R. v. Chaudhry, 2020 ONSC 7215

COURT FILE NO.: CR-19-50000522-0000

DATE: 20201127

ONTARIO

SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN

– and –

ZAYD CHAUDHRY

Aaron Del Rizzo, Jim Cruess and David Reznikov, for the Crown

Magda Wyszomierska and Charles Lamy, for Zayd Chaudhry

HEARD: October 26, 2020

By virtue of s. 648(1) of the Criminal Code of Canada, this ruling may not be published, broadcast or transmitted in any way until the jury hearing this trial retires to consider its verdict.

M. Dambrot J.:

1This ruling concerns the admissibility of a Resident Information Form for Unit 1108, 55 Speers Road in Oakville, Ontario. For the reasons that follow, the form is admissible as a business record pursuant to s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5, s. 30 (“CEA”).

BACKGROUND

2Zayd Chaudhry is being tried by me with a jury on an indictment alleging that he committed the first degree murder of Abdulkadir Bihi in Toronto on October 5, 2017. The Crown proposes to adduce evidence that on October 5, 2017, Mr. Bihi was seated inside a Volkswagen Jetta in a parking lot outside 263 Dixon Road in Toronto. A lone gunman emerged from a forested area nearby and fired multiple shots through the windshield of the Jetta. Mr. Bihi was struck multiple times. Mr. Bihi quickly reversed his vehicle and attempted to escape the scene. He crashed into the back of a truck and died in the parking lot. The Crown alleges that Mr. Chaudhry was the gunman. Although the shooting was captured by video surveillance, that footage is not of suitable quality to identify the shooter.

3Eyewitness testimony establishes that the shooter and another male ran back through the forested area toward Dixon Road. The Crown alleges that the second male was an individual named Zakariye Ali, who was murdered two days later after attending Mr. Bihi’s funeral. A Beck taxi was waiting for them at the end of the path with a third male in the back seat. The two men entered the taxi and the driver, Khaliif Jama, took them to their destination.

4The taxi had been ordered by telephone. The phone number it was ordered from was (437) 990-1367. That number was registered to a false name and address. The taxi was initially ordered to 290 Dixon Road, across the street from where Mr. Bihi was killed. The taxi picked up a single passenger at that location. The Crown alleges that person is a man named Faysal Omar. There is other evidence which links Mr. Omar to use of the (437) 990-1367 number earlier that day. However, the taxi driver distinctly remembered that Mr. Omar did not have a cell phone on him in the taxi.

5After entering the taxi, Mr. Omar instructed the taxi driver to wait for his friends. When the driver inquired further, Mr. Omar told him to call (437) 990-1367, which he did. A male voice answered the call saying, “we’re coming.” Mr. Omar directed the taxi to get onto Dixon Road and wait for the other passengers at the end of the path leading from the murder site. There, two men matching the descriptions of Mr. Chaudhry and Mr. Ali entered the taxi. Mr. Chaudhry and Mr. Omar are known associates.

6The taxi driver was directed to drive the three men to 55 Speers Road, a multi-story apartment building in Oakville. Upon arrival, surveillance footage from the area captured three males matching the descriptions of Mr. Chaudhry, Mr. Ali and Mr. Omar walking off-camera for less than two minutes. They return with the persons said to be Mr. Omar and Mr. Ali dressed the same, but the person said to be Mr. Chaudhry wearing different clothing. All three males then walked to the elevator bay and went up the elevator.

7In the course of their investigation, the police focused their attention on Unit 1108 in the building. On October 7, 2017, the police executed a search warrant at the unit. Moments before the front door was breached, police officers stationed outside the building saw a satchel fall from the balcony of Unit 1108 to the ground. They seized the satchel and discovered that it contained a handgun. Forensic analysis later confirmed that shell casings located at the scene of the murder were fired from this gun, raising the inference that it was the gun used to kill Mr. Bihi.

8When the police entered the unit, Liban Hussein, said by the Crown to be an associate of Mr. Chaudhry, was in the unit with two visitors. Police located a second firearm and approximately $27,000 in cash, drugs, and scales in the unit. The Crown alleges it was Mr. Hussein who threw the firearm over the balcony.

9Unit 1108 is leased to Mr. Chaudhry. His chequebook was located in a kitchen drawer with a magazine that fit the murder weapon. Mr. Chaudhry’s fingerprints were located in two places in the unit.

