclude that the documents presented were the best evidence available.
[26] First, the judge provided no reasons for reaching this secondary conclusion.
[27] Second, Const. Hobor testified in reference to an email he received from a Hamilton police officer indicating that while the original Information and Form 52 were no longer available, “a certificate that would be stamped and legal” was available and would show “that the accused was convicted of the offence(s) on that info”. Therefore, it would appear that at least with respect to the Information, better evidence was available. Also, Const. Hobor could have made attempts to obtain a transcript of the earlier proceedings, however, he made no efforts, in fact, did not turn his mind to this as another possibility.
[28] Clearly, these documents were not the best evidence available. More importantly, however, the best evidence rule does not displace the hearsay dangers that exist.
[29] In conclusion, this court finds that the trial judge erred in permitting the Crown to tender these documents for the truth of their contents as proof that the Appellant was bound by a SOIRA Order. It is the view of this court that this conclusion leads to a new trial being ordered.
Certificate pursuant to section 490.031(3)
[30] An issue arose as part of this appeal as to whether the “Certificate relating to Information contained on the National Sex Offender Registry Database” was sufficient to prove the existence of the SOIRA order. Const. Connie Gregus, a member of the OPP working within the Ontario Sex Offender Registry and the National Sex Offender Registry prepared and provided an affidavit containing information that, if admitted for the truth of its content, would provide proof that the Appellant was subject to the Order at the relevant time and that he failed to comply with the order.
[31] While the Crown on appeal has taken the position that the certificate provides sufficient evidence of the fact that the Appellant was subject to an order to report to the registration centre and that he failed to do so between September 8, 2016 and November 9, 2017, without the need for an Information and SOIRA order to be admitted, this was not the focus of the argument at trial. The Crown at trial articulated the admissibility of the certificate pursuant to s. 490.031(3), however, despite that, the Crown still sought to introduce the purported copies of documents to prove the existence and operability of the SOIRA order. During the argument on the voir dire, the Crown stated:
So, just to be clear, that certificate is prima facie admissible, and we’re not arguing about that, and that is going to be the document that is going to lay out for Your Honour when Mr. Tutt reported and when he just – what the deadlines were thereafter.
(See p. 21 & 22 of June 12, 2018 Transcript)
There was no suggestion by the trial Crown that the certificate would provide sufficient evidence of the existence of the SOIRA order and the obligations that flowed from the SOIRA order.
[32] It should also be noted that the defence at trial reviewed the certificate and made no further objection to admissibility. The Appellant did not seek leave of the court to cross-examine Const. Gergus about her statements in the certificate as provided by s. 490.031(4) of the Criminal Code.
[33] At this appeal, however, the Crown argued that, regardless of the admissibility of the copies of documents purporting to be the Information and SOIRA order, the obligation to report was clearly demonstrated by the certificate, to which trial counsel took no objection.
[34] It is the view of this court that this was not the way the arguments were framed at trial. If this were the Crown’s position at trial, there would have been absolutely no reason to enter into the voir dire to determine the admissibility of the other documentation. In my view, neither Crown or defence counsel at trial operated on the understanding that the certificate would be sufficient proof of the obligation to report without the other documents being admissible.
[35] Generally, this court will not permit an issue to be raised for the first time on appeal. The burden is on the appellant to satisfy the court that it should exercise its discretion to permit the argument to be advanced: R. v. Reid, 2016 ONCA 524, 132 O.R. (3d) 26, at paras. 37-44.
[36] Having said that, however, this issue requires some clarification by this court. Especially in light of the fact that the Crown argues that this should be considered in relation to the curative proviso, in the event that the Court agreed with the Appellant on the admissibility ground of appeal. Therefore, this issue is considered below.
[37] Section 490.031(3) states:
(3) In proceedings under subsection (1), a certificate of a person referred to in para. 16(2)(b) of the Sex Offender Information Registration Act stating that the sex offender failed to report under section 4, 4.1, 4.2 or 4.3 — or provide information under section 5 or notify a person under subsection 6(1) — of that Act is evidence of the statements contained in it without proof of the signature or official character of the person appearing to have signed it.
