Court File and Parties

Court File No.: 505/22 Date: 2023-06-23

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

His Majesty the King Applicant Henry Limheng, Counsel for the Crown

- and -

Heaven-Lee Boutilier Respondent Cormac Donovan, Counsel for the Respondent

HEARD: June 21, 2023

THE HONOURABLE JUSTICE M. BORDIN

Reasons for Decision

Overview

[1] Heaven-Lee Boutilier is charged with one count of Fraud Over $5,000 and one count of Uttering a Forged Document.

[2] The Crown seeks to admit RBC banking records for the truth of their contents to establish that copies of the cheques tendered are digital copies of the originals, are made out to the person named on the cheque, the account against which they are cashed, and the amount of the cheques. The RBC records consist of two monthly account statements and copies of cheques.

[3] The Crown also sought admission of Tangerine banking records containing account information, copies of cheques and electronic account printouts of transactions on an account.

[4] The Crown asserts these banking records are admissible for the truth of their contents as real evidence, under the s. 30 business records provision of the Canada Evidence Act (“CEA”), and the common law business records exception. The Crown did not seek admission of the RBC records under s. 29 of the CEA.

[5] In support of its motion with respect to the Tangerine records, the Crown relied on the preliminary inquiry evidence of Mr. Evans. Mr. Evans is a financial crime investigator with Tangerine Bank at the relevant time. The Tangerine records were produced pursuant to a production order. Mr. Evans identified the Tangerine database as the source of the Tangerine bank records. He testified that the Tangerine database was 100 percent accurate.

[6] Mr. Evans also swore an affidavit in which he deposed that:

a. the records of entries at Tangerine were done in the usual and ordinary course of business and are maintained in the custody and control of Tangerine; and

b. the Tangerine bank records are true copies of ordinary records of Tangerine which were made in the usual and ordinary course of business at the times indicated.

[7] No such evidence was called with respect to the RBC records. In support of its motion with respect to the RBC records, the Crown relied on the testimony of Mr. Coulombe, owner of Carlington Construction Inc. The Crown’s explanation is that the RBC banking records were being tendered through Mr. Coulombe and his company as holder of the account, not through a production order or through the RBC.

[8] Ms. Boutilier concedes that the threshold admissibility of the Tangerine banking records has been satisfied but the weight, reliability and significance of the records is a matter for the trial judge. The Crown agrees that resolves the issue with the Tangerine records.

[9] The Crown concedes that no evidence was tendered from RBC to satisfy any evidentiary requirements to establish that the RBC records are real evidence or can be admitted pursuant to ss. 29 and 30 of the CEA, or the common law business records exception. The Crown asserts that I can take judicial notice of the necessary evidentiary requirements and can rely, as supplemental evidence, on Mr. Coulombe’s evidence.

[10] With respect to the RBC documents, Ms. Boutilier says that there is no evidentiary foundation for admission of the RBC banking records pursuant to the common law business exception, the Canada Evidence Act, or as real evidence. Further, Ms. Boutilier says that it is not appropriate to take judicial notice of evidence that is mandated by the CEA for the admission of banking and business records.

Mr. Coulombe’s Evidence

[11] On or about March 14, 2020, Mr. Coulombe’s personal corporate work vehicle was stolen. There was a company cheque book inside the vehicle. The cheque book was associated with an RBC account. Mr. Coulombe was the only one with authority to issue cheques on the RBC corporate account.

[12] Mr. Coulombe identified the RBC bank statement dated February 29, 2020 to March 31, 2020, as being a bank statement of Carlington Construction Inc.’s RBC account. He also identified cheques numbered 183 through 186 as being corporate cheques which he did not write or sign. He said that the bank statements and cheques are received from the bank and available online as part of the monthly banking fees paid to the bank. Mr. Coulombe did not identify the second bank statement the Crown seeks to have admitted.

Law and analysis

[13] Parliament has legislated the admissibility of records such as the RBC records. As the Crown did not proceed under s. 29 of the CEA, I raised the section with both parties in submissions.

[14] Section 29 of the CEA addresses the requirements for admission of a copy of any entry in any book or record kept in any financial institution as proof of the entries and of the transaction and accounts in the record. Specifically, s. 29 of the CEA provides:

Copies of entries

29 (1) Subject to this section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions and accounts therein recorded.

Admission in evidence

(2) A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a true copy of it, and such proof may be given by any person employed by the financial institution who has knowledge of the book or record or the manager or accountant of the financial institution, and may be given orally or by affidavit sworn before any commissioner or other person authorized to take affidavits.

financial institution means the Bank of Canada, the Business Development Bank of Canada and any institution that accepts in Canada deposits of money from its members or the public, and includes a branch, agency or office of any of those Banks or institutions;

legal proceeding means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration.

[15] The decision of the Alberta Court of Appeal in R. v. Brar, 2020 ABCA 398, application for leave to appeal dismissed , was not, but should have been, brought to the court’s attention. Brar set out the purpose of s. 29 of the CEA:

[28] The purpose of s 29 of the CEA is to permit true copies of financial institutions’ books or records to be entered into evidence, thereby relieving those institutions and their customers from the inconvenience of having to bring their original books and records into court “for production in legal proceedings and to facilitate the proof of the matters entered in bank records”: R v McMullen at para 7, 100 DLR (3d) 671 (ONCA) [McMullen].