THE BUSINESS RECORD

10All residents at 55 Speers Road are required to complete an Owner/Resident Information Form (“Information Form”). Property management and security keep the completed forms on record to identify and contact unit occupants in case of emergency. The information is also used to connect the building’s buzzer system to the resident’s phone. The Information Form for Unit 1108, which is the subject matter of this application, identifies Mr. Chaudhry as an occupant and lists (437) 990-1367 as his phone number. As I have noted, this is the number that was used to order the getaway taxi and also the number the taxi driver called before picking up the gunman near the scene of Mr. Bihi’s murder. The Form also lists Yahya Jama as a second occupant.

11Saleem Qazi, the security supervisor for the building, testified at the preliminary inquiry that an overweight young man living in Unit 1108 initially filled in basic information on the Form. Mr. Qazi’s description generally matches Liban Hussein. Additional information may have been filled in later. When asked at the preliminary inquiry if he recognized Mr. Chaudhry, Mr. Qazi said, “[n]o, I cannot say exactly.” When asked to explain, he said, “[h]is face, I never saw him before in the building.” Mr. Hussein also testified at the preliminary inquiry. He denied completing the Form.

12There was also evidence adduced at the preliminary inquiry suggesting that the Information Form completed for Unit 1108 was not entirely accurate. For example, while the Form lists Peng Yan as the unit owner, Yan Hui Chen owns the unit. Mr. Jama testified that there were other inaccuracies in the document. He said that he was not a tenant of this address, had never been to this address, had not authored the form and did not recognize the phone number purported to be his own. It is the Crown’s position, however, that Mr. Jama was not a truthful witness.

SECTION 30, CANADA EVIDENCE ACT

13Documents tendered for the truth of their contents are hearsay and are admissible only if they fall into an exception to the rule. Based on the inherent circumstantial reliability of day to day business records, a business duty exception developed in the common law. This common law exception was very constrained, however, and included seven prerequisites. In Myers v. D.P.P., [1965] A.C. 1001, the House of Lords declined to relieve against the strictness of the exception, but the Supreme Court took a different view in Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608. Even then, the law still apparently required the maker of a document admitted under the exception to have personal knowledge of the facts recorded in it. That and other strictures were removed by s. 30 of the CEA, which provided an independent statutory business record exception to the hearsay rule.

14Section 30(1) creates the basic framework for admitting a business record under the CEA. It provides as follows:

Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding on production of the record.

15Of significance for the accused’s argument, s. 30(12) of the CEA defines “business” and “record” for the purpose of s. 30 as follows:

business means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing a function of government;

record includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4).

THE ISSUES

16The accused resists the admission of the Information Form. In his factum, he raises three objections. He says

(1) the Information Form is inadmissible because it was not a record created in the ordinary course of business;

(2) the Information Form is inadmissible because it contains double hearsay; and

(3) the Information Form does not possess the required threshold reliability to be admissible.

17I will consider each argument in turn. In oral argument, counsel for the accused did not press the second issue, and I will consider it only briefly.

ANALYSIS

(1) Is the Information Form a business record created in the ordinary course of business?

18The respondent acknowledges that the Information Form is a record and that the property management company that collected the Form is a business. Yet he argues that the Information Form was not made in the usual and ordinary course of business. He notes that while the terms “record” and “business” are defined in s. 30(12), the phrase “ordinary course of business” is not. In his factum, he argues that commercial or financial transactions are the sine qua non of the term “ordinary course of business.” Understandably, he did not maintain this position in oral argument. It would fly in the face of the rationale of s. 30, namely the inherent circumstantial reliability of day to day business records, and it would have to contend with decades of jurisprudence to the contrary. I need say no more about it.

19The respondent then argues that requiring residents to complete a form and then relying on whatever information the residents provide does not sufficiently guarantee the trustworthiness or reliability of the information. The form should not, therefore, qualify as a record made in the usual and ordinary course of business. To assess this argument, it is necessary to consider the evidence about the purpose of the form.

20As I have already noted, the information is routinely collected and relied on for business purposes. Property management and security keep the completed forms on record to identify and contact unit occupants in case of emergency. The information is also used to connect the building’s buzzer system to the resident’s phone to allow visitors to access the resident’s floor. While obviously this is no absolute guarantee that the information is accurate, the reason for and circumstances surrounding its collection, and the fact that the information is routinely relied on provides a significant measure of assurance that the information is reliable. The fact that the company must obtain the information from the residents is inevitable, and does not detract from its reliability.

