COURT FILE NO.: CRIMJ(P)908/18
DATE: 2021 08 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
R. Prihar, for the Crown
- and -
JONATHAN WILLIAMS
A. Romain and P. Kott, for Mr. Williams
Accused
HEARD: Wednesday 11 August 2021
TRIAL RULING NO. 3 – HOTEL RECORDS AS BUSINESS RECORDS
PUBLICATION BAN
By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.
Trimble J.
[1] On 5 August 2021, the defence raised an evidentiary issue; namely, whether Mr. Williams’ hotel registration cards from the hotels at which he stayed in Kitchener and Niagara Falls when he and the complainant allegedly went to each city to sell her sexual services, were inadmissible hearsay.
[2] The defence raised the issue again on 6 August. The Crown advised that it would call somebody from each of the hotels to prove the registration cards.
[3] The issue arose again on 11 August. It was clear that all witnesses to follow the complainant were going to deal with the question of the hotel registration cards at least in part. The Crown had lined up witnesses for the hotels to follow the complainant. Therefore, the question had to be addressed. The defence insisted on a voir dire, with oral evidence. Since all the hotel witnesses were scheduled for that day, I sent the jury home and conducted the voir dire.
[4] Mr. Williams says that the hotel registration cards are hearsay and presumptively inadmissible. He objects to the admissibility of the hotel registration cards on three bases:
The Crown indicated on the pre-trial form that it did not intend to introduce hearsay.
The Crown did not meet the requirements of s. 30 of the Canada Evidence Act.
In response to my question about common law admissibility, the accused said that the Crown had failed to prove the urgency portion of the Khan test because the urgency was of its own making, due its failure to provide proper notice and disclosure.
[5] The Crown concedes that it did not meet its s. 30 CEA requirements for admissibility. The Crown argued, however, that the registration cards are admissible under the common law exception to the hearsay rule for business records. It called a live witnesses from each hotel who attested to the fact that the record was made in the usual and ordinary course of business, and the photocopy in exhibit in the trial was a photocopy of their original record (although in each case the original likely did not exist).
[6] As to Rule 28 and the pre-trial form, its purpose is to give the Defence and the Court notice of contemplated evidentiary issues, related applications, and the Crown’s position with respect to them, in order to simplify the issues at trial. The Crown stated in its pre-trial form that it would not introduce hearsay or rely on the exceptions to the hearsay rule at common law or on a principled basis. In fact, however, Mr. Williams has had constructive notice of the Crown’s intentions and has had disclosure of the documents since at least April 2017. He has suffered no prejudice.
[7] The parties agreed that I could look at both the transcripts of the preliminary inquiry on the question of the hotel records, and the evidence of Det. Curtis and Det. Const. Mendonca given on the voir dire with respect to Mr. Williams’ application that obtaining his hotel records was an unreasonable seizure and violated his Charter s. 8 rights.
Result
[8] The registration cards relating to the complainant’s stay at the hotels are not hearsay. She can identify them. She has attested to her stays at the hotels.
[9] The registration cards and related documents pertaining to Mr. Williams are excluded.
[10] The registration cards and related documents pertaining to Mr. Williams’s stays at the hotels are hearsay but are admissible for the truth of their contents under the common law exception to the hearsay rule for business records. The Crown, however, must be held to its representations to the Court and Defence set out in the July 2018 Pre-trial form in which the Crown represented that it would not rely on hearsay and the common law or principled exceptions to hearsay.
Facts
[11] In her KGB statement, the complainant said that Mr. Williams and she travelled to Kitchener for the night of the 30 to 31 January 2016, at his behest, so that she could sell her sexual services. She also said that from 13 to 15 February 2016, at the accused’s behest, the pair travelled to Niagara Falls so that she could sell her sexual services there. She indicated what hotels she stayed at. She also executed a consent to obtain those hotel records. She said that they stayed at the same hotel in Kitchener, although on different floors.
[12] On 19 April, D.C. Mendonca telephoned the Canada Best Value Motel in Kitchener that the complainant identified as the hotel at which she stayed. He spoke to “Dave”, identified himself as a Peel Regional Police Officer carrying on an investigation, and requested the registration for both the complainant and the accused. Dave said that he would have to obtain the records. The records were faxed to the officer on 10 May, 2016 and included the room registration cards for each of them, which showed their names, addresses, and telephone numbers. The registration cards also contained space for a car license number, make, colour, and year. The accused’s registration contained no automobile related information. In addition, there is a photocopy of the accused’s driver’s license.
