R. v. Saddleback, 2012 ABQB 670

Court of Queen ’ s Bench of Alberta Citation: R. v. Saddleback, 2012 ABQB 670 Date: 20121031 Docket: 120407382S1 Registry: Edmonton Between: Her Majesty the Queen - and - Chase Bradley Saddleback Appellant (Accused) Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Reasons for Judgment of the Honourable Mr.

Justice Donald Lee _______________________________________________________ Background [ 1 ] On March 9, 2012, Chase Bradley Saddleback was convicted of being the owner of a motor vehicle that was involved in a collision and failing to report that collision. The offence date was August 17, 2010. The sole issue on appeal is whether the Traffic Commissioner erred in finding that testimony regarding the absence of information on a computer system is non-hearsay.

[ 2 ] On August 15, 2010, Mr. Saddleback's vehicle was observed by an independent civilian to hit a parked vehicle while attempting to park alongside it in South Edmonton Common. Mr. Saddleback's vehicle proceeded to leave the area without leaving any information for the other vehicle owner. A report was made by the civilian to Cst. Snider on August 16, 2010. [ 3 ] Cst. Snider determined Chase Saddleback to be the registered owner of the vehicle and attempted to contact Mr. Saddleback. Cst. Snider attempted to contact Mr.

Saddleback at the phone number provided by the Motor Vehicles division on three occasions as per his standard practice. The phone number at Motor Vehicles is provided by Mr. Saddleback when he registers his motor vehicle. Cst. Snider left messages at the same number requesting that Mr. Saddleback contact Cst. Snider. Upon Mr. Saddleback's lack of response to the messages, Cst. Snider forwarded the file to the 'hit and run' section. [ 4 ] Cst. Lorenz is assigned to the 'hit and run' unit of the Edmonton Police Service in the traffic section.

Files are forwarded to him from other police members after they do an initial investigation so that Cst. Lorenz can investigate further. The matter involving Mr. Saddleback's vehicle was forwarded to Cst. Lorenz due to the difficulties in locating Mr. Saddleback. Cst. Lorenz made several attempts to contact Mr. Saddleback: • On October 4, 2010 at 8:36 a.m., Cst. Lorenz phoned Mr. Saddleback and the phone rang approximately 20 times without going to answering machine; • There were two other attempts to contact Mr. Saddleback by phone that were negative; • On October 4, 2010, Cst.

Lorenz also sent a letter to the address to which the vehicle is registered at the Motor Vehicles branch requesting information about the collision. The letter did not come back returned and there was no response to the letter. The letter had Cst. Lorenz's contact information (cell phone, regular phone, and fax) listed at the bottom (Exhibit 4). • November 9, 2010, Cst. Lorenz mailed two tickets, a summons to appear on January 11, 2011and a letter explaining the tickets. The letter was not returned or sent back. If it had been sent back, it would have been directed to Cst. Lorenz. [ 5 ] Cst.

Lorenz has never been contacted by Mr. Saddleback in relation to the incident on August 15, 2010. [ 6 ] The practice of the Edmonton Police Service is to forward information regarding other police officer's investigations to the investigating officer. Therefore if information had been received at any Edmonton police station regarding Mr. Saddleback or his vehicle, the information would have been forwarded to Cst. Lorenz. Furthermore there was nothing "on the system" indicating that Mr. Saddleback had been in contact with an Edmonton police officer. [ 7 ] If Mr.

Saddleback had made an accident report, it would have been forwarded to Cst. Lorenz or put onto the Edmonton Police Service reporting system (EPROS), but there was nothing in the reporting system to indicate that Mr. Saddleback had made contact with the Edmonton police regarding the incident. [ 8 ] The court record, including the ticket and endorsements, indicates the following: a. Mr. Saddleback was compelled to appear (or have an agent appear on his behalf) on January 11, 2011 at Courtroom 001 in the Edmonton Provincial Court according to the tickets that were mailed to Mr. Saddleback's registered address.

b. An agent appeared on Mr. Saddleback's behalf on January 11, 2011 and set the matter for trial on June 6, 2011. This leads to thelogical inference that Mr. Saddleback received the letters sent by Cst. Lorenz. c. On June 6, 2011, an agent appeared on Mr. Saddleback's behalf but the trial was adjourned until October 28, 2011. d. On October 28, 2011, an agent appeared on Mr. Saddleback's behalf and ran a trial in his absence. [9] The Appellant, was convicted on March 9, 2012 of being the owner of a motor vehicle under s. 160(1) of the Traffic SafelyAct, whose driver had contravened s. 7 1(

l) of the Traffic Safety Act by failing to provide a report of a motor vehicle accident. At that timehe was sentenced to pay the designated fine of $287.00. Mr. Saddleback appeals his conviction. [10] At trial, the only evidence with regard to any failure to provide a report pursuant to the requirements of s. 71(

l) of the TrafficSafety Act was provided by Cst. David Lorenz. He testified that had any report been made to the police, it would have been forwarded onto him. He further testified that a report would have been in the EPROS reporting system had one been made, but that it was not. [11] This evidence was objected to at trial, on the basis that it constitutes inadmissible hearsay. The Commissioner ultimatelyruled that it does not constitute hearsay, and further, that if it does constitute hearsay, that it would be admissible under the principledexception pursuant to R. v.

Starr (2000) 2000 SCC 40 , 147 C.C.C. (3d) 449 (S.C.C.). Other than the testimony of Cst. Lorenz,there was no other evidence to show a failure to provide a report under s. 71(1). [12] The Commissioner’s detailed Reasons read as follows: I find that the Crown has proved beyond a reasonable doubt on the evidence presented to me at trial the following. That on August 15,2010 in the City of Edmonton, Alberta two motor vehicles were involved in an accident at the South Common Mall public parking lot. Aparked Toyota Camry was struck by a large Dodge truck which was attempting to park in a tight spot beside it.

There was no evidencepresented of speeding. The road was good and there was no adverse weather conditions. The parking lot was busy. As a result of thiscollision damage was caused to the Toyota in the form of a dent on the rear of the Toyota vehicle approximately 12 inches high by 14 to16 inches wide in size. The driver of the Dodge fled the scene without performing the duties required by law of a driver in such asituation. I find that the Defendant Chase Bradley Saddleback was the registered owner on August 15, 2010 of the Dodge truck motor vehicle thatwas involved in the above accident.

I accept that the witness to the accident correctly identified the letters and numbers on the licenceplate as MAB [...]. He could not state he observed the province of issue. He described the vehicle as a large Dodge truck. The certificate,Exhibit number 3, from Alberta Motor Vehicles indicated not only the vehicle owned by the Defendant on August 15, 2010 as bearinglicence plate number MAB [...] but also described it as a 2003 Dodge Ram truck. I find the witness to the accident gave credibleevidence. He was in a close position with no obstructions to make his observations.

The plate number was recorded by him within aminute of the observation. I find that with the recording of the plate number and the description of the vehicle by a credible witness andwith the description of the type of vehicle in the certificate in Exhibit 3, that beyond any reasonable doubt that the plate he observed wasthe Alberta plate belonging to the vehicle that was the property of the defendant as described in Exhibit number 3.

