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Canadian Criminal Evidence Documentary evidence

Wednesday, December 17, 2014 - Court -

Documentary evidence is any kind of evidence on which relevant information is printed upon.
[1] This generally includes paper records, such as court documents, business records, personal papers, etc.
It can also include electronic documents
[2] or materials reducible to writing that is stored on machines, including:
[3]tape recordings
[4]video tapes microfiche
[5] computer records

Documentary evidence in civil matters governed by provincial legislation have a variety of definitions in different jurisdictions.

[6] Admissibility
All documents must be authenticated and established as relevant before they can be tendered into evidence. This is done either by oral or affidavit evidence.

The standard used to authenticate the document depends on whether the document is submitted as hearsay (where the contents of the letter helps establish some fact) or as non-hearsay (where the contents of the document is not relevant).
Non-Hearsay Documents

Documents that are used for non-hearsay purposes are admitted in the same way real evidence is admitted, which is by calling viva voce evidence of the person who can speak to it’s creation, use and the context of the document. The contents of the document need not be accurate, and where the witness cannot speak to the accuracy of the contents of the document, the contents will have little weight.

An example where the contents has no bearing is if a party were to attempt to establish that a letter was simply received by a person, which may have relevance to a case concerning actions prompted by the letter, the letter can be put into evidence by calling the person who received the letter and can confirm that it was the letter that they received and speak to the context of its receipt. By contrast, an example of a non-hearsay document where the contents is attested to as accurate is where a report is being tendered and the authenticating witness is the author of the report.

The document need not be an original, but rather can be authenticated by the witness as a fair and accurate representation of the document received.

Hearsay Documents
Documents that are submitted for the truth of their contents in lieu of oral evidence must generally be authenticated by someone who can speak with personal knowledge of the contents of the document. This can be direct personal knowledge or circumstantially personal knowledge.

The admissibility of documents for the truth of their contents is governed both by the common law and by statute, such as the Canada Evidence Act. The statutory law on documents compliments the common law, making alternative options for admissibility.[7]
There is exception to this requirement under s. 29 (financial institution documents) and s. 30 (business records) of the Canada Evidence Act, as well as several other statutory hearsay exceptions.

Best Evidence Rule
Where the contents of a document are material to the case, the best evidence rule (or "documentary originals rule") requires that the party submit the original unless the party is unable to do so. The court can accept a secondary copy where it is satisfied that the original was lost, destroyed or otherwise unavailable.[8]
This rule arises from a time before the advent of computers and photocopiers when all copying was done by hand. It sometimes criticized as a rule that has outlived its purpose.[9] There is some suggestion that a lack of original will merely go to weight.[10]
Nevertheless, the best evidence rule is part of the common law. There are a number of statutory enactments that allow for exemption to this rule, such as CEA s. 29 [financial records], 30(3) [business records], 31(2)(c)[government records] [11].
Admissibility of Specific Types of Documents

Any document can be admitted without proof where the opposing party consents.[12] Further, under s. 37(6.1) the court has a residual power to"receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence."[9]
There are generally three categories of documents:
public documents
judicial documents
private documents
Public Documents
Legislation and regulations
Under s. 19, 20, 21, and 22 of the Canada Evidence Act, Acts of Parliament and provincial legislation is admissible without proof.[13] There is no need for certification, and all copies are deemed admissible unless proven otherwise.
Official Government Documents
Section 24 states:
Certified copies

24. In every case in which the original record could be admitted in evidence,

(a) a copy of any official or public document of Canada or of any province, purporting to be certified under the hand of the proper officer or person in whose custody the official or public document is placed, or

(b) a copy of a document, by-law, rule, regulation or proceeding, or a copy of any entry in any register or other book of any municipal or other corporation, created by charter or Act of Parliament or the legislature of any province, purporting to be certified under the seal of the corporation, and the hand of the presiding officer, clerk or secretary thereof, is admissible in evidence without proof of the seal of the corporation, or of the signature or official character of the person or persons appearing to have signed it, and without further proof thereof.