[13] On the voir dire, the court heard from Sajjan Sidhu, the owner of the motel, now called the Victoria Motel. He identified the hotel registration cards marked as Exhibit 3 on the voir dire, as photocopies of the original registration cards from his motel, which the motel keeps in the usual and ordinary course of its business. He has not seen the original. He is uncertain whether they still have the original. They usually destroy documents after two to five years. He indicated that when police request records from him, they are generally given. Whether copies or the originals are given depends on the nature of the request.
[14] Mr. Sidhu identified the first card on Exhibit 3 as Mr. Williams; and the second the complainant’s. He indicated that they kept the photocopy or took a photocopy of Mr. Williams’ drivers license as well. He said that Dave was an employee of the motel for several months.
[15] He indicated that the first half of the guest registration card, containing the name address and phone number of the registrant, was filled out by the registrant and then signed. The date occupied, the fee and payment method, and the arrival and check out date are filled out by the employee.
[16] Pursuant to the authorization that the complainant completed, the police obtained the complainant’s registration form for the Days Inn and Suites at 5068 Centre Street, Niagara Falls, for the 13th to 15th February, 2016. The documents show not only the registration, but also show that the booking was made through booking.com and was paid for by a preauthorization and credit card.
[17] At the voir dire, the court heard from Ada Chang, the general manager of the Days Inn since 2019. She has been employed there since 2011. She identified the hotel registration cards marked as Exhibit 1 on the voir dire, as a photocopy of the original registration card for the complainant’s stay which the hotel keeps in the usual and ordinary course of its business. She has not seen the original and is uncertain whether they have it given their three year retention policy. She indicated that when police request records they are generally given. Whether copies or the originals are given depends on the nature of the request.
[18] On 26 April, 2016, Det. Curtis began searching for hotels in Niagara Falls within a small radius of the complainant’s hotel on the theory that Mr. Williams would want to remain close to the complainant. She entered the Howard Johnson Hotel by the Falls at 5905 Victoria Avenue and spoke to the manager, Sarah. Det. Curtis identified herself as a Peel Police Detective, that she was conducting an investigation, and asked for any registration cards in the name of the accused between 13 and 15 February, 2016. Det. Curtis never left the hotel lobby.
[19] Sarah printed from the computer a copy of the room registration for the accused. It showed the accused, his address, the dates of his arrival and departure, the number of guests, the room type he wanted, and the rate. It also showed the last four numbers of his Visa card by which he paid his room deposit. There was a scanned receipt for cash payment for the room, and a copy of a chit which showed that he drove a car, its make and colour, and its plate number.
[20] At the voir dire, the court heard from Kevin Liddle, the general manager of the Howard Johnsons at Niagara Falls since 2005. He identified the registration cards marked as Exhibit 2 on the voir dire as a copy of their original registration card for Mr. Williams for his stay from 13 to 15 February 2016, which the hotel keeps in the usual and ordinary course of its business. The room was secured with a pre-authorization on Mr. Williams’ Visa card although the receipt indicates he paid cash at checkout. In 2016, their policy was (and still is) to ask for photo ID to verify the guest. Since there was a pre-authorized credit card slip, no copy of the ID was kept. Mr. Liddle said that in 2016, if the police requested registration records, he would check with the owners, but the owners usually agreed to comply. He would have copied the information and given it to the police. In preparing for his evidence, he called up Mr. Williams’ profile on the computer which verified that he stayed in room 414 on the relevant nights. It also indicates the itemized charges that were made on the room.
[21] None of the witnesses from the hotels had any reason to doubt that the photocopy that they were given of their registration card was anything other than an accurate photocopy of the original.
[22] On 19 April, 2016, the police served on Mr. Williams a Notice of Intent re business records, advising him that the Crown intended to produce into evidence and rely on business records from the Days Inn and Canada’s Best Value Inn. He refused to sign the document. On 24 May, 2016, his counsel, Mr. Romain, asked in writing for each document from each institution to be itemized and then to provide copies of the same. Counsel followed up on 27 June, 2016. His requests went unanswered.
[23] In the judicial Pre-trial form the Crown submitted in July 2018, the Crown indicated that it would not be relying on hearsay or the principled or common law exceptions to hearsay. The Crown did not seek to amend the pre-trial form.
[24] Notwithstanding the foregoing, Mr. Williams had the documents at least as early as April 2017.
[25] Mr. Williams’ counsel concedes on this motion that all the records at issue were disclosed to Mr. Williams although he could not provide the dates of such disclosure.