I do wish to indicatethat if there had not been a description of the vehicle by the witness his recording of the plate number without the noting of the provinceof issue would not have been sufficient to prove to me beyond a reasonable doubt that the defendant was the owner of the vehicle heobserved. I have considered the following sections of the Traffic Safety Act: 5(3) In a prosecution for an offence with respect to a failure to comply with

section 70 or 71, a certificate purporting to be signed by theRegistrar that any accident report required under this Act has or has not been made shall be admitted in evidence as proof, in the absenceof evidence to the contrary, of all the facts stated in the certificate without proof of the signature or official character of the personsigning the certificate, if any. 69(2) The driver of a vehicle that

(

a) is involved in an accident with an unattended vehicle shall stop at the scene of the accident and shall forthwith or as soon after the accident as is practicable (

I) locate and notify the owner or person in charge of the unattended vehicle of the name and address of the driver, the number of the driver's operator's licence and the licence plate number of the vehicle that was involved in the accident with the unattended vehicle, or (ii) leave in a conspicuous place in or on the unattended vehicle a written notice giving the name and address of the driver, the number of the driver's operator's licence and the licence plate number of the vehicle that was involved in the accident with the unattended vehicle, 70 A peace officer shall, in the form and the manner prescribed by regulation, provide to the Registrar reports respecting accidents involving vehicles. 71(1) A driver of a vehicle involved in an accident shall, in the form and manner prescribed by regulation, provide a report of the accident to (

a) a peace officer having jurisdiction where the accident occurred, or (

b) an employee of a police service having jurisdiction where the accident occurred who is authorized to receive those reports. 72 In a prosecution for failure to provide information as required under

section 69 or 126 or to make a report as required by

section 70 or 71 or to provide information under the regulations with respect to accidents, the place of an offence is the place where the accident occurred. 115

(1) For the purposes of this section, a driver of a vehicle is driving carelessly if that driver drives the vehicle (

a) without due care and attention, or (

b) without reasonable consideration for persons using the highway. 115

(2) A person shall not do any of the following: (

b) drive a vehicle on a highway in a manner that constitutes driving carelessly; 160(1) If a vehicle is involved in an offence referred to in

section 157 or a bylaw, the owner of that vehicle is guilty of an offence. From the above review of s. 5(3) I do not find any legal requirement that the Crown must prove the absence of reporting an accident only by way of the certificate mentioned in this section. The Crown can chose to provide evidence on this issue in another manner. The requirements of the Act are that according to s. 70 peace officers provide reports of accidents to the Registrar. This of necessity involves the police service in question checking whether or not a report has in fact been made.

Section 71(1) requires a person involved to make the report to a peace officer having jurisdiction where the accident occurred or to an employee of a police service having jurisdiction where the accident occurred who is authorized to receive those reports. This means that the matter cannot simply be reported to any police officer or police service but only to the specific classes of persons mentioned in the jurisdiction where the accident occurred.

The defence, in effect, is saying that if the police report to the Registrar that they have no record of a report being filed that the certification of the Registrar that no report has been filed is valid but if the police provide the court with the same information that it is inadmissible

hearsay evidence. In other words the second hand evidence, the certificate is admissible but the first hand evidence is not. I cannot acceptthis for a number of reasons. First, in my view the evidence in this case of the officer is that he was the main investigator and that thedefendant never made a report to him. The original investigator never received a report from the defendant. None of this is hearsay; it istheir own observations.

When Constable David Lorenz, the hit and run investigator indicates that the procedure for the his police serviceis that if there is a report made to someone else he is to be advised this also is not hearsay evidence. He is stating what rules govern inthis type of situation. He was never so advised of someone else receiving a report. This is not negative hearsay it is not hearsay at all.When he checked the record system of the Edmonton Police service and the file and could not find any record of the required accidentreport being made by the defendant this is also not hearsay.

In the Memoirs of Sherlock Holmes by Sir Arthur Conan Doyle the firststory is Silver Blaze. In that story the following exchange occurs between Holmes and another man: "Is there any point to which you would wish to draw my attention?" "To the curious incident of the dog in the night-time." "The dog did nothing in the night-time." "That was the curious incident," remarked Sherlock Holmes. In the case before me what I have is that when all the various sources were checked there was no indication any accident report had everbeen filed by the defendant. I do not accept that this is hearsay.

However if I am wrong and what has been presented is hearsay that does not end the matter. There would still be the issue as to whetherit would be admissible hearsay. The Supreme Court of Canada in recent years has changed the common law rule regarding hearsaythrough a decade long series of cases such as R. v. Starr (2000) 2000 SCC 40 , 147 C.C.C. (3d) 449 (S.C.C.). If the evidence isadmissible hearsay under the traditional rules that ends the matter. But if not admissible under traditional rules that does not mean thecourt cannot look further.

If the court concludes that the statement is necessary in that non hearsay evince to the same effect is notavailable and the hearsay comes into existence in a manner that circumstantially guarantees its reliability then it is admissible. Here Ifind that the evidence of Constable Lorenz as to his check with respect to his file and the information system of the Edmonton PoliceService is the only practicable way to determine if his police service, which has the only jurisdiction to receive the report, ever receivedsuch a report. I find his evidence to be reliable and trustworthy.

I find beyond any reasonable doubt that no accident report was ever filed by the defendant. The seminal case on careless driving in Canada is R. v. Beauchamp (1953), (ON CA), 106 C.C.C. 6 (Ont. C.A.) Thestandard in this case for careless driving is divided into two parts. The first

part is did the: accused in light of existing circumstances of which he was aware or which a driver exercising ordinary care should have been aware,failed to use that care and attention or to give other persons using the highway the consideration that a driver of ordinary care would haveused or given in the circumstances.... the legal standard of care remains the same in the sense that it is what the average careful manwould have done in like circumstances, the factual standard is a constantly shifting one, depending on road, visibility, weatherconditions, traffic conditions that exist or may reasonable be expected, and any other conditions that ordinary prudent driver would takeinto consideration.

The second part of the test is that the conduct must be of such nature that it can be considered a breach of duty to the public anddeserving of punishment. There has been some confusion with respect to the meaning of the words deserving of punishment and somecourts have said that it is not proper to apply this secondary test to careless driving - see R. v. Jacobsen (1965) (BCCA), 1 C.C.C. 99, but I take it at the least that the conduct to be careless driving must be something more than that required for civilnegligence. I accept that civil negligence alone is not sufficient for careless driving. In R. v.

Hundal (SCC), [1993] 1S.C.R. 867 (S.C.C.) it was indicated (paragraph 24): Negligent driving can be thought of as a continuum that progresses or regresses from momentary lapse of attention giving rise to civil

responsibility through careless driving under a provincial Highway Traffic Act to dangerous driving under the Criminal Code. As indicated above, the standard of care is not perfection. In general a momentary lapse is not sufficient nor a simple error of judgementsee R. v. Major (2004), 2004 ABPC 178 , 16 M.V.R. (5th) 226, R. v. Namink 1979 O.J.No 317 (Ont. Co. Ct.), R. v.Schoenberg, (1998) 1998 ABPC 128 , 239 A.R. 362 (Alta. Prov. Ct.). Law with respect to unexplained accidents are in my view not applicable to the case before me.

Here we have the evidence of Mr.Madhan Selvaraj, a professional engineer, who witnessed the accident and explained to the court very clearly how it happened. Heindicated that it occurred when the large Dodge truck tried to park beside the Toyota car in a spot that he described it as " a pretty tightsqueeze in". When the truck turned in to park he saw the truck hit the parked Toyota. In R. v. Ereddia 2006 ONCJ 303 , 37 M.V.R. (5th) 179 the facts before D.A.

Fairgrave J. of the Ontario Court of Justice werethat the defendant had tried to squeeze his truck between a car parked on the left side of the road and a garbage truck parked on the rightside of the road. The defendant was not successful and damaged the garbage truck. The court found the miscalculation as to sufficientspace to squeeze by was a simple error of judgement that was not in law a departure from the standard of an ordinarily prudent driver.The decision of the court below was reversed and the defendant was acquitted. I find this case in many ways similar to the facts beforeme.

