QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2013 SKQB 155 Date: 2013 04 23 Docket: Q.B.C. No. 30 of 2012 Judicial Centre: Melfort BETWEEN: HER MAJESTY THE QUEEN, and DELREE EMIL FLETT, Counsel: W. Dean Sinclair for the appellant Rosanne Newman, Q.C. for the respondent JUDGMENT ACTON J. April 23, 2013 [1] This is an appeal from the decision of the Provincial Court dismissing an application for a recognizance pursuant to s. 810.2 of the Criminal Code, R.S.C. 1985, c. C-46. The issue is whether the usual rules of evidence pertaining to criminal trials apply to s. 810 hearing. The Provincial Court judge ruled that the usual rules of evidence pertaining to criminal trials did apply and that hearsay evidence was inadmissible. [2] The judge also held that records kept by the Correctional Service of Canada (CSC) were inadmissible as business records under s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5. In reaching this decision the judge relied upon R. v. Fontaine, 2010 SKPC 16 (CanLII), 356 Sask.R. 229, which held that hearsay evidence is not admissible in s. 810.2 hearing. The judge also relied on R. v. Toulejour, 2012 SKPC 86 (CanLII), 398 Sask.R. 292, which reiterated the position that hearsay evidence is not admissible in s. 810.2 hearing and held as well that CSC documents are not admissible under the business record exception to the hearsay rule as enacted by s. 30 of the Canada Evidence Act. [3] The appellant submits that these are errors in law in that the usual criminal rules of evidence do not apply in s. 810 hearings. Even if the usual rules applied the judge erred in failing to follow previous decisions of this court which held that CSC documents are admissible business records under s. 30 of the Canada Evidence Act. SUMMARY OF THE FACTS [4] On March 5, 2009, the respondent was convicted of robbery with violence, assault causing bodily harm, assault and three counts of violating bail. He was sentenced to three years imprisonment. [5] In May 2010, the CSC referred the respondent’s case to the National Parole Board (NPB) with recommendation that he be detained until warrant expiry. The referral was made in accordance with s. 129(2) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (CCRA), in document entitled Assessment for Decision. Section 129(2) provides that the CSC must refer case to the NPB for detention hearing if the offender is serving sentence on Schedule offence, such as robbery, assault causing bodily harm or assault, the offence caused serious harm to another person and there are reasonable grounds to believe the offender is likely to commit another offence causing death or serious harm if he is released on parole. [6] On November 9, 2010, the NPB ordered the respondent be detained in custody until the sentence expired. The order was made pursuant to s. 130(3) of the CCRA. [7] Detention orders must be reviewed annually according to s. 131(1) of the CCRA, so the CSC prepared another assessment for decision in 2011 for the purposes of the annual review. The Board confirmed the detention order on October 5, 2011. As consequence, the respondent was not released from custody until the sentence expired in March 2012. [8] The NPB is required to give written reasons for any decision it makes and provide copy of those reasons to the offender. The NPB provided copies of its reasons to the respondent in November 2010 and in October 2011. The NPB also sent copies of its reason to the CSC. [9] Section 25(3) of the CCRA directs the CSC to provide police with relevant information about an offender who is going to be released on warrant expiry if the CSC believes the offender poses threat to any person. As consequence of that law, Karen Johansen, parole officer employed by the CSC, compiled package of CSC records relating to the respondent. She sent these records to Corporal Brian Haswell. Cpl. Haswell is the High Risk Violent Offender Unit Coordinator for the RCMP in Saskatchewan. [10] This package of materials may be conveniently referred to as the “warrant expiry package”. In this case, the warrant expiry package included criminal profile report, the assessment for decision reports and copies of the Board’s reasons for ordering detention. [11] Based upon his review of the records, Cpl Haswell swore the information under s. 810.2 of the Criminal Code stating that based upon his review of the file he believed there were reasonable grounds to believe that the respondent would likely commit serious personal offence as defined in s. 752 of the Criminal Code. [12] The application was set for hearing which commenced in August 2012. The Crown called two witnesses. Karen Johansen was called to identify the contents of the warrant expiry package as CSC records and to testify about the