[16] At paras. 31 and 32, the court in Brar considered what proof must be provided under s. 29, who may provide it, and how the proof may be provided:

[31] The statutory language is clear: “A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry”,

(a) one of the ordinary books or records of the financial institution;

(b) that the entry was made in the usual and ordinary course of business;

(c) that the book or record is in the custody or control of the financial institution; and,

(d) the copy is a true copy of it.

Proof may be given “orally or by affidavit sworn before any commissioner or other person authorized to take affidavits.”

[32] The section stipulates that “any person employed by the financial institution who has knowledge of the book or record or the manager or accountant of the financial institution” may provide such proof (emphasis added), which supports the interpretation that only general knowledge is required by a s 29 affiant or witness.

[17] At paras. 35 through 40, the Alberta Court of Appeal in Brar considered the legal authorities, s. 29’s long history, and confirmed that “[i]t is incontestable that computerized records of a financial institution qualify as “records” under s. 29.”

[18] Finally, at para. 42, the Alberta Court of Appeal noted that the legislation and the case law speaks to a low threshold for the admission of records under both ss. 29 and 30 of the CEA.

[19] However, there must be some evidence to satisfy the statutory requirement. The evidence must come from an appropriate person at the financial institution. Mr. Coulombe is not such a person. Further, the evidence of Mr. Coulombe does not establish that the RBC records are of the ordinary books or records of the financial institution, that the entries were made in the usual and ordinary course of business, that the records are in the custody or control of the financial institution, and the copy is a true copy of it. This may perhaps be assumed, but that is not evidence.

[20] The Crown has not been able to direct me to legal authority for the proposition that it is not necessary to have an evidentiary record to support the admission of bank statements or cancelled cheques. Instead, the Crown urges the court to take judicial notice of the required evidence.

[21] Essentially, the Crown asserts that bank records such as the RBC statements and copies of the cheques are records recorded and generated by computers and automatically reflected in the account in question. Further, the Crown submits that businesses and individuals routinely rely on and act on bank statements, such as the RBC account statements. It may be that this is so notorious or generally accepted as not to be the subject of debate among reasonable persons and would be capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[22] While it is tempting to accede to the Crown’s request to take judicial notice, in my view it is improper to do so. First, I am mindful of the warning in R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 60-62 that the permissible scope of judicial notice should vary according to the nature of the issue under consideration and that more stringent proof may be called for of facts that are close to the dispositive issues between the parties. The RBC records sought to be admitted are very close to the dispositive issues here and the facts the Crown is required to prove to establish the elements of the offence.

[23] Secondly, taking judicial notice of the necessary facts to support admission of the RBC records would subvert and circumvent s. 29 of the CEA which sets out the evidence required to be tendered to admit bank records. I am not prepared to do so.

[24] Instead of proceeding under s 29 of the CEA, the Crown urges the court to admit the RBC records under the statutory or common law business records exception and to take judicial notice of the necessary evidence. The Crown has provided no authorities in which bank records such as the RBC records have been admitted in such a fashion.

[25] In my view, the evidence tendered by the Crown does not satisfy the test in Ares v. Venner, [1970] SCR 608. Mr. Coulombe did not give evidence that the records were made contemporaneously by him or someone having personal knowledge of the matters recorded, or that they were made in the ordinary course of business. I would have to read-in, assume, or take judicial notice of such evidence. For the reasons set out above, I am not prepared to do so.

[26] The Crown says that the RBC records can be admitted for the truth of their contents pursuant to the less stringent requirements in s. 30 of the CEA. I do not agree.

[27] Section 30(1) of the Canada Evidence Act provides a mechanism for admitting business documents:

30 (1) 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.

[28] The words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. As noted, s. 29 of the CEA specifically provides for admission of bank records. On the other hand, s. 30 addresses records made in the usual and ordinary course of business generally. There would be no need and no point to s. 29 if the bank records could be admitted under s. 30 of the CEA. Reading the sections together with a view to the scheme and object of the CEA, it is my view that the legislature intended financial institution records to be admitted pursuant to s. 29, not s. 30.

[29] Finally, the Crown submits that the RBC records can be admitted for the truth of their contents because they are real evidence. As noted by the court in R. v. Aremu, 2018 O.J. No. 2461, there is support in recent authorities for the proposition that where electronically stored information was recorded by an automated process, the evidence is real evidence, not hearsay. As such, it is admissible for the truth of its contents. However, if the electronically stored information is created or input by human beings as a record of their observations or statements, then the evidence is not real evidence and is not admissible for its truth without some other rule of admissibility such as the business records exception in section 30 of the Canada Evidence Act: see Aremu para. 6 and the authorities referenced therein and R. v. Mondor, 2014 ONCJ 135, at paras. 17 through 19.

[30] No authority was provided admitting bank records as real evidence. The authorities tendered by the parties indicate that evidence must still be led to establish that the electronic evidence is real evidence. No such evidence was tendered by the Crown.

[31] Finally, admitting bank records as real evidence in the face of s. 29 of the CEA appears to be unnecessary. If it were possible to do so, it should at least require the same level of proof as is required by s. 29. The Crown has not tendered the necessary evidence and for the reasons set out above, I am not prepared to take judicial notice of the necessary evidence.

Conclusion

[32] The Crown has not led evidence on this motion to establish the admission of the RBC records pursuant to s. 29 of the CEA or common law. Section 30 of the CEA is not applicable, but if it were, the Crown has not led the necessary evidence.

[33] On the evidence before me, the Crown’s motion is dismissed.

M. Bordin, J. Released: June 23, 2023