In both cases there was no evidence of excessive speed, the drivers tried to squeeze their vehicle into a tight position and havingfailed struck a parked motor vehicle. I find that all of the essential elements of the offence for which the defendant was charged as the owner of a motor vehicle pursuant tosection 160(1) of the Traffic Safety Act under s. 71(1) of that Act (failure to report a collision) ( ticket A59361094Z) have been proved tome beyond any reasonable doubt and I find him guilty of that charge.

I find that all of the essential elements of the offence for which the defendant was charged as the owner of a motor vehicle pursuant tosection 160(1) of the Traffic Safety Act under s.115(2)(b) (careless driving)(ticket A59361105Z) have not ben proved to me beyond areasonable doubt in that the evidence before me does not meet the factual standard for careless driving and falls rather into the categoryof simple error of judgement and I find the defendant not guilty of that charge. Points In Issue [13] Did the Justice of the Peace sitting as a Traffic Commissioner, incorrectly determined that the testimony of Cst.

Lorenz withregards to a failure to report was not hearsay, and in so doing did he make a reversible error of law. [14] In considering the issue of hearsay exceptions under the law, did the Justice of the Peace err in law by misapplying the test,with regard to the issue of necessity. [15] Absent inadmissible hearsay, is there is insufficient evidence on the subject of whether a report was made to support aconviction under s.71(1) of the Traffic Safety Act and as such it is argued that the conviction must be overturned. [16] As the case at bar raises only issues of law, the standard of review is one of correctness.

Is the impugned evidence of Cst. Lorenz hearsay? Argument [17] Cst. Lorenz testified as to non-reports via three different sources. First, he testified that no report was made to him personally.It is agreed that this is not hearsay as this is Cst. Lorenz' direct evidence. However it is also of limited value, as Cst. Lorenz is not the

only officer eligible to take a report of a motor vehicle accident. On its own, this is insufficient to sustain a conviction. [ 18 ] Second Cst. Lorenz testified that had another officer received a report this would have been forwarded along to him, or that it would have been entered into EPROS. In examining whether this is hearsay, we must consider the essential elements of hearsay whether the information in question originates from a source not present in the courtroom, and whether the information is being tendered for proof of the truth of its contents.

The hearsay rule has been described as: Written or oral statements, or communicative conduct made by persons otherwise than in testimony at the proceeding in which it is offered, are inadmissible, if such statements or conduct are tendered either as proof of their truth or as proof of assertions implicit therein. [ 19 ] In this case, the source of the information is the other officers not present in the court. It is submitted Cst.

Lorenz' testimony to this effect is of no value without the understanding that the other offices are effectively communicating information by means of the reporting system and the EPROS system. His evidence, at its heart, deals with the experiences of other officers in terms of whether or not they had received a report. This can be illustrated by considering the scenario where each officer positively asserts that they had not received a report to Cst. Lorenz, and where Cst. Lorenz then was asked to testify as to what he had been told. It is submitted this would clearly constitute inadmissible hearsay.

The fact that the communicative conduct in this case is ‘ negative ’ , in the sense that it involves silence rather than active speech, does not change the fact that it is information being conveyed from one officer to another. It is argued that had an officer informed Cst. Lorenz that he had received a report, Cst. Lorenz would not be able to enter that fact into evidence for proof of the truth of its contents (ie for proof that a report have been made), as that would constitute hearsay.

The Appellant argues that it is illogical to allow evidence of the experiences of other officers to be admitted into evidence where that evidence is communicated through inaction, but to absolutely forbid it where that evidence is communicated by a direct verbal or other statement. [ 20 ] The Appellant argues that with regards to the computerized EPROS report, one should consider the fact that the distinction between a lack of result and a positive result is one that is relatively arbitrary, and may be a choice of design.

For example, if we consider a system for detailing whether adverse weather conditions may have been a factor, one could design the system in a number of ways, including:

a) A system requiring the writer to positively state the weather conditions (for example, "clear weather, no slippery conditions or visibility problems").

b) A system that requires the writer to fill out a supplemental form to indicate any adverse weather conditions, with a 'clear weather' report being accomplished simply by not completing the additional form . [ 21 ] In the first case, it is submitted that it would be inadmissible hearsay to call an officer, other than one with direct knowledge of the road conditions of the time, to testify as to the weather on the day in question based on the contents of the report. It should equally be considered hearsay in the second case, even though the evidence is the lack of an entry in a reporting system.

In the case at bar, if we envisioned a system where each officer in the R.C.M.P. was required to personally enter a notation that they had not received a report, their notations would be hearsay if they were tendered to the court via Cst. Lorenz.

It seems inconsistent that the same should be admissible simply because no such notations exist despite the fact that the former would be incontrovertibly more trustworthy. [ 22 ] The issue of an absence of an entry in a recording system is discussed in Sopinka Lederman & Bryant: The Law of Evidence in Canada 3 rd Edition as follows: Section 30(2) of the Canada Evidence Act expressly provides for a negative inference which the court can draw from the absence of relevant information in the record: the court may conclude that the matter which was not recorded did not occur or exist. In R. v.

Garofoli , the Ontario Court of Appeal suggested that resort to this provision is the appropriate way of leading evidence of this fact, rather than merely calling a witness to testify that he could not find any relevant entry in the record. In that case, the Court stated that such a witness who testified that he personally examined customs records to see whether any cars had been imported by the accused, would be

stating non-admissible hearsay.

The Court said that the proper method of adducing such evidence was to utilize s. 30(2) of the Canada Evidence Act and produce the custom records, thus giving rise to the inference of the non-occurrence of the importation from the fact that there was no entry of it in the records. [ 23 ] While the Canada Evidence Act does not apply to a matter under Provincial jurisdiction, this indicates the fact that such evidence is hearsay, and if it is to be admitted, it must be under a hearsay exception. [ 24 ] Further evidence that such testimony should be considered hearsay can be found in the provisions of s. 5(3) of the Traffic Safety Act , which states: In a prosecution for an offence with respect to a failure to comply with

section 70 or 71, a certificate purporting to be signed by the Registrar that any accident report required under this Act has or has not been made shall be admitted in evidence as proof, in the absence of evidence to the contrary, of all the facts stated in the certificate without proof of the signature or official character of the person signing the certificate, if any. [ 25 ] The existence of this provision suggests that the Legislature was aware of the evidentiary hurdles that exist in prosecuting the relevant statutes, and sought to provide a means to overcome them.

In particular, the language used in terms of "shall be admitted in evidence as proof ... of all the facts stated in the certificate" is essentially language identifying the issue as a hearsay issue, in that it effectively states that under these circumstances the evidence can be admitted for the proof of the truth of its contents. The Justice of the Peace acting as traffic commissioner, had difficulty with the notion that a certificate under 5(3) would be admissible, whereas the evidence of the Cst. is not.

However the certificate is only admissible by virtue of the statute but for the statute, it would also be inadmissible hearsay. [ 26 ] Accordingly it is submitted by the Appellant that Cst. Lorenz' evidence with regards to checking EPROS, and with regards to not having been provided with a report, constitutes hearsay and is therefore presumptively inadmissible. Does the hearsay in question fall under the principled exception in R. v. Starr ? Argument [ 27 ] The cases of R. v. Starr , [2002] 2 S.C.R. 144 (S.C.C.) and R. v.

Khelawon , 2006 SCC 57 (S.C.C.) set out what has been called the "principled exception" to hearsay, in that it is a flexible exception based on two prongs-necessity and reliability. Where both aspects are satisfied, hearsay may be admitted notwithstanding the fact that it does not fall under any statutory or categorical exception.

The burden of proving necessity and reliability is on the party tendering the evidence. [ 28 ] Furthermore the fact that the Crown had other avenues with which to prove evidence does not change the fact that in the circumstances of this case, there was no Certificate of Registrar, nor were there any business records available. In this case, the Crown argues that the evidence of Cst. Lorenz was necessary to prove that there were no entries in EPROS and no reports had been forwarded to Cst. Lorenz. [ 29 ] This was considered by the British Columbia Court of Appeal in R v Port Chevrolet Ltd.