[38] Clearly, this is meant to be an evidentiary shortcut for the Crown to prove certain facts. However, the section is clear as to what those facts can be. The section focuses on the failure to do certain activities as opposed to the existence of the order. The section explicitly states that the certificate can provide evidence that:
The subject failed to report under section 4, 4.1, 4.2, or 4.3, or
The subject failed to provide information under section 5, or
The subject failed to notify a person under subsection 6(1)
There is absolutely no reference to the certificate being capable of providing proof of the existence of the SOIRA order.
[39] If Parliament had intended for the certificate to be capable of proving other facts, or in other words providing other evidentiary shortcuts, they would have expressly said so or would have simply left the wording of the section general, thereby leaving it open to the author, rather than listing what the certificate can state. By listing specific items that the certificate can prove, it would suggest that Parliament had specific things in mind and specific restrictions in mind.
[40] Further proof that Parliament intended to restrict the facts that can be proven by the certificate is the fact that the heading to the section says just that – “Proof of certain facts by certificate”. In R. v. Lohnes, 1992 CanLII 112 (SCC), [1992] 1 S.C.R. 167 at 179, McLachlin J. held that, “As noted in Skoke-Graham, supra, headings and preambles may be used as intrinsic aids in interpreting ambiguous statutes.” See also: Law Society of Upper Canada v. Skapinker, 1984 CanLII 3 (SCC), [1984] 1 S.C.R. 357 at 376; R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] 2 S.C.R. 541; R. v. Kelly, 1992 CanLII 62 (SCC), [1992] 2 S.C.R. 170, at para. 46
[41] In looking at other sections of the Criminal Code, the court can obtain some guidance on this exercise of statutory interpretation. Section 145(9) of the Criminal Code states:
(9) In any proceedings under subsection (2), (4) or (5), a certificate of the clerk of the court or a judge of the court before which the accused is alleged to have failed to attend or of the person in charge of the place at which it is alleged the accused failed to attend for the purposes of the Identification of Criminals Act stating that,
(a) in the case of proceedings under subsection (2), the accused gave or entered into an undertaking or recognizance before a justice or judge and failed to attend court in accordance therewith or, having attended court, failed to attend court thereafter as required by the court, justice or judge or to surrender in accordance with an order of the court, justice or judge, as the case may be,
(b) in the case of proceedings under subsection (4), a summons was issued to and served on the accused and the accused failed to attend court in accordance therewith or failed to appear at the time and place stated therein for the purposes of the Identification of Criminals Act, as the case may be, and
(c) in the case of proceedings under subsection (5), the accused was named in an appearance notice, a promise to appear or a recognizance entered into before an officer in charge or another peace officer, that was confirmed by a justice under section 508, and the accused failed to appear at the time and place stated therein for the purposes of the Identification of Criminals Act, failed to attend court in accordance therewith or, having attended court, failed to attend court thereafter as required by the court, justice or judge, as the case may be,
is evidence of the statements contained in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate.
In this provision, the section explicitly states that the certificate can provide proof that the order was in place at the time.