contents of some of those documents. Corporal Haswell was called to testify that he reviewed the warrant expiry package and swore the information. [13] The Crown applied to have the criminal profile report, the assessment for Decision reports and the NPB’s reasons for ordering detention admitted into evidence. The defendant opposed the admission of these documents. [14] The court decided as stated earlier based on R. v. Fontaine, supra, and R. v. Toulejour, supra, that the normal criminal rules of evidence apply to s. 810 hearings. The judge refused to allow the admission of the criminal profile report and the assessment for decision reports as well as NPB reasons for ordering detention. Respecting the business rules exception the judge held that the criminal profile report was inadmissible because it was copy and copy is only admissible if it is accompanied by supporting affidavits as described in s. 30(3) of the Canada Evidence Act. [15] Section 30(3) states: (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), copy of the record accompanied by two documents, one that is made by person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is (a) an affidavit of each of those persons sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. [16] The Provincial Court judge ruled that the NPB’s written reasons for detaining the respondent in November of 2010 and October 2011 were inadmissible because they were not signed. For this she relied on s. 145 of the CCRA in support of the conclusion which states: 145. decision, order, warrant or certificate purporting to be signed by member of the Board or person designated by the Chairperson of the Board is admissible in any court and is evidence of its contents without proof of the signature or official character of the person appearing to have signed it. [17] With respect to the assessment for decision reports, the court ruled that they were inadmissible because they were created for litigation purposes as referred to in s. 30(10)(a)(ii) of the Canada Evidence Act which states: (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be ... (ii) record made in the course of obtaining or giving legal advice or in contemplation of legal proceeding, ... [18] Section 810.2 of the Criminal Code has always been accepted as crime prevention measure. Numerous cases have confirmed the admissibility of hearsay evidence in s. 810 hearings. [19] These include: R. v. Budreo (2000), 2000 CanLII 5628 (ON CA), 142 C.C.C. (3d) 225, 183 D.L.R. (4th) 519 (Ont. C.A.), wherein the Ontario Court of Appeal stated at para. 52: 52 Moreover, although an informant’s fear triggers an application under s. 810.1, under subsection (3) recognizance order can only be made if the presiding judge is satisfied by “evidence” that the fear is reasonably based. Section 810.1(3) therefore requires the judge to come to his or her own conclusion about the likelihood that the defendant will commit one of the offences listed in subsection (1). Although the “evidence” the judge relies on might include hearsay, recognizance could only be ordered on evidence that is credible and trustworthy. R. v. George, 2007 ONCJ 16 (CanLII), 73 W.C.B. (2d) 45, which states at para. 8: With respect to the issue contested before me, as to the kinds of evidence appropriately put forward on the s. 810 application, am guided by the Court of Appeal decision in R. v. Budreo. The Court was very clear that the kinds of evidence properly received could include hearsay and other secondary information so long as it is “credible and trustworthy”. therefore have no hesitation in proceeding on the basis that such evidence is receivable so as long as exercise due caution in weighing the ultimate value of the information. R. v. MacDougall, 2006 NBPC 23 (CanLII), 306 N.B.R. (2d) 335, which states at para. 18: 18 There are many proceedings in our criminal law and Criminal Code that allow evidence that does not meet the admissibility rules prescribed for criminal trials to be admitted and serve as the basis for decision. By criminal trial admissibility rules, of course, is meant the standard to be met when the burden is proof beyond reasonable doubt. Some examples of what might be referred to as proceedings in which the relaxed standard of admissibility is employed include: 1) sentence hearing during which submissions and evidence are received pursuant to Section 723 of the Criminal Code and disputed evidence is adjudicated upon, pursuant to section 724(3)(b) of the Criminal Code, (with the exception of an aggravating circumstance that is in dispute in which case the circumstance must be proved beyond reasonable doubt pursuant to section 724(3)(e)). See, especially, Section 723(5) of the Code which specifically allows for the admission of