(2009) BCCA 357. The Crown attempted to have copies of cheques entered pursuant to s.29 of the CEA, but was unsuccessful. The Crown was subsequently successful in having the cheques admitted pursuant to the principled exception to hearsay.

Beyond the Canada Evidence Act , the Crown could have introduced the cheques through the testimony of a convicted murderer. [ 30 ] In finding that the cheques were admissible pursuant to the principled exception to hearsay (and that the necessity criterion was satisfied) the court held that the necessity element must focus on the time that the Crown is seeking to introduce the evidence and not the earlier possibilities. In that case, the Crown had no option other than the principled exception to the hearsay rule and the cheques were properly admitted.

[31] Similar to Port Chevrolet, it is submitted that the fact that other methods of proof were possible is not the question: thequestion is whether other methods of proof were available at the time the evidence was being tendered. The answer is no according tothe Crown therefore the requirement of necessity is established. Threshold Reliability [32] According to the Supreme Court in R v Starr, threshold reliability is concerned with the circumstances surrounding thestatement and not with the actual truth of the statement.

For example, the absence of a motive to lie is a relevant factor in admittingevidence under the principled approach. The declarant's general reputation for truthfulness and prior statements are not relevant at thethreshold stage in the inquiry, but may be relevant in the ultimate reliability of the evidence. [33] Cst. Lorenz's testimony regarding the absence of evidence of a collision report meets the test for threshold reliability. Therewas no suggestion of a motive to lie, nor were there any other circumstances that would serve to diminish the reliability of the evidence.The Commissioner found that Cst.

Lorenz's evidence was "reliable and trustworthy" in considering this aspect of the test. [34] It is submitted by the Crown that the Commissioner correctly admitted Cst. Lorenz's evidence pursuant to the principledexception to hearsay, and Appellate intervention on this ground is not warranted. Does the hearsay in question fall under the exception in R v. Starr - Conclusion [35] In this case, I conclude that the impugned evidence fails on both the reliability and necessity grounds.

With regards tonecessity, there is no necessity here, as the evidence can be admitted instead via a certificate as provided by s. 5(3) of the Traffic SafetyAct. Indeed, a similar certificate was tendered by the Crown in this case to prove ownership of the motor vehicle in question, pursuant tos. 5(1) of the Traffic Safety Act. R. v.

O'Connor, (2002) (ON CA), 170 C.C.C. (3d) 365 noted, when addressing theissue of necessity where a witness was an American citizen and thus not compellable to testify: It is not sufficient for the Crown to simply show that a witness is not compellable because he or she is out of the jurisdiction, to satisfythe necessity requirement. Efforts should be made to pursue other options (teleconferencing or taking commission evidence are two)before one reaches the conclusion that admitting evidence by way of hearsay statement is necessary. Necessity cannot be equated withthe unavailability of a witness.

Rather, it must be shown that hearsay is the only available means of putting the evidence before the court. [36] It is also noted in R. v. Rockey, (SCC), [1996] 3 S.C.R. 829, “There is no presumption of necessity; it mustalways be considered on the circumstances of a particular case". Necessity has been made out in cases where the original source of theevidence is deceased, or otherwise unable to testify, but O 'Connor shows that necessity is not made out where it is a matter ofconvenience. Section 5(3) of the Traffic Safety Act provides for a simple method that this evidence can be brought before the court.

Afailure, on the part of the Crown, to exercise simple options to bring the evidence before the court in a fashion which is admissible bystatute, cannot constitute necessity. Allowing a party to simply not subpoena the original declarant, and then claim necessity has arisenby the fact that the declarant is not present before the court, is not to be allowed. Necessity must mean more than a simple failure tobring the appropriate evidence before the court. [37] Additionally no evidence was tendered as to the reliability of this impugned hearsay evidence. The Commissioner found thatthe evidence of Cst.

Lorenz was "reliable and trustworthy", but the concern with regard to hearsay is not whether the person testifyingbefore the court is reliable and trustworthy, but whether there arc circumstantial guarantees that reduce the hearsay dangers, such as thelack of an opportunity for cross-examination and the lack of ability of the trier of fact to gauge the credibility of the source of theinformation.

In this case the only thing that can give rise to some assurance of reliability is the fact that the individuals involved arepolice officers, but police officers cannot be presumed to be credible, reliable. or honest in all circumstances, but must be individuallyjudged. In this case there is the potential for an omission due to forgetfulness, misfiling, computer errors, and countless other factors.Cst. Lorenz was not qualified as an expert on the EPROS database, so we cannot tell if the database itself is reliable let alone theinformation communicated by way of the database.

As previously noted, the burden of proving reliability is on the party tendering theevidence, and I conclude that this burden has not been met.

[38] For these reasons I conclude that the hearsay evidence in question cannot be admitted under the principled exception. Are the results of negative computer inquiries hearsay? Is the evidence regarding the silence of other officers hearsay?

Analysis [39] In R v Garofoli (1988), (ON CA), 64 C.R. (3d) 193, 41 C.C.C. (3d) 97 the Ontario Court of Appealdefinitively stated that the results of negative inquiries are not hearsay as referenced below: 1 On 1st April 1986 the appellants Garofoli and Scibetta, along with their co-accused, Criminisi, Vanderkooy and Allen, werearraigned before a District Court Judge, sitting with a jury, on an indictment charging them with conspiring between 1st October 1983and 31st March 1984 to import a narcotic (cocaine) into Canada.

All the appellants pleaded not guilty to the charge; a jury was thenselected and excused until a later date. 2 On 7th April 1986, at the conclusion of a voir dire to determine the admissibility of private communications intercepted pursuantto judicial authorizations, the judge ruled that the communications were lawfully intercepted and were admissible. On 8th April 1986 theappellant Garofoli did not appear.

On 9th April 1986 the judge found that the appellant Garofoli had absconded, and continued the trialin his absence. 3 On 14th April 1986, pursuant to previous discussions between Crown counsel and defence counsel, Criminisi pleaded guilty onanother indictment to a count of conspiracy to import a narcotic (cocaine), and Allen and Vanderkooy pleaded guilty to a charge ofconspiracy to traffic in a narcotic (cocaine). The first indictment was then stayed as to Criminisi, Allen and Vanderkooy. On 24th April1986 the jury found the appellants Garofoli and Scibetta guilty.

Following their convictions, Garofoli was sentenced to 15 years'imprisonment and Scibetta was sentenced to nine years' imprisonment. Criminisi was sentenced to 12 years' imprisonment. Vanderkooywas sentenced to eight years' imprisonment and Allen was sentenced to six years' imprisonment. 4 Garofoli and Scibetta appeal against their convictions and also against the sentences imposed on them. Criminisi, Allen andVanderkooy appeal against their sentences. 10 The following are the principal grounds of appeal (as I have paraphrased them) urged on behalf of the appellants: 11 1.

The judge erred in refusing to open the sealed packets con taining the affidavits in support of the granting of the fourauthorizations to intercept private communications. 12 2. The judge erred in his charge by expressing his opinion as to the guilt of Garofoli and in failing to place the theory of thedefence before the jury. 13 3. The judge erred in expressing his opinion with respect to Scibetta's guilt, and thereby usurped the function of the jury. 14 4. The judge erred in finding that the appellant Garofoli had absconded during the trial. 15 5. In finding that Garofoli had absconded, the judge erred: 16 (

a) in relying upon hearsay evidence;

17 (

b) in placing the onus on the appellant Garofoli; and 18 (

c) in applying the wrong standard of proof. 19 6.