21The Alberta Court of Appeal held that a very similar record had been properly admitted as a business record at trial in R. v. Ta, 2010 ABCA 145, 487 A.R. 168. In that case, the Crown proffered a “Personal Information Sheet” that purported to identify the persons living in a particular condominium unit as a business record pursuant to s. 30. On appeal, the appellant argued that the threshold test for admission of the document as a business record was not met because the witness attempting to prove the document did not work for the company when the document was created, because the document was completed by the owners of the unit and not the property manager (meaning there was no duty to make it), and because there was no evidence as to whether there was a motive to misrepresent the document’s contents. He also argued that the document ought not to have been admitted in the absence of a finding that the requirement of necessity was met.

22The Court of Appeal rejected all of these arguments. The Court stated as follows, at para. 11:

We are of the view that these arguments are without merit. The Personal Information Sheet was relevant to the issue of the identity of the occupants of #430, although it was only admitted to demonstrate that as at the date of the document Ta and Miao were occupants. We agree with the trial judge that the document falls within the criteria laid out in Monkhouse. The document is clearly a business record, whether filled out by the property manager during a personal meeting with the owner or sent to the owner to complete and return. The document was prepared so that the property manager would have a record of who was actually residing in the suite for a number of reasons including emergencies. Accordingly, it properly falls within the business records exception to the hearsay rule. When a document is within an established exception there is no need to resort to basic principles and prove reliability and necessity. There was no error in admitting the document.

23This decision is consistent with virtually all of the caselaw, which overwhelmingly supports the view that the fact that a record was completed by a third party does not detract from its nature as a business record. Unlike the common law business duty exception to the hearsay rule, s. 30 does not require that a business record be made by someone under a duty to act and record it, so long as it came into existence under circumstances that made it inherently trustworthy.

24For example, in R. v. Monkhouse, 1987 ABCA 227, 61 C.R. (3d) 343, Chief Justice Laycraft stated, for the Court, at para. 24:

To this summary, I would respectfully make one modification. The “original entry” need not have been made personally by a recorder with knowledge of the thing recorded. On the authority of Omand [Omand v. Alberta Milling Co., 1922 CanLII 450 (AB CA), [1922] 3 W.W.R. 412], Ashdown [Ashdown Hardware Co. Ltd. v. Senger, 1951 CanLII 268 (AB CA), [1952] 1 D.L.R. 33], and Moxley [Canadian Atlantic Rwy. Co. v. Moxley (1889), 1888 CanLII 2 (SCC), 15 S.C.R. 145], it is sufficient if the recorder is functioning in the usual and ordinary course of a system in effect for the preparation of business records. In Ashdown, for example, the ledger account, introduced in evidence, was said in the judgment to run for 40 pages. It is unlikely that the same person who sent the goods from a shipping dock and sent a memorandum of that to the business office also made the ledger entry which it was sought to admit. Neither the shipping clerk nor the original ledger keeper was before the Court. In Omand, clearly the original entries had been made by a number of different persons. In Moxley, the person with the duty had “caused” the entry to be made. Modern business records are customarily a compilation of original documents such as sales slips or other memoranda and rarely would that compilation be made by the person who prepared the original document. Yet those records are accepted as valid daily by all those affected by them.

25Similarly, in L. (B) v. Saskatchewan, 2012 SKCA 38, 393 Sask. R. 57 at paras. 30-32, albeit in relation to ss. 50 and 52 of the Evidence Act of Saskatchewan, which creates a scheme similar to s. 30, the Court rejected the argument that certain police documents were not business records because they contained information from third parties, including from members of the public. The Court reasoned that there are many instances where businesses document and rely on information provided by third parties. Even where business records are simply recordings of third party information, they are admissible if they are sufficiently reliable. Of note, the Court said that a “necessary guarantee of truth” is not required. “All that is required is that there is sufficient reliability for admission.”

26In my view, these decisions accurately reflect the law in relation to s. 30. The Information Form is sufficiently reliable for admission. I would not give effect to this argument.

(2) Is the Information Form inadmissible because it contains double hearsay?

27As I have already noted, counsel for the accused did not press the issue of double hearsay in oral argument, and I will consider it only briefly.