hearsay evidence. See, also, R. v. Albright, 1987 CanLII 26 (SCC), [1987] S.C.R. 383 (S.C.C.) 2) An application to detain an accused person in custody at bail hearing. See Section 518(1)(e) of the Criminal Code allowing the admission of evidence considered credible or trustworthy by the judge adjudicating the hearing. See, also, R. v. Julian (1972), 20 C.R.N.S. 227 (N.S.S.C.T.D.); R. v. Wilson, 1997 CanLII 11345 (SK QB), [1997] S.J. No. 610 (S.Q.B.) 3) An application pursuant to Section 742.6 of the Criminal Code that regulates the hearing into an alleged breach of conditional sentence order. See Sections 742.6(4) and (5) of the Code. See, also, R. v. Carpentier (2006), 2005 MBCA 134 (CanLII), 34 C.R. (6th) 395 (M.C.A.) 4) An application to extradite person from Canada to foreign state for prosecution for criminal offence pursuant to Section 29 of the Extradition Act, S.C. 1999 Ch. 18. See, particularly, Sections 32(1)(a) and (b) of the Extradition Act. See, also, United States of America v. Ferras; United States of America v. Latty, 2006 SCC 33 (CanLII), [2006] S.C.J. No. 33 (S.C.C.) at paragraphs 52‑60; 5) An application for firearms prohibition order pursuant to Section 111 of the Criminal Code. See, particularly, Section 111(3) of the Criminal Code that allows for the admission of “all relevant evidence presented by or on behalf of the applicant and the person against whom the order is sought.” See, also, R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.R. 1378 (S.C.C.) at paragraphs 17‑19. 6) An application for peace bond pursuant to section 810 of the Criminal Code in which the standard of proof for the trier of fact is reasonable ground to believe. See, R. v. Budreo, 2000 CanLII 5628 (ON CA), [2000] O.J. No. 72 (O.C.A.) [Emphasis added] R. v. West, [2004] O.J. No. 3243 (QL) (Ont. Sup. Ct.), which states at para. 27 Not only have trial courts been instructed to be more receptive to hearsay at the trial phase of proceedings, but credible hearsay is now routinely relied upon in investigative, pretrial applications such as for search warrants, wiretap and video authorizations, general warrants, firearms prohibitions,” bail hearings, s. 810.01 recognizance hearings and in applications for restrained funds to pay legal fees. See R. v. Allan, 2003 CanLII 1935 (ON SC), [2003] O.J. No. 2466, where Nordheimer J. expressly permitted hearsay evidence in an application for restrained funds. R. v. Falle, 2001 ABPC 36 (CanLII), 285 A.R. 391, which states at para. 13 For the reasons given, direct that the reports of the Corrections Canada officials be entered as exhibits without the necessity of their authors being called. R. v. Teneycke, 2008 SKQB 239 (CanLII), 317 Sask.R. 138, where Justice Rothery stated at para. 8: The Crown did not call the authors of the reports, nor did defence seek to cross‑examine them. As stated in R. v. Falle, [2001] A.J. No. 192, 2001 ABPC 36 (CanLII) at para. 10, this is an acceptable procedure because the reports are made in the normal course of business. Ketchum P.C.J. endorsed the observations of Martin J. in R. v. Bilida 1999 ABQB 1016 (CanLII); (1999), 256 A.R. 336 at para. 5: In my opinion the phrase “satisfied by the evidence adduced” does not require formal sworn evidence such as viva voce evidence commonly called in criminal proceedings. Rather, think the phrase also contemplates information tendered to the court by counsel in the form of oral submissions. ... and most recently, in R. v. Klein, 2011 SKQB 94 (CanLII), 369 Sask.R. 273, where Justice Gerein stated at paras. 21 and 22: 21 Section 810 does not create criminal offence, but rather it seeks to prevent the commission of criminal offence. It is preventative rather than punitive. The burden of proof rests upon the Crown and requires proof on balance of probabilities. 22 The test is both subjective and objective. It must be established (1) that the victim actually fears personal injury and (2) that there are reasonable grounds for the fear. See R. v. Banks, 1995 CanLII 5974 (SK QB), [1995] W.W.R. 698, 129 Sask. R. 147 (Q.B.) at paras. 18 to 22; and more recently, R. v. MacLeod, 2005 BCPC 108 (CanLII), (2005) (P.C.), [2005] B.C.J. No. 798, (QL) wherein at para. this summary is found: The burden of proof is that the applicant under s. 810 is not required to prove beyond reasonable doubt, but rather prove on balance of probabilities. The test is twofold: the Crown must establish (1) that the informant actually fears that the defendant will cause personal injury to him; and (2) reasonable grounds exist for the informant's fear. The first condition is subjective, while the second is objective; namely, the Crown must establish subjectively the informant's belief and whether his belief is objectively founded. [20] Gerein J. also sets out that the standard of review is correctness on question of law. [21] It is also noted in R. v. Budreo in referring to s. 810.1 which is similar to s. 810.2 wherein it states at paras. 