The judge erred in failing to have the evidence on which he found that Garofoli had absconded repeated before the jury. ... 124 It is convenient and appropriate to consider together all the grounds of appeal relating to Garofoli's disappearance during the trial. 125 On Monday, 7th April 1986, the trial judge ruled that the private communications were intercepted pursuant to authorizations which on their face were lawfully made, and hence they were admissible. 126 The following morning (8th April 1986), when the court opened at 10:15 a.m., the appellant Garofoli was not present.

The court adjourned briefly to enable his counsel to make inquiries. The jury was not present at this time, and remained out of court during the entire proceedings relating to the appellant's absence. On the court resuming, counsel for Garofoli informed the court that the appellant's wife had given him a note which she had received upon returning home around 8:00 p.m. the previous evening. The note indicated that Garofoli had been "picked up by two police officers". The note apparently referred to the Hamilton Joint Forces Unit.

Counsel said he had checked with one police unit that morning and with the R.C.M.P., Mrs. Garofoli had checked with various police stations in Hamilton and no one had any knowledge of the whereabouts of Garofoli. The judge, pursuant to s. 526(1) of the Criminal Code , issued a bench warrant for Garofoli's apprehension. Defence counsel indicated to the court that he would continue to represent Garofoli for that day, but, unless authorized by Legal Aid to continue to act notwithstanding Garofoli's absence, he would be applying to the court for leave to withdraw as counsel.

The judge suggested that defence counsel might advise Legal Aid that the court would be reluctant to release defence counsel even if Garofoli remained away. 127 The following day (9th April 1986) the judge commenced a hearing with respect to the reasons for the absence of Garofoli, who was still missing. 128 Constable Wide of the Hamilton-Wentworth police department testified that the previous evening he had commenced an investigation with respect to the disappearance of Garofoli. He testified that he went to the appellant's residence and spoke to the appellant's wife.

He checked the house and nothing appeared to have been disturbed. The watch and ring that the appellant usually wore were on the kitchen counter. However, a necklace and bracelet that the appellant usually wore were not to be found. He checked with the neighbours and they had not observed anything unusual. The family car was parked in the driveway. He testified on cross-examination that the reports from the hospitals were negative with respect to an accident befalling Garofoli.

He also stated that he checked the roster at the central police station in Hamilton to ascertain if Garofoli was in custody and found that he was not. He also stated that he had given the appellant's photograph to the airports and to the R.C.M.P., but had not received reports from them . 129 Sergeant Pearson, a member of the Hamilton-Wentworth Regional Police Department attached to the Joint Forces Unit, testified that he had received a telephone call the previous morning from counsel for Garofoli and had informed him that the Joint Forces Unit had no knowledge of the whereabouts of Garofoli.

He testified that he had spoken to all the officers of the unit and that they had no information as to Mr. Garofoli's whereabouts. He said that if another police force were concerned about the finding of an unidentified body the Hamilton Police Department would be notified within a period of 48 hours, and he was informed that no such notification had been received. 130 Constable Campbell of the R.C.M.P. testified that he had personally checked with the regional police for occurrences relating to sudden death. In addition, he checked area hospitals for admissions.

He also caused inquiries to be made of local hotels to ascertain if any person corresponding to the description of Garofoli had registered. He said that he caused inquiries to be conducted at Toronto International Airport to determine if Garofoli had left or attempted to leave the country, and those checks were continuing on a daily basis. He testified that he caused the bench warrant to be broadcast nationally and that he had caused inquiries to be made with respect to the finding of any unidentified body matching Garofoli's description.

His information was that up to that time there had been no report of such an occurrence. He said Garofoli was not in the custody of the R.C.M.P. and he had contacted the local police and Garofoli was not in their custody. He said that as many as six members of the R.C.M.P. during the preceding 24 hours had been making inquiries as to the

whereabouts of Garofoli, with negative results. In cross-examination he indicated that, if there was a legitimate explanation for thedisappearance of Garofoli, it should have "surfaced" by that time. ... 141 Counsel for Garofoli contended before us that the evidence relied on by the trial judge in finding that the appellant hadabsconded was hearsay, and there was accordingly no evidentiary basis for his finding.

I am unable to accept this submission. 142 Evidence of negative results of inquiries such as were conducted in this case is regarded as non-hearsay and, in any event, isregularly admitted: see McCormick on Evidence, 3rd ed. (1984), at pp. 743-44.

Even if some hearsay evidence was admitted, there wasample admissible evidence to warrant the trial judge in finding that the appellant had absconded. ... 181 For the reasons hereinbefore set out, I would dismiss the appeals of Garofoli and Scibetta from their convictions. [40] The Ontario C.A. decision in Garofoli was subsequently affirmed by the Supreme Court of Canada in (SCC),1990 2 S.C.R. 1421 as follows: 1 This appeal [from (ON CA), 64 C.R. (3d) 193, 41 C.C.C. (3d) 97, 43 C.R.R. 252, 27 O.A.C.1] is part of aseries of appeals heard together by the court dealing with various aspects of the law relating to the interception of privatecommunications (hereinafter "wiretaps").

The other cases in the series are Dersch v. Can. (A.G.), S.C.C., No. 20580, 22nd November1990 [reported ante, p. 299, also (SCC), [1991] 1 W.W.R. 231], R. v. Lachance, S.C.C., No. 21197, 22nd November1990 [reported post, p. 374], and R. v. Zito, S.C.C., No. 21078, 22nd November 1990 [reported ante, p. 311]. This appeal addresses anumber of issues consequent upon the opening of the sealed packet.

Principal among them are the grounds for challenges to the validityof authorizations, what is the appropriate editing of wiretap affidavits, and cross-examination on the affidavit relied on in support of anauthorization. 2 The appellant was convicted with four others (Scibetta, Criminisi, Vanderkooy and Allen) of conspiring to import a narcotic(cocaine). The principal evidence consisted of: (

a) intercepted private communications, many of which were between Garofoli inHamilton and Frank Savasta in Florida; (

b) the evidence of Earl Smith, who was employed by Savasta to transport 3 kg of cocaine fromFlorida to Hamilton in November 1983; (

c) the evidence of Biebuyck as to the purchase by Vanderkooy of a quantity of cocaine inNovember or December 1983, and the subsequent sale and the delivery of certain of the proceeds to Scibetta; and (

d) evidenceconfirming the presence of Smith in Hamilton in November 1983 and Savasta in Hamilton in January 1984. 3 The Court of Appeal held that the jury would be warranted in finding the following facts. Garofoli in Hamilton arranged withSavasta in Florida to purchase 3 kg of cocaine. On 20th November 1983 Criminisi and Allen flew to Florida and paid Savasta $20,000 ofa total price of $61,000 for 3 kg of cocaine. Criminisi rented a car, and the cocaine was placed in its spare tire. Smith and Allen drove thecar to Buffalo, where Smith was to collect the balance of the purchase price.

Smith and Allen registered at a hotel in Buffalo, and werejoined by Scibetta. It was decided that Smith would drive the car across the border. After crossing the border, Smith and Allen drove to ahotel in Hamilton, where they registered as guests early in the morning of 23rd November. Later that morning, Criminisi and Scibettajoined them at the hotel. Scibetta removed the spare tire from the rental car's trunk, put it in his car and drove away. Smith, Criminisi andAllen went to the M & R Auto Body Shop and met Garofoli and others.

The car was stored there, with the Florida licence platesremoved. 4 Smith remained in Hamilton, attempting to collect the balance of the purchase price. Around 27th November Criminisi paid him afurther $10,000. A few days later Smith, Criminisi and Allen went to Garofoli's home to discuss the balance. They telephoned Savasta athis office in Florida from a nearby pay telephone. Criminisi spoke first to Savasta. Then Garofoli spoke to Savasta, telling him he couldbe trusted to pay the balance. While speaking to Savasta, he gave $4,790 to Criminisi, which he gave to Smith.

