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Evidence - Hearsay - Principled Exception (5)

. R. v. Salvati

In R. v. Salvati (Ont CA, 2024) the Ontario Court of Appeal considered the admissibility of a photocopy of a bail recognizance, to which the defence objected on grounds that: "the uncertified photocopy was not admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5, and ... further that it was also inadmissible under the common law public or judicial documents exception to the hearsay rule":
[25] At trial, the Crown sought to tender as evidence an uncertified photocopy of the bail recognizance. The defence objected that the uncertified photocopy was not admissible under the Canada Evidence Act, R.S.C. 1985, c. C-5, and argued further that it was also inadmissible under the common law public or judicial documents exception to the hearsay rule, on the basis that a photocopy was not an “original record”. In response, the Crown submitted that the photocopy should be admitted under the principled exception to the hearsay rule. The trial judge agreed, and admitted the photocopy on this latter basis.

[26] On appeal, the appellant contends that the trial judge erred by relying on Crown counsel’s submissions to find that the necessity requirement of the principled exception had been established, and accordingly erred by admitting the document into evidence.

[27] The respondent agrees that in the circumstances of this case it was procedurally unfair for the trial judge to rely on the Crown’s submissions without giving the defence an opportunity to argue about whether the prosecution could rely on these submissions to establish necessity. However, the respondent argues that the photocopy was properly admissible on another legal basis that would not have required the Crown to establish necessity.

[28] We agree with the respondent that the photocopy was properly admissible under the common law public or judicial documents exception to the hearsay rule: see R. v. A.P. (1996), 1996 CanLII 871 (ON CA), 109 C.C.C. (3d) 385, at p. 390; R. v. W.B.C. (2000), 2000 CanLII 5659 (ON CA), 142 C.C.C. (3d) 490, at para. 32.

[29] The appellant’s argument at trial was that the photocopy was not admissible under this exception because it was not the “original” document that had been signed by the Justice of the Peace. However, the argument that the public or judicial documents exception does not apply to copies was rejected by this court in W.B.C., where Weiler J.A. explained at para. 39 (underlining added):
Another aspect of reliability is the need to establish the authenticity of the document. To be admissible at common law, the judicial document in question must be either (1) the original record; or (2) an exemplification of that record under the seal of the court: [R. v. Tatomir (1989), 1989 CanLII 7195 (AB CA), 51 C.C.C. (3d) 321 (Alta. C.A.)] at 327, citing Ewart, Documentary Evidence in Canada (1984), at 183, and Archbold: Criminal Pleading, Evidence and Practice, 43rd ed. (1988), at 1055. 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. [Emphasis in original.]
[30] In the case at bar, there was evidence already in the trial record that circumstantially confirmed the authenticity of the photocopy. The Crown put into evidence certified copies of four Informations that showed that the appellant had indeed entered into a new bail order on August 28, 2018, which was the date shown on the photocopied recognizance. Moreover, photos taken by the police during their search of the house show what appears to be another copy of the same recognizance, seemingly identical except for a “copy” stamp, that was found in one of the basement bedrooms, along with a copy of the appellant’s health card.

[31] Importantly, the defence at trial did not make any substantive challenge to the authenticity of the photocopy, but simply argued that it was inadmissible under the public or judicial documents exception because it was not an “original”. The trial judge seems to have accepted this argument, and for this reason chose to instead admit the document under the principled exception, which required the Crown to establish both necessity and threshold reliability. In view of W.B.C., this latter step was unnecessary.

[32] The Crown submits that although the trial judge admitted the photocopy of the recognizance on the wrong legal basis, we should uphold the appellant’s conviction on the breach of recognizance charge by invoking the curative proviso. We do not find it necessary to resort to the curative proviso in these circumstances. Unlike the situation in W.B.C., the trial judge did not erroneously admit otherwise inadmissible evidence, but merely admitted evidence on one legal basis that was properly admissible for the same purpose on a slightly different legal basis. In our view, his decision to admit the photocopy into evidence for the truth of its contents was not a “wrong decision on a question of law” that would have required a new trial unless the curative proviso can be applied.

[33] Were it necessary to do so, however, we would have applied the curative proviso. The trial judge’s decision to admit the document under the principled exception without giving the appellant a fair opportunity to respond to the Crown’s position on the issue of necessity did not cause him any substantial wrong or miscarriage of justice, since the document was properly admissible under a traditional hearsay exception that did not require the Crown to establish necessity.


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Last modified: 15-05-24
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