29 To characterize s. 810.1 as punitive, as creating an offence, the appellant would have to show that its purpose is “to mete out criminal punishment” or that it has “true penal consequence.” true penal consequence, according to the Supreme Court of Canada in R. v. Wigglesworth, 1987 CanLII 41 (SCC), [1987] S.C.R. 541, is “imprisonment or fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large ...” 30 By these standards, s. 810.1 does not create an offence. Its purpose is not to punish crime but to prevent crime from happening. Its sanctions are not punitive, nor are they intended to redress wrong; they are activity and geographic restrictions on person's liberty intended to protect vulnerable group in our society from future harm. [Emphasis added] [22] The issue has also been dealt with by the Supreme Court of Canada in similar provisions of the Criminal Code, which are preventative and relate specifically to firearms prohibition hearings under s. 98 of the Criminal Code. In R. v. Zeolkowski, 1989 CanLII 72 (SCC), [1989] S.C.R. 1378, 50 C.C.C. (3d) 566, the Supreme Court stated at para. 16: 16 Section 98(4) enables peace office acting on reasonable grounds to apply to the provincial court judge for an order prohibiting particular person from possessing firearm. Clearly, the peace officer is not required to act solely on the basis of evidence that would be admissible at trial ... At the hearing of the application pursuant to s. 98(6), the provincial court judge must be satisfied that there are reasonable grounds to believe that it is not desirable in the interests of the safety of the person or of others that the subject of the prohibition application should possess firearm. The provincial court judge thus confirms the existence of the reasonable grounds which led the peace officer to launch the application. In my opinion, it was not intended that the provincial court judge strictly apply the rules of evidence. [23] The Supreme Court of Canada in Zeolkowski clearly established that the burden of proof was on balance of probabilities which also applies with respect to s. 810.2 hearing wherein they stated at para. 17 It is also relevant to note that the burden which the applicant bears at the hearing is not that of proof beyond reasonable doubt, but simply proof on balance of probabilities. In R. v. McWhirter, Hart J.A., for the court, took note of this reduced standard in reaching the conclusion, at p. 186, that “... although these proceedings arise under the Criminal Code Parliament did not intend that they be conducted in the manner of criminal trial”. agree with this conclusion. [24] These decisions at all court levels up to and including the Supreme Court of Canada confirm that s. 810 hearings are not criminal trials. The usual rules of evidence applicable in criminal trials do not apply. Hearsay evidence is admissible. The question before the judge is to determine whether or not sufficient weight can be given to the hearsay evidence to establish the reasonable and probable grounds required for the individual to swear the information to justify the fear of harm to others by the respondent. Business records exception, s. 30 of the Canada Evidence Act [25] Section 30 of the Canada Evidence Act states: Business records to be admitted in evidence (1) Where oral evidence in respect of matter would be admissible in legal proceeding, 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 record made in the usual and ordinary course of business does not contain information in respect of 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. Copy of records (3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), copy of the record accompanied by two documents, one that is made by person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy, is admissible in evidence under this section in the same manner as if it were the original of the record if each document is (a) an affidavit of each of those persons sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. Where record kept in form requiring explanation (4) Where production of any record or of copy of any record described in subsection (1) or (2) would not convey to the court the information contained in the record by reason of its having been kept in form that requires explanation, transcript of the explanation of the record or copy prepared by person qualified to make the explanation is admissible in evidence under this section in the same manner as if it were the original of the record if it is accompanied by document that sets out the person’s