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Evidence - Phone Records. R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considered the admissibility of "phone subscriber information", here in a criminal apppeal:[238] The 226 phone subscriber information was admitted as evidence that the customer who obtained the phone – whoever they were – provided as their name, date of birth, and address, Mr. Ali-Nur’s name, date of birth, and address. The Crown’s position, and the position on which the trial judge instructed the jury, was that this was circumstantial evidence which could be considered with the other evidence at trial to infer that the 226 phone was Mr. Ali-Nur’s. In essence, the chain of inference involved weighing the unlikelihood that someone other than Mr. Ali-Nur would provide Mr. Ali-Nur’s name, date of birth, and address (minus the unit number) at the time of creating the phone account.
[239] The Crown did not rest its case for admissibility on the principled exception to the hearsay rule; rather, it relied on s. 30 of the Canada Evidence Act. Where a statutory or established hearsay exception applies, if the evidence meets the statutory or traditional exception, it is admissible except in “rare” cases: R. v. Mapara, 2005 SCC 23, [2005] 1 S.C.R. 358, at para. 15; R. v. Nurse, 2019 ONCA 260, 374 C.C.C. (3d) 181, at paras. 61, 63 and 89-93. Under s. 30 of the Canada Evidence Act, the threshold for admissibility of the subscriber information was whether the record was made in the ordinary course of business: R. v. Campbell, 2017 ONCA 209, at paras. 7-8; R. v. Chaudry, 2020 ONSC 7215, at para. 33.
[240] I see no error in the trial judge’s conclusion that the 226 subscriber information met the threshold for admissibility under s. 30 of the Canada Evidence Act in that it was made in the ordinary course of business. This conclusion was supported by the evidence on the voir dire. A representative from Freedom Mobile, which acquired Wind Mobile in 2016, testified that the subscriber information record was kept in the usual and ordinary course of business; that the database for Wind records had not changed since Freedom acquired Wind; that Freedom continued to use the same database that Wind used in its operations at the time of the trial; and that the subscriber information record had not changed since Freedom acquired Wind.
[241] The subscriber information was admissible for the proposition that the information in the subscriber record was what was provided by the customer when the pre-paid account for the 226 phone was opened. This is consistent with the purpose of the business records exception to the hearsay rule – that threshold reliability is established by the recipient of the statement’s business duty to record the information accurately. It was part of the staff person at Wind Mobile’s job to receive information from the customer and to record it accurately. The reliability concerns raised by the appellants with respect to the problem of people providing false and unverified information at the time of opening a pre-paid phone account bore on the further issue for the jury – whether to draw the inference that the 226 phone belonged to Mr. Ali-Nur based on the information in the subscriber information matching his name, address and date of birth – but not on the issue of threshold reliability of the phone company’s subscriber records. . R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal cited the Crown's evidentiary approach to admitting phone records:[231] At trial, the Crown sought to admit subscriber information for the 226 phone number as a business record under s.30 of the Canada Evidence Act, R.S.C. 1985, c. C-5, or alternately under the common law business records principles set out in Ares v. Venner, 1970 CanLII 5 (SCC), [1970] S.C.R. 608. The subscriber information for the 226 phone was the only record retained by Freedom Mobile in relation to that phone. By the time the police sought a production order for the Freedom Mobile records relating to the 226 phone, most of the records had already been purged by Freedom.
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[235] The trial judge admitted the 226 phone subscriber information. He found that appropriate notice had been given by the Crown as required by s. 30(7) of the Canada Evidence Act.[13] He held that the Crown had satisfied threshold reliability required for admission under s. 30 of the Canada Evidence Act – that the record was made in the ordinary course of business. He was satisfied that, because the evidence supported that the subscriber information in the Wind/Freedom Mobile records was made in the ordinary course of business, there was sufficient threshold reliability that the subscriber information correctly reflected the information provided by the subscriber at the time the record was created. The various issues that the appellants raised about the unreliability of subscriber information for burner phones and the phone companies not verifying identification were issues for the jury to weigh in the context of the evidence as a whole as to what inferences they could reasonably draw from the subscriber information.
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