R.S., c. E-10, s. 24.

– [10] Certificates of provincial incorporation can be admitted under s. 24 and 37 of the CEA.[14]

Aeronautical charts produced by the Government of Canada are admissible without notice due to their inherent reliabillity.[15]
Police documents
Judicial Documents
Judicial Proceedings
Under s. 23, records of judicial proceedings may be entered in as evidence:
Evidence of judicial proceedings, etc.
23. (1) Evidence of any proceeding or record [before any court in Canada for foreign court] or before any justice of the peace or coroner in a province, may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal of the court or under the hand or seal of the justice, coroner or court stenographer, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice, coroner or court stenographer or other proof whatever.

– [11] Court Orders and Documents

An information and probation order that were not made under seal or signed by a judge of the court (thus not admissible under s. 23 of the CEA[12]) are admissible as a public document defined in s. 24(a) under the common law.[16] To be admissible it must:
be made by a public official upon whom a public duty had been imposed
made by the public official in the discharge of a public duty or function
intended to serve as a permanent record;
were available for public inspection.
[17]
In proving probation order, an original certified copy of the order may be submitted as an exhibit without notice at the common law.[18]. This likewise is the case in proving an order of disqualification from driving.

[19]Private Documents
Unless provided by statute, all private documents must be proven to be admissible.
It is usually necessary to prove execution before proof of contents.[20] Execution may be proven by inference.[21]
Business Records
Business Records
Financial Institutions
Financial Institution Records

Other
Section 25 concerns the admissibility of documents of a "public nature":
Books and documents
25. Where a book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, and no other Act exists that renders its contents provable by means of a copy, a copy thereof or extract therefrom is admissible in evidence in any court of justice or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence, if it is proved that it is a copy or extract purporting to be certified to be true by the officer to whose custody the original has been entrusted.

This typically would include books available in a library, newspapers, website printouts, brochures, and other documents that are readily accessible in public.
Notice of Intention to Admit Documents

Notice is usually required for submitting most forms of documentary evidence.
Nevertheless, appellate court have frequently refused to invalidate notices on technicalities of procedure.[22] The purpose of the notice provisions is to "simply the production of evidence" which would reduce the time and cost of criminal prosecutions.[23]
Notice by Category of Documents
Public and Judicial Documents
All documents and records, whether private or public, are addressed under s. 28 of the Canada Evidence Act:
s. 28(1)

Notice of production of book or document
28. (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23, 24, 25, 26 or 27, on any trial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.
While government records are admissible under s. 24, s. 28 still requires that there be at least 7 days notice for their admission.[24] Late notice to produce documents however is not necessarily fatal.[25]
Common law
However, in proving the existence of a public document such as a probation order, driving prohibition order, an original certified copy of the order may be admitted at trial as an exhibit without notice at the common law.[26] This has been considered available under the hearsay exception for public documents and judicial proceedings.[27] However, it has been said that the court still retains the discretion to exclude these documents where the defence is prejudiced by the lack of notice.[28]
A regular copy of the document is all that is necessary to serve to comply with s.28 of the CEA. There is no requirement that the copy be certified.[29]
Police Documents
Notice of Intention to produce a certificates of analysis require notice. Where it is a certificate for a breathalizer test, section 258(7) applies:
No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h), or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

This requires that the crown prove that service was made, that it was made in a reasonable time, and that the notice communicated the intention to produce the materials at trial.
Where notice to produce a certificate of analysis is served upon an accused person, there is a rebuttable presumption that the person understand the notice.[30]
Private Documents
Other Documents and Records
Documents and records are addressed under s. 28 of the Canada Evidence Act:
s. 28(1)

Notice of production of book or document
28. (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23, 24, 25, 26 or 27, on any trial, unless the party intending to produce the copy has before the trial given to the party against whom it is intended to be produced reasonable notice of that intention.
Not less than 7 days
(2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.
there must be at least 7 days notice.
Form of Service
The form of notice is not specific in the legislation and so can be in many forms, including by the admission of the documenet in the preliminary inquiry hearing.[31]
Party to serve
Service is usually served upon counsel for the party. [32] However, service on an assistant or secretary is also permitted.[33] Service on relatives of the accused is not always sufficient.[34] Service by fax machine to the counsel's address is satisfactory.

