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Canadian Criminal Evidence/Documentary Evidence/Private Documents

< Canadian Criminal Evidence | Documentary Evidence

General Principles

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Documents that are generated by someone other than a public institution, a court, financial institution, or business are admissible under statute and common law.

Investigation Records

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Records that re generated in the course of an investigation cannot fall within business records as they are not being kept within the ordinary course of business.[1]

It is important to distinguish records made from the investigation and those that are simply retrieved during the investigation.[2] Even materials such as the contents of a report that extracts from a larger body of records will be considered pre-existing.[3]

  1. ↑ See Digital Evidence in Criminal Law, 2011 at p. 21
    see also R v McWhinney [1992] M.J. No 625 (MBPC)
  2. ↑ e.g. R v B.(L.) [2009] BCJ No 1741 at para. 5-8 - production order for records from phone company
  3. ↑ Digital Evidence in Criminal Law at p. 21

Notice of Intention to Admit Documents

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Notice is usually required for submitting most forms of documentary evidence.

Nevertheless, appellate court have frequently refused to invalidate notices on technicalities of procedure.[1] The purpose of the notice provisions is to "simply the production of evidence" which would reduce the time and cost of criminal prosecutions.[2]

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.

</ref> there must be at least 7 days notice.


  1. ↑ e.g. R. v. Good et al. 1983 ABCA 141 at 7
  2. ↑ Good at 7

Form of Service

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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.[1]

  1. ↑ R. v. Cordes (1978), 40 C.C.C. (2d) 442, (ABCA) aff’d [1979] 1 S.C.R. 1062

Party to Serve

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Service is usually served upon counsel for the party. [1] However, service on an assistant or secretary is also permitted.[2] Service on relatives of the accused is not always sufficient.[3] Service by fax machine to the counsel's address is satisfactory.[4]

Service must be proven by oral evidence and not simply affidavit.[5]

Notice of certificates of analysis of drugs seized must be made to be admissible. Simply providing disclosure does not constitute notice. [6]

  1. ↑ R. v. Fowler, (1982), 2 C.C.C. (3d) 227 (N.S.C.A.)
    R. v. Vollman, (1989), 52 C.C.C. (3d) 379 (Sask.C.A.)
  2. ↑ R. v. Page (1989) 8 W.C.B. 339 - CA009333 (B.C.C.A.)
  3. ↑ R. v. Lewis (1972), 6 CCC 189 (Ont.CA)
    R. v. Godon, (1984), 12 C.C.C. (3d) 446 - found sufficent
  4. ↑ R. v. Dillon, 2005 CanLII 22212 (ON S.C.) [1]
  5. ↑ R. v. Veinot (1983), 3 CCC 113 (NSCA)
  6. ↑ R. v. Cardinal, 2010 NWTTC 16 [2]

Proof of service

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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.[1]

  1. ↑ R v Lorenz, 2011 SKPC 164 at 21

See Also

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