Canadian Criminal Evidence/Documentary Evidence/Business Records

Common law

Business documents are admissible under the common law where they meet the following requirements:

1. it is an original entry;
2. it was made at the time of the event;
3. it was made in the routine of business;
4. it was made by a person who has personal knowledge of the thing recorded;
5. who had a duty to make the record; and
6. the maker had no motive to misrepresent

The fundamental rationale behind this rule that permits records being tendered into evidence without calling the author is not to avoid the inconvenience of bringing in the witnesses or because of no reasonable alternative. Rather it is premised on the documents having been created "under circumstances which makes them inherently trustworthy. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence."

Statute

Section 30 of the CEA allows "business records"--that is records from organizations other than financial institutions--to be tendered as evidence for the truth of their contents without needing the author of the documents to give evidence.

The admission of the record requires an affidavit setting out the requirements that make them business records and that there is timely notice to the defence of the record and affidavit no less than 7 days before their admission.

The purpose of section 30 is to provide a method of putting business records into evidence beyond what is permitted by the common law and principled hearsay exceptions.

If there is failure to provide notice, then the document can still be admissible at common law by having the affiant give viva voce evidence instead.

Business records to be admitted in evidence
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.

Inference where information not in business record
(2) Where a record made in the usual and ordinary course of business does not contain information in respect of a matter the occurrence or existence of which might reasonably be expected to be recorded in that record, the court may on production of the record admit the record for the purpose of establishing that fact and may draw the inference that the matter did not occur or exist.

– CEA

Unlike the common law, there is no requirement that the maker is under a duty to make it.

Business Records Defined

A business record is a form of an unsworn statement.

Under s. 30(12), business records include "the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced".

Under s.30(10), business records made "in the course of an investigation or inquiry" are not admissible as business documents.

When considering whether a computer stored information is a business record, the court should have regards to several factors:

1. Sources of Data and Information: there should be an identifiable source of the record and the source should be reliable
2. Contemporaneous Recording: the recordings should be made shortly after the events they record
3. Routine Business Data: the creation should be part of a routine of recording
4. Data Entry: there should be evidence of the process used to input the information
5. Industry Standards: where there is a standard, compliance with the standard should be shown
6. Business Reliance: there should be some demonstrated reliance on the records
7. System Continuity: there should be some evidence from the records keeper or system manager explaining the integrity of the system, including protections against tampering or errors

There is some suggestion that the method of printing out the document should be presented.

Section 30(10) clarifies that certain documents are not to be included as business documents. That includes:

• records made in the course of an investigation or inquiry,
• a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,
• a record in respect of the production of which any privilege exists and is claimed, or
• a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record;
• any record the production of which would be contrary to public policy; or
• any transcript or recording of evidence taken in the course of another legal proceeding.

Records Produced during the course of the investigation

Records produced during the course of the investigation include police notes and reports and any other documents that police create. As stated in reference to s.30(10), there is an exception to the rule of admissibility of such documents as business records. These types of documents cannot be admissible under s.30. This does not mean that they are not admissible under the common law.

Notice

Notice requirements for business records are addressed under s. 30(7) of the Canada Evidence Act [2]:

s. 30(7)

Notice of intention to produce record or affidavit

(7) Unless the court orders otherwise, no record or affidavit shall be admitted in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by that party.

Essentially, notice of intention to admit the documents as well as a copy of the document must be served on the other parties within seven days.

The purpose of the notice provision is to "alert the accused to the fact that the prosecution intends to produce a copy of the document at trial" It is intended to "prevent surprise" and "ensure that the accused is able to make full answer and defence".

Notice can be either formal or informal, even oral notice can be sufficient.

The court has discretion to exempt a party from this rule. For example, in R. v. Mahoney 1986 ABCA 195, the accused refused to acknowledge his record at the sentencing hearing. A written record was submitted and an officer testified to its reliability. The judge admitted the record but it was overturned on appeal.

Exemption should only be given where it will not prejudice the accused.

In R. v. Kennedy, 2008 NSPC 73, the judge refused to allow a printout from a computer screen with only one day notice.

Factors to be considered for exempting the notice provisions include:

1. The amount of notice given,
2. Amount of time prosecution had access to the notice,
3. Volume of evidence,
4. Reasonableness of any explanation for the delay,
5. Any prejudice created by the lack of notice.

See also: R. v. Bath, 2010 BCSC 1137; R. v. Bellingham, 2002 ABPC 41

Case Digests

• R. v. C.M., 2012 ABPC 139 - phone bill and text messages admissible for truth on short notice.