[35] Service must be proven by oral evidence and not simply affidavit.

[36] Notice of certificates of analysis of drugs seized must be made to be admissible. Simply providing disclosure does not constitute notice.

[37] Proof of service It is not always necessary for a police witness recall the specifics of affecting service of a document. If it is a standard procedure that they can testify that they always follow, and there is no recollection of there being a failure ot follow the procedure, the judge may conclude that it was done properly.

[38] Misc Issues Signatures A signature is evidence suggesting the authorship of a document or knowledge and consent to the contents of it. Where a party disputes the authenticity or identity of a signature, the signature can be proven by comparison "with any writing proved [...] to be genuine". 

[39] Forged Documents Proving forged signature on documents will require an expert of handwriting analysis to determine the probability of matching the accused's signature and the document.
[40] Errors in Documents Certificates of analysis Errors and ambiguity in certificates of analysis in which there was a typographical error is not fatal to the case where it can be mended by way of viva voce evidence and where “the error was not of such a nature as to have misled the accused or to interfere with his right to make full answer and defense and receive a fair trial”.[41] Foreign Documents The admissibility of foreign documents is governed by section 36 of the Mutual Legal Assistance in Criminal Matters Act, RSC 1985, c 30 (4th Supp) (MLAC).

ADMISSIBILITY IN CANADA OF EVIDENCE OBTAINED ABROAD PURSUANT TO AN AGREEMENT Foreign records 36.

(1) In a proceeding with respect to which Parliament has jurisdiction, a record or a copy of the record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister by a state or entity in accordance with a Canadian request, is not inadmissible in evidence by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion. Probative value

(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under this Act, the trier of fact may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a state or entity, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the state or entity, including evidence as to the circumstances in which the information contained in the record or copy was written, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy. R.S., 1985, c. 30 (4th Supp.), s. 36; 1994, c. 44, s. 96; 1999, c. 18, s. 120. Foreign things 37. In a proceeding with respect to which Parliament has jurisdiction, a thing and any affidavit, certificate or other statement pertaining to the thing made by a person in a state or entity as to the identity and possession of the thing from the time it was obtained until its sending to a competent authority in Canada by the state or entity in accordance with a Canadian request, are not inadmissible in evidence by reason only that the affidavit, certificate or other statement contains hearsay or a statement of opinion. R.S., 1985, c. 30 (4th Supp.), s. 37; 1994, c. 44, s. 97; 1999, c. 18, s. 120. Status of certificate 38. (1) An affidavit, certificate or other statement mentioned in section 36 or 37 is, in the absence of evidence to the contrary, proof of the statements contained therein without proof of the signature or official character of the person appearing to have signed the affidavit, certificate or other statement. Notice (2) Unless the court decides otherwise, in a proceeding with respect to which Parliament has jurisdiction, no record or copy thereof, no thing and no affidavit, certificate or other statement mentioned in section 36 or 37 shall be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced seven days notice, excluding holidays, of that intention, accompanied by a copy of the record, copy, affidavit, certificate or other statement and unless, in the case of a thing, the party intending to produce it has made it available for inspection by the party against whom it is intended to be produced during the five days following a request by that party that it be made so available. Service abroad 39. The service of a document in the territory over which the state or entity has jurisdiction may be proved by affidavit of the person who served it. R.S., 1985, c. 30 (4th Supp.), s. 39; 1999, c. 18, s. 121.

http://laws-lois.justice.gc.ca/eng/acts/C-5/FullText.html

In reply of

If the judge finds that the evidence is inadmissible

Audience: Public
by Vernon Beck
X In order to ensure that each party to a court case is given a fair trial, a judge strives to make certain that any evidence presented in a court of law or administrative proceeding is reliable, material, and relevant to the issues at hand. Testimo... More >>
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