qualifications to make the explanation, attests to the accuracy of the explanation, and is (a) an affidavit of that person sworn before commissioner or other person authorized to take affidavits; or (b) certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. Court may order other part of record to be produced (5) Where part only of record is produced under this section by any party, the court may examine any other part of the record and direct that, together with the part of the record previously so produced, the whole or any part of the other part thereof be produced by that party as the record produced by him. Court may examine record and hear evidence (6) For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record admitted in evidence under this section, the court may, on production of any record, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record. 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. Not necessary to prove signature and official character (8) Where evidence is offered by affidavit under 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. Examination on record with leave of court (9) Subject to section 4, any person who has or may reasonably be expected to have knowledge of the making or contents of any record produced or received in evidence under this section may, with leave of the court, be examined or cross‑examined thereon by any party to the legal proceeding. Evidence inadmissible under this section (10) Nothing in this section renders admissible in evidence in any legal proceeding (a) such part of any record as is proved to be (i) record made in the course of an investigation or inquiry, (ii) record made in the course of obtaining or giving legal advice or in contemplation of legal proceeding, (iii) record in respect of the production of which any privilege exists and is claimed, or (iv) record of or alluding to statement made by 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 matter disclosed in the record; (b) any record the production of which would be contrary to public policy; or (c) any transcript or recording of evidence taken in the course of another legal proceeding. Construction of this section (11) The provisions of this section shall be deemed to be in addition to and not in derogation of (a) any other provision of this or any other Act of Parliament respecting the admissibility in evidence of any record or the proof of any matter; or (b) any existing rule of law under which any record is admissible in evidence or any matter may be proved. Definitions (12) In this section, affaires “business” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government, by any department, branch, board, commission or agency of any government, by any court or other tribunal or by any other body or authority performing function of government; “copy” and “photographic film” copie et pellicule photographique “copy”, in relation to any record, includes print, whether enlarged or not, from photographic film of the record, and “photographic film” includes photographic plate, microphotographic film or photostatic negative; tribunal “court” means the court, judge, arbitrator or person before whom legal proceeding is held or taken; “legal proceeding” procédure judiciaire “legal proceeding” means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration; pièce “record” includes 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, and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4). [26] It has been well established law in Saskatchewan that CSC records similar to the ones submitted and disallowed in the matter under appeal are admissible under s. 30. [27] As stated by Rothery J. in Ross v. Riverband Institution, 2007 SKQB 232 (CanLII), [2007] S.J. No. 359 (QL), at para. 8: Attaching the correctional records as exhibits to the respondents’ affidavits does not offend Rule 319. Furthermore, it has been decided that correctional records are documentary evidence as defined by s. 30(1)of the Canada Evidence Act, R.S.C. 1985, c. C-5 and by the common law. This documentary evidence is an exception to the hearsay rule and admissible. See: R. v. Gregoire (1998), 1998 CanLII 17679 (MB CA), 130 C.C.C. (3d) 65 (Man. C.A.) And see: R. v. Nowdlak, 2005 NUCJ 17 (CanLII), [2005] Nu.J. No. 17 (Nun. C.J.) [28] With respect to the NPB’s written reasons the court determined that they could not be admitted as business records under s. 30 of the Canada Evidence Act unless they also met the requirements of s. 145 of the CCRA that required them to be signed to be admissible. [29] However, s. 30 of the Canada Evidence Act does not require business records to be signed and is not subject to compliance with s. 145. [30] The assessment for decision reports were prepared by the