[42] In previous section 258(1)(g) of the Criminal Code, there is reference to the use of a certificate as proof of certain facts. The section states as follows:
(g) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), a certificate of a qualified technician stating
(i) that the analysis of each of the samples has been made by means of an approved instrument operated by the technician and ascertained by the technician to be in proper working order by means of an alcohol standard, identified in the certificate, that is suitable for use with an approved instrument,
(ii) the results of the analyses so made, and
(iii) if the samples were taken by the technician,
(A) [Repealed before coming into force, 2008, c. 20, s. 3]
(B) the time when and place where each sample and any specimen described in clause (A) was taken, and
(C) that each sample was received from the accused directly into an approved container or into an approved instrument operated by the technician,
is evidence of the facts alleged in the certificate without proof of the signature or the official character of the person appearing to have signed the certificate;
[43] It has been held that a certificate of a qualified breath technician could be used as evidence of the qualification of the technician for the purpose of the section [which at the time was section 241]. In R. v. Novis, [1987] O. J. No. 754 (C.A.) at p. 7, the court stated:
Turning then to the concluding words of s. 237(1)(f) making the technician’s certificate evidence of the statements contained therein “without proof of the signature or the official character of the person appearing to have signed the certificate”, the certificate before us appears to have been signed by Constable Allan. He says in the certificate that he is a person designated as a qualified technician by the Attorney-General of Manitoba. Do the statements in the certificate become evidence without further proof of his official character? It would seem to us they do. We think the words “official character” can only have reference to the official position by virtue of which the signatory signs the certificate, viz., a “qualified technician”. There can be little doubt that the purpose is to save the time and expense of calling the qualified technician in each and every case and thereby facilitate the orderly administration of justice. If an accused against whom a certificate described in s. 237(1)(f) is produced wishes to challenge the statement of the person signing the certificate that he is properly designated as a qualified technician, the accused may, with leave of the Court, require the attendance of the qualified technician for the purposes of cross-examination. Section 237(4) [now s. 241(6)] affords him that right.
[44] Clearly, the section contemplates that only a qualified technician will prepare and provide this certificate in the first place. Therefore, the allowance for this certificate presupposes the qualification. Frankly, the referenced para. 16(2)(b) of the SOIRA states:
(b) a person who collects information at a registration centre designated under this Act in the province in which a sex offender’s main residence is located who consults the information to verify compliance by the sex offender with an order or with an obligation under section 490.019 or 490.02901 of the Criminal Code, section 227.06 of the National Defence Act or section 36.1 of the International Transfer of Offenders Act.
No one in the case at bar is questioning whether the person who prepared the certificate was a person contemplated under para. 16(2) of SOIRA. If this were the argument, clearly Novis could apply to the circumstances to argue that the certificate is proof that the person is qualified to give this evidence. In the view of this court, Novis does not stand for the proposition that other “facts”, that are not stated in the precise words of the section, can be introduced through the certificate.
[45] Given that this is a consideration of a provision of the Criminal Code which will have an impact on a person’s liberty, there must be a strict interpretation of the section; an interpretation that provides clarity and certainty. Any ambiguity must be resolved in favour of the accused. In R. v. McIntosh, 1995 CanLII 124 (SCC), [1995] 1 S.C.R. 686, Justice Lamer for the majority held at para. 29:
It is a principle of statutory interpretation that where two interpretations of a provision which affects the liberty of a subject are available, one of which is more favourable to an accused, then the court should adopt this favourable interpretation. By this same reasoning, where such a provision is, on its face, favourable to an accused, then I do not think that a court should engage in the interpretive process advocated by the Crown for the sole purpose of narrowing the provision and making it less favourable to the accused.
[46] However, this statute has no ambiguity. There is really no need to interpret the statute as the section is very clear about what the certificate can provide proof of. To interpret it otherwise, such as to suggest that other “facts” can be introduced for the truth of their content through the certificate would be completely unreasonable.
[47] Any information that goes beyond the bounds of what is permitted to be proven through the certificate is inadmissible hearsay. Therefore, while the certificate is certainly evidence that the Appellant failed to report, it is not also evidence that he was required to report subject to a SOIRA order.
Proof of mens rea / reasonable excuse
[48] It has been held that failure to comply with a SOIRA order is a true criminal offence requiring proof of mens rea. In the case of R. v. Caruana, Justice Kenkel applied the analysis from R. v. Legere 1995 CanLII 1551 (ON CA), [1995] O.J. No. 152 (C.A.) at para. 33, which was decided in the context of a fail to comply with a condition of a recognizance. This comparison makes a great deal of sense. This court agrees that failure to comply with a SOIRA order is similar to failing to comply with a condition of a recognizance, in so far as the Crown must first prove that the person intentionally failed to comply with the condition, and that mere carelessness or failure to take the precautions that a reasonable person would take would not support a conviction.