[26] On the first day of the preliminary inquiry, all the hotel records at issue were marked as exhibits and the claimant was questioned on the Kitchener and Niagara Falls excursions and records (see: P.I. transcript, April 26, 2017, pages 75– 77, and 79 – 80). Mr. Romain cross-examined the complainant about the records and the excursions including the length of the stay, the purpose of the stay, when it was cut short, who paid for the rooms, who drove, who paid other expenses, and what the child minding arrangements were that the complainant made (see P.I. Transcript, February 2, 2018, at pages 43 – 46, and 53 – 56).
1. S. 30 CEA
The Law
[27] Section 30(1) of the Canada Evidence Act provides a statutory basis for the admissibility of business records or copies of business records. A business record under section 30(12) is admissible provided the proffering party gives notice to the other parties that meets the requirements of subrule 7, or calls oral evidence under subrules 1 and 6. Where oral evidence is heard about the business record because no notice has been given, the oral evidence must address whether the record is kept in the usual and ordinary course of business, and that it is authentic (see: R. v. Smith (2011) 85CR (6th) 343 (Alberta CA)).
[28] Subrule 3 provides that where the document proffered is a copy, it must be accompanied by affidavits with respect to its authenticity and explaining why the original could not be produced. No authority was given to me to suggest that where a witness proves the business record by viva voce evidence, the witness is prohibited from addressing authenticity and why the original could not be produced.
Analysis
[29] The hotel registration records are not admissible under s. 30 of the CEA. The Crown admits this.
2. Common Law Exception for Business Records
[30] The common law provides that business records were admissible without the necessity of the original makers of the notes being called as witnesses, does not require the giving of notice, and allows for statements of opinion and subjective impressions contained in those records to be admitted for the truth of their contents (see: Ares v. Venner, [1970] SCR 608). Ares deals with nursing notes although it has been extended to deal with other business records, in the civil context (see: Setak Computer Services Corp. v. Burroughs Bustiness Machines (1977), 15 OR (2d) 750 (H.C.)).
[31] Hearsay evidence may be admitted under an established common law exception or under the principled in R. v. Khan, [1990] 2 S.C.R. 531 (see also R. v. Li, 2013 ONCA 81).
[32] In Li, the issue was whether an officer’s testimony that the accused owned a vehicle was admissible since it was based on a Ministry of Transportation database search. The Crown did not seek to tender any MTO documents nor to prove the truth of their contents.
[33] The Court of Appeal held that the common law made exceptions for public and business records which “retain their vitality” despite statutory provisions that govern the same subject matter (see paragraph 33). The court referred to Khan but not to Ares, although the court clearly applied Ares in the criminal context.
[34] In Li, the court considered the Khan requirements of reliability and necessity of the proposed hearsay. Reliability was met because of the nature of the records and the way they came into existence. Necessity arose from society’s interest in getting to the truth of the matter. Rather than simply losing the entirety of the value of the evidence, it becomes necessary in the interests of justice to consider whether the evidence should be admitted nonetheless, in a second-hand form, as hearsay (see: para. 43).
[35] In R. v. Monkhouse, 1997 ABCA 227, the court likewise held that the CEA did not displace common law rules for the admissibility of hearsay. Indeed, section 36 said that the CEA did not derogate from any powers given by any existing act or existing at the time the law was enacted. In that case, the Alberta Court of Appeal specifically applied Ares in the criminal context.
Analysis
[36] The hotel records are admissible under the common law exception to the hearsay rule for business records.
[37] All of the records at issue meet the reliability criteria. Each was created in the normal, usual and ordinary course of the business of the hoteliers. That the documents proffered are photocopies is not an issue. Each hotelier confirmed that the photocopies were photocopies of their registration documents. I agree, however, that it would have been preferable to have the originals. The evidence of the hoteliers satisfies me, however, that the copies are copies of the original documents, and are reliable.
[38] With respect to necessity, Mr. Williams submits that the necessity criteria from Khan is not met because the necessity is a result of the less than optimal police investigation. In other words, had the Crown provided the appropriate notice under CEA section 30 and made the disclosure requested, it would not have had to call anyone to prove the documents nor would they have to be seeking to admit the documents as exceptions to the hearsay rule.
[39] Since necessity originates from society’s interest in getting to the truth of the matter, the interests of justice require that the hotel records should be admitted under the common law exception to hearsay for business records, notwithstanding that they are in a second-hand form.