28I begin by saying that it is far from clear to me that there is a double hearsay issue in this case. As far as I have been made aware, the Crown will use this document, if it is admitted, as evidence that Mr. Chaudhry resided in Unit 1108, 55 Speers Road in Oakville, Ontario, and is associated with the telephone number (437) 990-1367. This information, in turn, is circumstantial evidence that may help support an inference that the accused killed Abdulkadir Bihi. If this information was provided by the accused, then it is not double hearsay. If it was provided by another resident of the unit, then it is also not likely to be double hearsay. Any resident of the apartment would inevitably have personal knowledge of who else resided in the unit and would almost as inevitably have knowledge of phone numbers associated with them. While it is true that the Crown acknowledged that “there is ‘double hearsay’ within the record”, it did not acknowledge that the information relied on is double hearsay. In any event, I will not rest my decision on this footing and will consider the double hearsay objection.

29This issue has been addressed in a number of cases. I will mention only a few appellate decisions. In R. v. Gregoire (1998), 1998 CanLII 17679 (MB CA), 130 C.C.C. (3d) 65 (Ma. C.A.), at para. 56, the Court stated the following:

The accused's submission focusses on s. 30(1) of the Canada Evidence Act. He argues that the introductory words in s. 30(1), “[w]here oral evidence in respect of a matter would be admissible in a legal proceeding,” prohibit the introduction into evidence of “double hearsay,” such as that contained in the documents in question. He candidly acknowledges that his submission is contrary to the weight of authority which has interpreted s. 30(1) as being an all-encompassing business record exception to the hearsay rule. The most recent example is R. v. Martin (1997), 1997 CanLII 9717 (SK CA), 8 C.R. (5th) 246, in which the Saskatchewan Court of Appeal, in a compendious decision, extensively reviewed the jurisprudence concerning s. 30(1) (see in particular pp. 256-59) and concluded that “double hearsay,” defined as “information contained in a record which was given to the record keeper who has no knowledge of its accuracy,” was clearly admissible following the principle established in the landmark decision of the Supreme Court of Canada in Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608, (of which more shortly). It was concluded that the introductory words to s. 30(1) deal only with the form of testimony and do not operate to limit the legal effect of the business record exception to the hearsay rule.

30In addition to the Saskatchewan Court of Appeal in Martin, the same conclusion has been reached by the Nova Scotia Court of Appeal in R. v. Sanghi (1971), 1971 CanLII 1275 (NS CA), 6 C.C.C. (2d) 123, by the Ontario Court of Appeal in R. v. Anthes Business Forms Ltd. (1976), 1975 CanLII 54 (ON CA), 10 O.R. (2d) 153, 26 C.C.C. (2d) 349, aff’d 1977 CanLII 2125 (SCC), [1978] 1 S.C.R. 970, 32 C.C.C. (2d) 207, on different grounds; by the British Columbia Court of Appeal in R. v. Penno (1977), 1977 CanLII 1626 (BC CA), 35 C.C.C. (2d) 266 and by the Alberta Court of Appeal in R. v. Boles (1985), 1984 ABCA 224, 57 A.R. 232.

31I am bound to reach the same conclusion but would have done so in any event.

(3) Does the Information Form possess the threshold reliability to be admissible?

32To be clear, the accused does not advance an argument based on R. v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 and R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, that this is one of those rare cases where evidence falling within an existing exception to the hearsay rule could be excluded where indicia of necessity and reliability are lacking. As he rightly acknowledges, in both Starr and Mapara, the Court was exclusively addressing traditional exceptions to hearsay created at common law. Here we are dealing with a statutory exception. Instead, he relies on the terms of the statute itself, specifically s. 30(6). That section provides as follows:

For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record.

33The accused argues that this provision empowers the trial judge to assess the business record and determine whether it has sufficient threshold reliability to be admissible. I agree with the accused that the trial judge has to assess threshold reliability before admitting a record pursuant to s. 30, but that role arises from s. 30(1), not from s. 30(6). Threshold reliability is established if a record that contains information in respect of the matter in issue is shown to have been made in the usual and ordinary course of business. That is what provides it with threshold reliability. If the record is not shown to be made in the usual course of business, it cannot be admitted under s. 30. Section 30(6) simply elaborates on the means to determine the issue.