[49] The mens rea requirement for breach offences, such as fail to comply with a condition of a recognizance or failing to report pursuant to obligations of a SOIRA order, is not restricted to the proof of an intention to fail to comply; wilful blindness and recklessness will also suffice. See: R. v. Legere (1995), 1995 CanLII 1551 (ON CA), 95 C.C.C. (3d) 555 (Ont. C.A.); R. v. Custance (2005), 2005 MBCA 23, 194 C.C.C. (3d) 225 (Man. C.A.); R. v. Withworth, [2013] O.J. N. 5708 (S.C.)
[50] The Respondent argued that this is a case of wilful blindness and that the trial judge did not need to find actual knowledge in order to find that the mens rea for the offence was proven beyond a reasonable doubt. Wilful blindness can substitute for actual knowledge whenever knowledge is a component of the mens rea. In R. v. Briscoe, 2010 SCC 13, [2010] S.C.J. No. 13, the Supreme Court of Canada held:
The doctrine of wilful blindness imputes knowledge to an accused whose suspicion is aroused to the point where he or she sees the need for further inquiries, but deliberately chooses not to make those inquiries.
See also: R. v. Jorgensen, 1995 CanLII 85 (SCC), [1995] S.C.J. No. 92.
[51] There would seem to be no argument that this is a true statement of the law. However, regardless of the route used to get to mens rea, whether intention, wilful blindness or recklessness, this is an essential element of the offence that the Crown must prove beyond a reasonable doubt. There is no burden on the accused to prove these states of mind did not exist.
[52] Reasonable excuse arises only after the Crown has proven the elements of the offence, including mens rea, beyond a reasonable doubt.
[53] In his reasons, the trial judge concluded that the Crown had proven the case beyond a reasonable doubt, without any reference to the mens rea for the offence, and then turned immediately to whether the Appellant had proven a reasonable excuse. He stated:
The Crown has proven this case beyond a reasonable doubt. The defence proposed here is reasonable excuse. There has been no evidence to establish this defence on a balance of probabilities. There is simply no evidence that Mr. Tutt was not aware of his obligation, or was relying on a phone call that he did not receive.
The Crown bears the burden of proving the case beyond a reasonable doubt, but there has to be some air of reality to this reasonable excuse, and I find that there is none in this case.
There was a requirement to report within the eleventh to twelfth month, and there is simply no evidence at all that Mr. Tutt was confused or took any steps that might raise, on a balance of probabilities, that there was any sort of logic to why he didn’t report…
[54] It is the view of this court that without first considering whether the Crown had proven beyond a reasonable doubt the mens rea for the offence, the trial judge improperly placed the burden on the Appellant to explain why he did not report.
[55] There is no analysis of whether the Crown had proven beyond a reasonable doubt that the Appellant intentionally, knowingly, or recklessly failed to comply with an active order. There is no analysis of whether the Appellant was wilfully blind as the Respondent argued. The evidence showed that the Appellant had a lengthy history of reporting on a yearly basis, following a telephone call from an officer to remind him to set up the appointment. Upon being notified by Const. Hobor that he had failed to report in a timely way, the Appellant attended at the station the next day to rectify the situation. There was no evidence at this trial that the Appellant intentionally chose not to report. To the contrary, there was evidence that suggested the Appellant had intended to report and did so immediately upon being notified of his error. The Appellant was easily reached at the contact information on file for him.
[56] The trial judge in this case referred to the fact that the Crown was required to prove the case beyond a reasonable doubt, however, makes no mention of how he reached that conclusion on the issue of mens rea. Rather, the trial judge placed the burden on the Appellant to demonstrate an explanation for his failure to report, without ever analyzing whether the Crown had proven that he intentionally, knowingly or recklessly failed to report.
[57] This is a question of law and the standard of review is that of correctness.
[58] It is the view of this court that the trial judge erred by shifting the burden on to the Appellant to explain why he had not reported, without first considering whether the Crown had proven the mens rea of the offence beyond a reasonable doubt. This error would also lead to a new trial.
Conclusion
[59] For all of the foregoing reasons, the conviction is quashed and a new trial is ordered.
CHRISTIE J.
Released: September 18, 2019