Then Smith spoke toSavasta, who told him to return to Florida. 5 In late November or in early December 1983 Vanderkooy and Biebuyck drove to the M & R Body Shop. Vanderkooy went in,returned with Scibetta and pointed to his car. Vanderkooy and Biebuyck left, and returned about one half hour later. Vanderkooy againwent into the shop. He returned and drove to Biebuyck's home, where he removed a package containing a kilogram of cocaine from thetrunk of his car. The cocaine was divided into 1-ounce packages. Most of it was sold, with certain of the proceeds being turned over to

Scibetta. 6 After Smith returned to Florida, there were several telephone calls from Savasta to Garofoli concerning payment of the money. In January 1984 Savasta came to Hamilton, where he met with Garofoli. 7 During the investigation there were four orders authorizing the interception of the private communications. They were granted 26th September, 29th September, 21st November and 30th December 1983 by judges of the High Court of Justice of the Supreme Court of Ontario.

The evidence of Garofoli's involvement in the conspiracy is derived in large measure from private communications intercepted under these authorizations.

These included telephone conversations which ostensibly referred to the importing of various automobiles and jewelry, but which the jury were invited to interpret as referring to cocaine. 8 At the conclusion of a voir dire to determine the admissibility of the intercepted communications, the trial judge refused to order the opening of the sealed packets containing the affidavits upon which the orders were obtained, and ordered that the wiretap evidence was admissible. The appellant did not appear for the next day of the trial. The trial was adjourned while inquiries were made as to his whereabouts.

When it appeared that there was no explanation for his absence, a bench warrant was issued for his arrest. Pursuant to s. 431.1 [now s. 475] of the Criminal Code, R.S.C. 1970, c. C-34 [ R.S.C. 1985, c. C-46 ], the trial judge made a finding that he had absconded and ordered that the trial continue in his absence. The appellant's counsel was permitted to withdraw at that point. 9 The appellant appealed to the Court of Appeal of Ontario against his conviction and sentence on numerous grounds.

It dismissed the appeal against conviction but allowed the appeal against sentence. ... 24 Another issue raised was whether there had been sufficient proof that the appellant absconded within the meaning of s. 431.1 of the Criminal Code . Martin J.A. held that "absconding" means voluntarily absenting oneself from a trial for the purpose of frustrating a trial or avoiding its consequences. He further held that the trial judge did not misdirect himself in this respect.

It was evident that the onus was on the Crown to prove that the appellant had absconded, although it was unclear whether this was on balance of probabilities or reasonable doubt. Martin J.A. held that, even assuming that the onus was reasonable doubt, there was abundant unchallenged evidence to meet the onus.

Martin J.A. noted the significance of the timing of the appellant's disappearance (immediately after the wiretap evidence was held admissible), and that his counsel admitted at sentencing that he had absconded. 25 Martin J.A. rejected the submission that much of the evidence of absconding was hearsay, and that therefore there was no evidential basis for the trial judge's finding.

Citing McCormick on Evidence, 3rd ed. (1984), at pp. 743-44, he held that negative results of inquiries such as were conducted in this case are regarded as non-hearsay, and in any event there was ample admissible evidence to find that the appellant had absconded. Having properly determined that the appellant had absconded, Martin J.A. held, the trial judge did not err by inviting the jury to draw an adverse inference against the accused.

Nor did the trial judge err by exercising his discretion to continue the trial in the absence of the appellant or his counsel, who had properly withdrawn. 26 I omit Martin J.A.'s discussion of the other nine grounds of appeal. ... 31 The appellant lists 12 points in issue, but they may be summarized as follows: ... 39 8. Did the accused abscond? ... 123 I would dismiss the appeal based on this ground for the reasons given by Martin J.A.

... 125 I have found that none of the grounds raised, except the cross-examination issue, is entitled to succeed. In my opinion, however,the appellant ought to have been permitted to cross-examine the affiant on the affidavits, and there must therefore be a new trial. [41] In R v West

(1989) Carswell BC 986, the British Columbia Court of Appeal held that a witness may testify about what hereads on a computer screen as follows: 1 This is an appeal from the decision of a judge sitting alone who convicted the appellant of break, enter and theft. 2 The circumstances were that at 12.50 a.m. on July 2, 1987, two police constables were dispatched to the scene of a break andenter at a liquor store in the City of Victoria. A window in the liquor store had been broken and it appeared that someone had entered thepremises.

The appellant was located approximately two blocks from the liquor store by one of the police officers. When he wasapprehended the appellant was riding a ten speed bicycle. He had in his possession three bottles of liquor, a bottle of Canadian ClubClassic, Lamb's Navy Rum and Wiser's Oldest. 3 The manager of the liquor store was called to the premises.

He, in his evidence at trial, described a system of 'facing up' the stockon the shelves at the end of the day so that, regardless of how many bottles of a given product were in the liquor store, the shelvesappeared full because at the front of each shelf there was at least a bottle. He checked in the area where the three products discovered onthe appellant were located and he discovered a 'hole' in each of the stocks of Canadian Club Classic, Lamb's Navy Rum and Wiser'swhisky. In that area the rest of the products were all 'faced up'.

The manager described the system maintained by the Liquor ControlBranch for keeping track of inventory in its stores. The cash registers in the stores are computers and each time a sale is made theinventory is automatically debited with the product sold.

The manager said that he counted the stock in respect of these three products.He then called up the inventory on the computer and he then prepared a document recording the inventory as disclosed by the computer.He testified that to obtain a print-out of the inventory would require between 7 and 8 hours and that rather than obtaining such a print-outhe simply called up a portion of the inventory on the screen of the computer and then prepared notes on a document, recording what wasshown on the computer screen with respect to the three products in question. 4 The manager came to court and the Crown had him produce the note he had made and tendered it as a copy of a business recordpursuant to s.30 of the Canada Evidence Act.

The trial judge struggled with the problem and ultimately admitted the document and had itmarked as an exhibit. Thereafter, the store manager proceeded to testify and explained what he had found when he inspected the stockwith respect to 'facing up' the bottles, what his physical count showed with respect to the stock on hand in the particular branch, and whathis reading of the screen on the computer showed with respect to the inventory that should be present.

He then testified that, with respectto these three products, in the sizes which were possessed by the appellant when he was apprehended, there was one bottle short in thestock of each of those brands, according to the inventory. 5 The complaint advanced on this appeal is that the note prepared by the manager was not admissible pursuant to s.30 of the CanadaEvidence Act. It is contended that the note was not a copy of a business record, in particular the inventory at this branch of the LiquorControl Board.

I think the trial judge strained in order to admit the document pursuant to s.30 but, apart from that, it is my view that theevidence of the manager was admissible. It seems to me that he was entitled, as manager, to look at the information displayed on thecomputer screen which he called up from the computer's memory bank with respect to the inventory of these particular products. He wasentitled to testify as to what he read on the screen. He was entitled to testify, of course, about what he observed with respect to the 'facingup' of the stock.

He was entitled to testify with respect to his physical count of the inventory. In my opinion, dealing with his evidence asto what he read on the computer screen, that evidence was admissible. The objection is that it was really hearsay and, as such,inadmissible. But, in my opinion, the evidence was admissible and any question as to its accuracy would go to weight rather thanadmissibility. A similar problem arose in this court in the case of R. v. Vanlerberghe (1976) (BC CA), 6 C.R. (3d)222. There, the objection was to the admissibility of a computer print out.