respondent’s institutional parole officer and submitted to the NPB as required under s. 129(2) of the CCRA. These reports are provided to the NPB to assist the Board in making its decision as to whether to retain the respondent until warrant expiry. [31] These reports are required to be made under the CCRA to the NPB. When they are making their decision the inmate is entitled to be present and make representation to the Board. The CSC provides the report based on legislative requirements. The NPB review is not legal proceeding as referred to in s. 30(10)(a)(ii) of the Canada Evidence Act or ss. (12). This is relevant available information which the Board must consider and review in making its decision. The Board does not swear witnesses or hear oral testimony, nor is CSC party to this proceeding. [32] The court accepts as law the decision of R. v. McLarty (No. 3) (1978), 1978 CanLII 2390 (ON CJ), 45 C.C.C. (2d) 184, [1978] O.J. No. 3736 (QL) (Ont. Co. Ct.), which states at para. 10 This leaves finally for consideration whether these documents were prepared “in contemplation of legal proceeding”. Once again derive assistance from the common law and there again, if my recollection is correct, the prohibition with respect to the production of records made in the contemplation of legal proceeding relates only to parties to the legal proceeding, so that one who prepared, in contemplation of legal proceedings report of some sort, cannot be compelled to produce that. Now while what we have here on one view might be considered to be documents prepared in contemplation of legal proceeding, they were not prepared by party to the proceedings. They were prepared by someone whose business it was to engage in the investigation of suspected criminal activities. So that once again it is my opinion that Mr. Ruby's argument is unsuccessful and in the result his argument must fail. [33] As stated CSC is not party to the detention reviews conducted by the NPB. The parole officer is under statutory duty to present all relevant information to the Board. This evidence is not prepared for the purposes of legal proceedings and is admissible under the business records exception. [34] With respect to the criminal profile report, the Crown called witness to testify that the criminal profile reports were prepared in the usual and ordinary course of CSC business. The records are maintained in electronic format and may be accessed by parole officers using computer. The reports are prepared, checked for quality control and then locked into the data base so they cannot be changed or amended. The CSC also maintains paper copy on the offender’s criminal profile report with the paper copy being signed and stored on the inmate’s file. [35] The evidence before the court was that individuals within the CSC rely on the electronic versions of the reports rather than retrieving the paper copies. The judge ruled that if there was signed paper copy of the report then the computer printout of the report was merely copy for the record, and therefore was inadmissible because it did not comply with s. 30(3) of the Canada Evidence Act, as it was not signed. [36] However, courts have determined that carbon copy is just as much record as is the paper copy to which ink has been applied. See R. v. Hall, [1998] B.C.J. No. 2515 (QL) (B.C.S.C.), para. 69, wherein it states: ... Several Courts of Appeal have ruled that carbon copies are admissible as originals, even if they are not the top white copy: R. v. Betterest Vinyl Manufacturing Ltd. (1989), 1989 CanLII 7251 (BC CA), 52 C.C.C. (3d) 441 (B.C. C.A.); R. v. Walsh (1980), 1980 CanLII 2885 (ON CA), 53 C.C.C. (2d) 568 (Ont. C.A.); R. v. Alward (1976), 1976 CanLII 1214 (NB CA), 32 C.C.C. (2d) 416 (N.B. C.A.) at 429. ... [37] R. v. Hall, supra, has also established that when it comes to computer records there is no distinction between electronic version of record stored in the computer and computer printout of the information. As stated by the court in para. 52: 52 For the purposes of this application, am persuaded that the computer records were mechanically created for the respective telephone companies' usual and ordinary business purposes. The information reproduced was recorded as reference source, kept as part of its internal audit system and so kept for that purpose at the relevant time. Insofar as computers are concerned, see no merit in the arguments based on the alleged distinctions between copies and records. In view of the evidence in the case at bar find that distinction is meaningless one. The law must be applied in accordance with the rapidly changing reality of today notwithstanding that it was drafted in the past. For this Court to hold in the context of this application that the printouts were