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Canadian Criminal Evidence/Documentary Evidence/Financial Institution Records

< Canadian Criminal Evidence | Documentary Evidence

Introduction

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Section 29 of the Canada Evidence Act recognizes the high degree of reliability in business documents from financial institutions by permitting "any book or record kept in a financial institution" to be admissible as evidence.

Statute

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Section 29 concerns documents of financial institutions:

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.

Cheques, proof of “no account”
(3) Where a cheque has been drawn on any financial institution or branch thereof by any person, an affidavit of the manager or accountant of the financial institution or branch, sworn before any commissioner or other person authorized to take affidavits, setting out that he is the manager or accountant, that he has made a careful examination and search of the books and records for the purpose of ascertaining whether or not that person has an account with the financial institution or branch and that he has been unable to find such an account, shall be admitted in evidence as proof, in the absence of evidence to the contrary, that that person has no account in the financial institution or branch.

Proof of official character
(4) Where evidence is offered by affidavit pursuant to this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.

...

R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.

– [1]

Principles

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For documents to be admissible under s. 29 of the CEA, the party seeking to admit the document must show that:

  1. the book or record was, at the time of making of the entry, one of the ordinary books or record of the financial institutions;
  2. that the original book or record is in the custody or control of the financial institution and
  3. the copy is a "true copy"

All these elements can be proven by way of affidavit usually from the manager or accountant of the institution. However, there is no specific requirement as to whom it must be from.

For the purposes of s. 29, "record" can include computer printouts.[1]

A "true copy" is any copy that can be said to be accurate in all essential particulars, so that no one can be misled as to the effect of the record.[2]

Notice

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Any records that are admissible under s. 29 do not need notice to produce.[3]

References

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  1. ↑ R v McMullen (1979) 47 CCC (2d) (Ont.C.A.)
    R v Bell (1982) 65 CCC (2d) 376 (Ont.C.A.)
  2. ↑ R v Morash (1982) 17 MVR 34 (SKQB) citing Commercial Credit Co. of Canada v Fulton Brothers, [1923] AC 798 (PC)
  3. ↑ 1.7 R. v. Best (1978), 43 C.C.C. (2d) 236
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