Bull, J.A. delivering the judgment of the court, held that thecomputer print-out was admissible in evidence but he went on, at p.225: In any event, even without those printouts, the evidence of Allison, supported as it was by Ryan, constituted definitive evidence of theresult of his own searching of records, however kept, and he swore that he concluded that the telegraphic transfers had not been made infact but were obviously fake messages.

It seems to me that equally, here, the manager was entitled to testify as to his search of the records with respect to inventory. 6 The trial judge marked the note prepared by the manager as an exhibit, pursuant to s.30 of the Canada Evidence Act. In my opinion, the witness was entitled to bring the note to court and to use it to assist him in giving his evidence to refresh his memory as to the details. Upon the basis of the evidence that he recorded on the note the details that appeared on the computer screen, the note could be marked as an exhibit.

The fact that the note was marked pursuant to s.30 rather than as a note, in my opinion does not alter the situation. The trial judge was entitled to have regard to the evidence of the witness. The evidence of the manager was significant evidence because all the evidence in this case was circumstantial evidence.

The judge regarded the evidence with respect to the state of the inventory in the store as significant and he relied upon it in deciding that, on the whole of the evidence, the charge had been proved beyond a reasonable doubt. 7 In my opinion that decision was open to him on the basis of the evidence that was before him. For those reasons I would dismiss the appeal. 8 I agree with everything that has been said by Mr. Justice Hinkson.

If there was an error in law in permitting the introduction of this document under s.30 of the Canada Evidence Act, the same evidence would have been before the court on the basis of the principles outlined by Mr. Justice Hinkson and, accordingly, this would be a case where s.631(1)(b)(iii) of the Criminal Code would be applicable because the verdict would necessarily have been the same. For the reasons given by Mr. Justice Hinkson J, too, would dismiss the appeal. 9 For the reasons given by my brother presiding, I would dismiss the appeal. 10 The appeal is dismissed. [ 42 ] In the present appeal is Cst.

Lorenz's evidence hearsay by this analysis, and was it admissible pursuant to these authorities? A. Standard of Review [ 43 ] The standard of review on a question of law is correctness. The standard of review for the application of a legal standard to a set of facts, a question of mixed fact and law, is a palpable and overriding error.

However if it is clear the Trial Judge made an extricable error in principle in characterizing the standard or its application, then that error may amount to an error of law, subject to the standard of review of correctness. [ 44 ] The question of whether certain evidence is hearsay and whether that hearsay is admissible is a question of law and subject to a standard of correctness. B. NEGATIVE COMPUTER INQUIRIES ARE NOT HEARSAY [ 45 ] Hearsay is defined as an out of court statement tendered for the truth of its contents.

The rule against hearsay was put into place to protect against unsworn evidence that is not subject to cross-examination. It is a rule that safeguards the reliability of evidence as well as trial fairness. [ 46 ] The Appellant argues that Cst. Lorenz's testimony regarding the absence of a report on the police reporting system (EPROS) is hearsay because the source of the information is not present in the court.

However it is impossible for there to be a source of non-existent information as there can be no author of something that does not exist. [ 47 ] A similar situation was considered by the Ontario Court of Appeal in R v Garofoli and upheld by the Supreme Court of

Canada. In Garofoli , the accused failed to appear for the second day of his trial. The accused was convicted of absconding based on the following evidence: - Cst. Wide testified that he went to the accused's residence and spoke to the accused's wife. He observed that nothing in the house appeared to be disturbed. The watch and ring usually worn by the accused were on the kitchen counter, but the necklace and bracelet usually worn by the accused were not found. The family car was in the driveway. - Cst.Wide checked with the neighbours and they had not observed anything unusual. - Cst.

Wide checked with hospitals and the reports were negative that the accused had been in an accident. - Cst. Wide checked the roster at the central police station in Hamilton and found that the accused was not in custody. - Cst. Wide provided the appellant's photograph to the RCMP and the airports, but had not received any reports from them. - Sgt. Pearson spoke to the other officers in his unit and they had no information on the whereabouts of the appellant. - Sgt.

Person testified that the Hamilton police department would be notified within a period of 48 hours if another police force were concerned about finding an unidentified body, but no such notification had been received. - Cst. Campbell testified that he had checked with the regional police for occurrences relating to sudden death. - Cst. Campbell checked area hospitals for admission of the accused. - Cst. Campbell checked area hotels to determine if anyone with the accused's description had registered. - Cst. Campbell inquired at the airport to determine if the accused had left or attempted to leave. - Cst.

Campbell made a national broadcast and inquired about unidentified bodies matching the accused's description, which was negative. - Cst. Campbell contacted local police and the RCMP and determined that the accused was not in their custody. [ 48 ] Essentially, the entirety of the Crown's case involved the absence of information from various external sources testified to by the police officer who made the inquiries. Other than the observations of the home, none of the evidence derived from the direct experience of any officer. [ 49 ] Defence counsel appealed the verdict on the basis that the evidence was hearsay.

In rejecting this argument, Martin J.A. clearly stated that "evidence of negative results of inquiries such as were conducted in this case is regarded as non-hearsay and, in any event, is regularly admitted: see McCormick on Evidence, 3 rd ed.(1984) at pp.743-44."(emphasis added) [ 50 ] The argument was raised once again at the Supreme Court of Canada, who similarly rejected the argument, relying on the

reasons of Martin J.A. in the Court of Appeal decision. [ 51 ] The British Columbia Court of Appeal has considered whether a witness can testify as to what he/she observed on a computer screen in R v West . Mr. West was convicted of breaking and entering a liquor store and stealing liquor. The Court of Appeal considered the evidence of the manager of the liquor store who testified that he observed that the liquor was missing from the store and that the cash registers did not record a sale of the missing liquor, indicating that it was stolen and not sold.

The manager made notes of his observations of the computer screen. [ 52 ] At trial, the Crown was allowed to enter the manager's note indicating that there was no record of sale for the liquor as a business record pursuant to s.30 of the Canada Evidence Act . The accused appealed on the basis that the note was not admissible pursuant to s.30 of the Canada Evidence Act because it was not a business record.

In dismissing the appeal, Hinkson J.A. held that the manager's viva voce evidence was admissible because "he was entitled to testify as to what he read on the screen." The court went on to hold that "any question as to its accuracy would go to weight rather than admissibility." The note, while not admissible pursuant to s.30 of the Canada Evidence Act , was nonetheless admissible because it was used by the witness to refresh his memory. [ 53 ] West was considered, and followed, in a more recent decision by the British Columbia Supreme Court. In United States v Earles

(2001) BCSC 185, Justice Melvin held that "a witness is entitled to testify as to what has been displayed on the computer or record screen and to report what the witness has seen as a result of activating the mechanism which records the record."His Reasons read as follows: 1 THE COURT: The hearing now concluded, the issue is whether or not the United States of America should receive the committal order it seeks regarding the extradition of Mr. Earles to stand trial on the charges which are comparable to the cultivation or conspiracy to cultivate marihuana in Canada.

In support of the application, authenticated documents were tendered as exhibits. The evidence in support of the application is in the form of affidavits. This affidavit material was subject to extensive challenge on behalf of Mr.

Earles. 2 The forms of challenge seem to be in approximately five areas: first, hearsay in the classic sense where the deponent is reporting what others have told to him in the course of interviews or otherwise; second is what I will call "source identification deficiency." It will now become a classic line, since I just made it up, which raises issues of personal knowledge versus information received.

In other words, the source of the information is either personal or from third parties; third is the information or record check issue, for example, motor vehicle searches, computer searches, utility record search — examples of that are found in Mr.