3. The Judicial Pre-Trial Form
The Law
[40] Rule 28 of the Superior Court of Justice Criminal Rules provides that the Crown must serve and file a pre-trial conference report. Subrule 5 says that the Crown must set out its position with respect to all issues listed, which includes whether hearsay will be introduced and whether an application will be brought with respect to hearsay. Subrule 11 says that if either party changes any position recorded in the pre-trial conference, that party must notify the parties and the court of the change, in writing, and arrange for a further pre-trial.
[41] What jurisprudence there is on this Rule has interpreted the rule strictly.
[42] In R. v. S. (J.) (2008), 237 C.C.C. (3d) 326, the Court held that the Crown ought not to be able to resile at trial from any position it stated in the pre-trial form. The court held that this approach was consistent with the provisions of the criminal rule 28.04(11) and the Committee that recommended the rule. Nordheimer J. held, beginning at paragraph 20, that one function of a pre-trial conference is to narrow issues that must be resolved at trial. He relied on Hill J. in R. v. M. (R.) (2006), 83 O.R. (3d) 349 (Ont.S.C.J.), in which Hill J. said that in some cases “the Crown simply has to live with some bad decisions.”
[43] In both cases, the Crown stated a position in its pre-trial conference form and never sought to amend the form. The court, using a Charter section 24(1) remedy, held them to that position.
[44] R. v. S. (J.) has been followed in R. v. Kelly, 2015 ONSC 3536 and R. v. Lapps, 2018 ONSC 5728.
[45] Martins Ontario Criminal Practice 2021 has this to say at page 403
Where the Crown resiles from a position taken during a pre-trial conference without notifying the accused and that change impairs the accused's right to a fair trial, the trial judge has the jurisdiction under s. 24(1) to grant a remedy including holding the Crown to their earlier position. In R. v. S-R. (J.) (2008), 2008 CarswellOnt 8660, 237 C.C.C. (3d) 326 (Ont. S.C.J.), the prosecution advised the defence of their factual theory of the possession of the gun in the course of a pre-trial case conference. After pre-trial motions and the selection of the jury, the defence agreed to a number of admissions, including an admission reflecting the exact wording of the Crown's position with respect to the possession of the gun as between a third party and the accused. The prosecution refused to accept this admission and advised, for the first time, that they wished to leave open to the jury the question of possession of the gun. A party to a proceeding who states a specific factual position, knowing that the opposing side will rely on that stated position at trial, ought not to be permitted to resile from that position absent some compelling explanation for the change. Rather than granting a mistrial or an adjournment, in this case the trial judge found that the appropriate remedy was to hold the Crown to its earlier stated position. The Crown could be freed from the position if direct and credible evidence that was contrary to the earlier position came from a witness that the prosecution could not have reasonably anticipated.
[46] Rule 1.04 also applies and provides that the rules are intended to provide for the just determination of every criminal proceeding and shall be liberally construed to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.
[47] It does not appear that the jurisprudence has considered any ameliorating effect Rule 1.04 might have on Rule 28(11).
Analysis
[48] In its pre-trial form, filed for the July 2018 Judicial Pre-trial before Durno, J., the Crown indicated unequivocally that it was not going to introduce any hearsay, and was not going to rely on the principled or common law exceptions for hearsay. It never filed an amended form.
[49] The Crown argues that it would be an injustice to exclude Mr. Williams’ hotel records. One of the fundamental purposes of the pre-trial form is to narrow down the issues and prevent surprise at trial. In this case, the notice requirement has been met in all but name. Mr. Williams relies on technical non-compliance with rule 28. 04 (11). Mr. Williams, however, has had these hotel records since at least a year after his arrest. While the disclosure date is not known, they were in front of the preliminary inquiry judge in April 2017. Mr. Williams’ lawyer at the preliminary inquiry (also his lawyer at the trial) exercised his right of cross-examination on those records.
[50] As indicated, the jurisprudence, however, takes a harder approach, and I see no reason to depart from the sound reasoning of Hill J.and Nordheimer J., which concludes that the parties are to be held to their positions stated in the Pre‑trial form, unless they change them in writing and arrange for another JPT. In this case, as Hill J. said, the Crown must abide by a bad decision it made in July 2018.
Trimble J.
Released: August 13, 2021
COURT FILE NO.: CRIMJ(P)908/18
DATE: 2021 08 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
– and –
JONATHAN WILLIAMS
TRIAL RULING NO. 3 – HOTEL RECORDS
Trimble J.
Released: August 13, 2021