34It seems to me that the accused’s argument is an effort to embroider the significance of s. 30(6), and use it to argue that the trial judge should assess the ultimate reliability of the document. Section 30(6) does not support this argument. It does nothing more than make plain the common sense proposition that in determining whether the prerequisites of s. 30 have been met, or in determining the weight to be afforded a record once admitted, a court is entitled to examine the document, receive evidence about its creation and authenticity, and draw reasonable inferences from it. It does not, as the accused would have it, create an additional statutory power to assess whether a record has sufficient threshold reliability to be admissible. Undoubtedly s. 30 gives the trial judge a gatekeeper function. That function is not enlarged by s. 30(6).

35In support of his argument, the accused relies on the decision of the Tax Court of Canada in Boroumand v. Canada, 2015 TCC 239, and an appeal from it to the Federal Court of Appeal in Boroumand v. Canada, 2016 FCA 313. In my view, however, there is nothing in either decision to support the accused’s position. The Tax Court case was an appeal by Boroumand from reassessments made under the Income Tax Act. On the appeal, which took the form of a trial, the appellant tried to introduce transaction records from three money services businesses that purported to show the appellant receiving nearly $2 million from Iran under both the common law business records exception to the hearsay rule and under s. 30 of the Canada Evidence Act. The respondent took objection to the admissibility of the records. The appeal judge upheld the objection.

36With respect to s. 30, the judge noted that the appellant had not established the reliability of the documents, either by oral testimony or by affidavit attesting to the circumstances surrounding their creation in the usual and ordinary course of business, and did not give notice of his intention to have the documents admitted in evidence, as is required under subsection 30(7). He concluded that “to admit these unproven documents for the truth of their contents would deprive the respondent of the opportunity to challenge the evidence and the Court of the ability to adequately assess its worth.”

37I see nothing in that decision that supports the accused’s argument. In this case, unlike in Boroumand, as I have already explained, the Crown adduced evidence that establishes that the information in question is routinely collected and relied on for business purposes. The Crown has also adduced evidence of the reason for and circumstances surrounding the information’s collection, and adduced evidence that it is routinely relied on. This provides a significant measure of assurance that the information is reliable. The fact that the company must obtain the information from the residents is inevitable and does not detract from its reliability.

38In the judgment on appeal to the Federal Court of Appeal in Boroumand, the decision of the trial judge was affirmed. The Court stated the following:

5 Section 30 of the Canada Evidence Act, R.S.C., 1985, c. C-5 (CEA) provides a statutory hearsay exception for records made in the usual and ordinary course of business (i.e. business records).

6 To determine whether the evidence meets the statutory exception, the court may, pursuant to subsection 30(6) of the CEA, examine the documents and hear evidence as to the circumstances of the creation of the documents and draw any reasonable inference. Despite assertions by the appellant that the money exchange documents were created in the usual and ordinary course of business of the money exchange enterprise, these assertions were unsupported by evidence. There was no affidavit evidence and the appellant did not call any witnesses from the money exchange enterprises. The Judge found that “the appellant offered no explanation as to the circumstances in which the records were made” (reasons at para. 49). As such, there is no basis on which to interfere with the Judge's finding.

39Again, I see nothing in this decision to suggest that a broader gatekeeper function than is mandated by s. 30(1) flows from s. 30(6).

40The accused’s gatekeeper argument is, of course, not merely academic. He says that there is specific evidence that the Information Form for Unit 1108 is not reliable. He asks me to exclude it for several reasons: because of the uncertainty about who among the residents of Unit 1108 initially completed the form; because of uncertainty about whether some of the information was added later; because the form incorrectly names the actual owner of the unit; and because Mr. Jama, whose truthfulness is challenged by the Crown, testified that there were other inaccuracies in the document. None of these concerns, however, relates directly to the information in the record relied on by the Crown, and, in my view, none of them undermines the measure of assurance that the information is reliable flowing from the fact that it is made in the usual course of business. That is sufficient for admissibility. The considerations raised by the accused are matters that will go to the weight of the evidence, and that the jury will have no difficulty in assessing.

DISPOSITION

41I do not give effect to any of the arguments raised by the accused. I note that the accused takes no issue with the Crown’s assertion that the notice requirement in s. 30(7) was fulfilled. In the result, in my view, all of the prerequisites to admissibility under s. 30 of the Canada Evidence Act have been met. The Resident Information Form for Unit 1108, 55 Speers Road in Oakville, Ontario will be admitted in evidence as a business record pursuant to s. 30 of the Canada Evidence Act.