Dule's second affidavit at para. 22 — without identifying the individual conducting the search, or the mechanism, or the authenticity of the record or the record keeping; fourth, conclusory statements; and, fifth, the description of documents rather than the documents themselves as evidence when the documents apparently exist and there would appear to be no difficulty in reproducing them as exhibits. 3 The classic hearsay objections are valid, in my opinion, and those portions of the affidavit material which are subject to that criticism are to be ignored, and those criticisms relate mainly to statements found in what I will call "police" or "authority" affidavits, as distinguished from the individuals.

I do not propose to go through each affidavit and identify each paragraph or sentence as objectionable. I think counsel identified those portions quite clearly in their submissions, and I think it is fair for me to say that counsel for the United States agrees that portions are referred to, which are classic hearsay, are not to be considered as evidence in support of the application today. 4 What I described as "source identification deficiency," the record checking procedures, conclusory statements and description of documents, in my opinion, are to be viewed somewhat differently.

The extradition judge is not to weigh evidence or assess its reliability. The admissibility of evidence on this hearing is based on Canadian law, and I agree with counsel for the United States that there is a distinction between objectionable hearsay in the classic sense leading to exclusion of evidence and defects in evidence which may have an impact on weight. 5 As is stated earlier, this hearing is not a trial, but an inquiry to determine if the evidence tendered establishes a prima facie case that an extradition offence has been committed; Mellino Argentina (Republic) v.

Mellino, 1987 CarswellAlta 94 (S.C.C.) ] was a classic authority for that proposition. United States v. Shephard [1976 CarswellNat 1 (S.C.C.) ] sets out the standard of the burden, that is, the same as that of a preliminary inquiry. What is required to commit in any case is admissible evidence that could, if believed, result in a conviction.

6 Bearing those principles in mind, I will address the evidentiary issues. First, as to computers or evidentiary record checks, as the case may be, a witness, in my opinion, is entitled to testify to what has been displayed on the computer or the record screen and to report what the witness has seen as a result of activating the mechanism which records the record; R. v. West [1989 CarswellBC 986 (B.C.

C.A.) ] in our Court of Appeal is authority for that proposition. 7 As to source identification deficiency, in other words, we do not know whether the individual was deposing from personal knowledge, or from what he has heard from third parties, or what documents he or she may have looked at, the evidence in and of itself and on its face is admissible. The issue then becomes one of weight to be attached to that evidence.

Conclusory statements, in my view, are in the same category; they go to weight to be attached to the statements, not whether they are admissible. 8 There is a challenge as to the admissibility of statements made in the police officer's affidavit as relating to description of documents, for example, the memo with Mr. Rose's (phonetic) name on it and perhaps Mr.

Rose's telephone number on a memo, and the objection was that these items should be produced as exhibits to the affidavits in order that the court can conclude or interpret what the documents were and what they actually say, and, of course, then be able to determine the relevance. 9 I do not agree in this limited sense. In my opinion, a witness may describe what he saw — what he seized. A witness may describe a document, for example, a contract, as being a number of pages with certain names on the front page, for example, William Smith and George Brown.

What the witness cannot do, on the assumption that the document exists, is interpret the document. In the case at bar, the description of the document, a memo with a name on it, in my view, does not offend the

interpretation aspect of the ruling which I have just made and as a result the evidence is admissible. 10 Rejecting that classic hearsay statement, which I mentioned, mainly found in authorities' affidavits, police affidavits, or interviews I reported, what evidence is left upon which this court should consider? There is the Stewart (phonetic) affidavits, John Giddon's (phonetic) affidavit, Mark Giddon's affidavit, the Rose affidavit, Snook (phonetic) affidavit, White (phonetic) affidavit, Mr.

Well's affidavit concerning seizures, Schroeder's (phonetic) affidavit, the analyst, and Officer Dunlap's (phonetic) affidavit. I considered that evidence as it is admissible, in my view, and relevant to the issues which are to be considered at this hearing. 11 Exhibit 1 is the authority to proceed and it describes Canadian offences which correspond, for example, Count 1, the conspiracy to produce, conspiracy to cultivate.

"Conspiracy," as counsel have indicated, is an agreement of two or more to perform an illegal act which can be established by direct evidence of the agreement, which is in many instances unlikely, or circumstantial evidence, or a combination of both.

The cumulative effect of the direct or circumstantial evidence may lead to the compelling inference of the existence of the essential agreement, which is the foundation of conspiracy. 12 So far as the second count, production, that is, cultivation of marihuana, the evidence of the affidavits that I refer to, Stewart, the two Giddons, Rose, all establish that there has been cultivation, all establish a participation by Mr. Earles, all of which leads to the conclusion, in my view, considering the evidence cumulatively, that there is overwhelming evidence to justify the committal of Mr.

Earles in relation to the offences set forth in the authority to proceed. The order for committal will follow. [ 54 ] On the basis of the binding authority of Garofoli , and the persuasive authority of West and Earles , I conclude the Commissioner was correct in law in holding that the results of the negative computer inquiries were not hearsay. I conclude that Appellate intervention is not warranted on this ground. C. AN ABSENCE OF INFORMATION IS NOT NECESSARILY HEARSAY [ 55 ] The Appellant goes on to argue that Cst.

Lorenz's testimony regarding the fact that he was not forwarded a report from any other officer is hearsay. I conclude that this is not in fact hearsay because it is Cst. Lorenz's direct evidence as to his experience and the documents of which he was (or was not) in possession. Cst. Lorenz did not testify as to information he received from other sources; he only testified about documents and information arising from his personal experience. [ 56 ] If Cst.

Lorenz had received information from another officer, he would be entitled to testify that he had received information from another officer and the circumstances under which the information was received. The rules of hearsay would merely

preclude him from testifying as to the content of the information, but not the context of the conversation. [ 57 ] Finally, this situation is specifically contemplated in Garofoli , and the Ontario Court of Appeal clearly held that the results of negative inquiries are not hearsay and should be admitted. This holding was affirmed by the Supreme Court of Canada. THE CONVICTION FOR FAILING TO REPORT THE COLLISION EVEN ABSENT THE ALLEGED HEARSAY [ 58 ] The Traffic Commissioner relied on the information regarding (

a) the absence of a report in the computer system and (

b) the absence of a report being forwarded to Cst. Lorenz in coming to the conclusion that the Crown had proven a failure to report a collision beyond a reasonable doubt. The question, then, is whether that verdict can be upheld absent that evidence. [ 59 ] The Crown submits that there was sufficient evidence to ground a conviction for Mr.Saddleback's failure to report the collision. The court heard evidence from two officers who testified to multiple attempts to contact Mr. Saddleback, including phone messages and letters mailed to his registered address.

The court record reveals that the letters were sent to the appropriate address since Mr. Saddleback sent an agent to appear on his behalf on the appearance date that was mailed to the same address. Both officers testified that they received no response from Mr. Saddleback and they did not come to possess a collision report filed by him, nor were they aware of any collision report filed by him with any other officer. It was accepted by the court that normal police procedure dictated that Cst. Lorenz would have been notified if Mr.

Saddleback had made a report. [ 60 ] While not necessary for my ultimate disposition herein, I conclude that it would be appropriate to find reasonable doubt as to the filing of the report in these circumstances. It is possible that Mr. Saddleback may have gone to another police officer and reported the collision, and that police officer failed to deal with the report appropriately, or if the officer inputed the report appropriately, that the system failed to record/report it. Accordingly, I do not accept the Crown ’ s submission that there could have been a conviction entered even absent the alleged hearsay.

Disposition [ 61 ] The appeal is accordingly dismissed. Heard on the 25 th day of October, 2012. Dated at the City of Edmonton, Alberta this 31 st day of October, 2012. Donald Lee J.C.Q.B.A. Appearances: Megan Rosbourough Alberta Justice for the Respondent (Crown)

Ian Runkle Beaver Leebody Frank & Simic for the Appellant (Accused)