not admissible would be to ignore the realities of the computer age, wherein technological change has rendered the former distinctions between originals and copies moot distraction in many areas. This was also upheld in other more recent decisions. [38] As well, s. 31.2 of the Canada Evidence Act specifically allows the admissibility of electronic documents such as the criminal profile report. [39] Section 31.2 states: 31.2 (1) The best evidence rule in respect of an electronic document is satisfied (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or (b) if an evidentiary presumption established under section 31.4 applies. (2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as record of the information recorded or stored in the printout. [40] As noted, CSC personnel rely on this information. It was part of the warrant expiry package provided to the officer who swore the information and on which he was allowed to consider. The court was required to review the information available to the officer to determine if there was sufficient information to justify the swearing of the information on reasonable and probable grounds. [41] It should also be noted that the Provincial Court of Saskatchewan decisions as recent as March 2013 have chosen to follow the authorities and rationale as set forth herein rather than the decisions in R. v. Toulejour and R. v. Fontaine. See the decision of Cardinal P.C.J. in R. v. Arthur Carriere, 2013 SKPC 36 (CanLII), [2013] S.J. No. 142 (QL). [42] This court does allow the appeal for the reasons set forth herein and does direct that the matter be returned for a new hearing of the original application.
The Crown appealed a decision of the Provincial Court dismissing an application for a recognizance pursuant to s. 810.2 of the Criminal Code. The judge held that the usual rules of evidence pertaining to criminal trials apply to a s. 810.2 hearing and that records kept by the Correctional Services of Canada (CSC) were inadmissible as business records under s. 30 of the Canada Evidence Act. The respondent had been convicted in 2009 of robbery with violence, assault causing bodily harm, assault and three counts of violating bail. He was sentenced to three years' imprisonment. In May 2010, the CSC referred the respondent's case to the National Parole Board (NPB) with a recommendation that he be detained until warrant expiry, in accordance with s. 129(2) of the Corrections and Conditional Release Act (CCRA). The recommendation was based upon the character of the respondent's offences and where there are reasonable grounds to believe that the offender is likely to commit another offence causing death or serious harm if released on parole. The NPB ordered that the respondent be detained in custody until the expiry of the sentence. Reviewed annually under the CCRA, the CSC prepared another assessment in 2011 and the respondent was not released from custody until March 2012. At that point, a 'warrant expiry package' was prepared by a parole officer, comprised of CSC records relating to the respondent, including a criminal profile report, the assessment for decision reports and copies of the NPB's reasons for ordering detention. These records were sent to the RCMP in Saskatchewan. The officer concerned then swore the information under s. 810.2, stating that he believed that there were reasonable grounds to believe that the respondent would commit a serious personal offence as defined by s. 752 of the Code. The application for a hearing was commenced in August 2012. The parole officer and the RCMP officer were called to testify and the Crown applied to have the documents in the package admitted into evidence, and the respondent opposed the application. The judge refused to allow the admission of the report, the assessment and the NPB reasons for ordering detention based upon R. v. Fontaine and R. v. Toulejour. Based on the business rules exception, the judge held that the criminal report profile was inadmissible because it was a copy and not accompanied by supporting affidavits as required by s. 30(3) of the CEA. HELD: The Court held that the application was allowed. The Supreme Court had confirmed that s. 810 hearings are not criminal trials and that the rules of evidence in criminal trials do not apply. Hearsay evidence is admissible and the judge is to determine whether or not sufficient weight can be given to the hearsay evidence to establish reasonable and probable grounds required for the individual to swear the information to justify the fear of harm to others by the respondent. The Court held that all of the CSC records submitted as part of the package were admissible under the CEA. The Court directed that the matter be returned for a new hearing of the original application.