R v MacMullin, 2013 ABQB 741

Court of Queen ’ s Bench of Alberta Citation: R v MacMullin, 2013 ABQB 741 Date: 20131219 Docket: 110295011Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Allan Dawson MacMullin and Roy Elander Accused _______________________________________________________ Decision of the Honourable Mr. Justice A.W. Germain ( Voir Dire document admissibility ruling) _______________________________________________________ Table of Contents I. Introduction . 3 II. Background on the Alleged Misconduct 4 III. Admission of Documents . 5 A. Document Categories . 5 B. The Position of the Parties . 5 1. Group A: Land Titles Office Documents . 7

a. Land Titles . 8 b. Copies of Documents Submitted to the LTO .. 8 2. Group B: Alberta Corporate Records . 8 3. Group C: Affidavits (With Attached Exhibits), Per CEA , s 29 . 9 4. Group D: CEA , s 30 Documents . 9 5. Group F: Necessary and Reliable Documents . 10 C. The Voir Dire Evidence . 11 1. Land Titles Documents . 11 2. Financial Institution Documents . 11 3. Document Copies Are Accurate . 13 D. Legal Analysis – Admission of Documents . 14 1. Overview of the Law of Documentary Evidence . 14 a. The Evolving Approach to Hearsay Evidence . 14 b. Hearsay and Documents . 17 c.

The Ares v Venner General Principle to Admission of Documentary Hearsay Evidence 19 d. Threshold vs. Ultimate Reliability . 21 e. Application of the General Hearsay Principle to Documentary Evidence in this Proceeding 23 2. Detailed Legal Analysis by Document Group . 24 a.

Interpretation of Legislation . 25 b. Group A Documents: Land Titles Office Records . 25 c. Group B Documents: Alberta Corporate Records . 28 d. Admission of Records utilizing the CEA .. 29 i. Group C Documents: Documents Admitted Under CEA , s 29 . 34 ii. Group D Documents: Documents Admitted Under CEA , s 30 . 36 iii. Specific Objections to the Group D Documents . 40 e. The Group E Exhibits . 52 f. The Group F Exhibits . 52 IV. Charter Analysis . 52 A. The Crown’s Position . 52 B. The Defence Position . 53 C. Analysis . 53 1. Lavallee . 54 2. Alternative But Constitutional Search Mechanisms Are Valid . 54 3.

Does Mr. Elander Have a Privacy Interest Which he can Protect by Raising a Charter Breach Argument? 55 V. Conclusion and

Summary . 58 I. Introduction

[ 1 ] This decision addresses a voir dire application on whether proposed documentary evidence is admissible in the trial of Allan Dawson MacMullin [“Mr. MacMullin”] and Roy Elander [“Mr. Elander”]. Mr. MacMullin faces trial on 41 counts of fraud over $5000.00 ( Criminal Code , RSC 1985, c C-46, s 380(1)(a)). Mr. Roy Elander is charged jointly with Mr. MacMullin on 26 of those counts. [ 2 ] All of the counts are the same, and are reproduced in Appendix A to this judgment.

They generically allege: Between the first day of January 2000 and the 31 day of July, 2005, at or near [a location] in the province of Alberta, did by deceit, falsehood or other fraudulent means, defraud [a financial institution] of money, of the value exceeding $5000, by providing false information to [a financial institution] in support of a mortgage application in the name of [an individual] for [property address] contrary to section 380(1) (

a) of the Criminal Code . [ 3 ] The counts vary only to the extent that several institutions are involved, different properties were mortgaged and different borrowers utilized. [ 4 ] On September 24, 2013, I delivered short oral reasons why, with only minor limitation, the documents tendered by the Crown should be admitted as trial exhibits either as exhibits or as exhibits for the purpose of identification. I also rejected an application to exclude certain evidence flowing from the alleged breach of Mr. Elander’s Canadian Charter of Rights and Freedoms,

Part 1, Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [the “ Charter ”] s 8 right to be free of unreasonable search and seizure. In delivering those oral reasons I undertook to release formal, detailed, and comprehensive reasons as quickly as possible, but in any event prior to the conclusion of this trial. These written reasons fulfill that undertaking. [ 5 ] At issue is the admissibility of perhaps 90,000 pages of copied files and documents of various types. All have all been replicated electronically to reduce paper handling in this trial.

These copied and/or digital copy documents represent the paper trail of the alleged fraudulent scheme. [ 6 ] There are two separate issues addressed in this judgment. First whether the documentary evidence is admissible under an exception to the general prohibition against hearsay, and second, the alleged breach of Mr. Elander’s s 8 Charter rights. II. Background on the Alleged Misconduct [ 7 ] Since admissibility rulings are more readily understood against a factual background I will set out the misconduct alleged by the Crown.

Despite this recitation the two accused are presumed innocent, are not obliged to prove their innocence, and none of the facts that I refer to here have been proven beyond reasonable doubt. [ 8 ] The theory of the Crown is that Mr. MacMullin was the ringleader in a mortgage fraud scheme intended to defraud various financial institutions. The scheme was that Alberta residential real estate was initially purchased, and then an impression of increasing price and value was created by ‘flipping’ the property to ‘straw buyers’.

These sales, often close in time to the original purchase, would be for a higher price. [ 9 ] In the context of this case a ‘straw buyer’ is an individual who would lend their name to the purchase of property and mortgage application without any intention of becoming the equitable owner. The equitable owner would remain either Mr. MacMullin, his corporations, his close associates, or other investors. In many cases, the straw buyer would certify under oath that the purchase was to provide a principal residence for the straw buyer.

In those cases, a higher loan to value percentage of financing can be obtained, thus maximizing the amount loaned by the financial institution. The cash flow into the scheme was therefore accelerated both by the increase in the value of the property and by a mortgage often as high as 95% of that inflated value. [ 10 ] The scheme collapsed when some mortgages went into foreclosure with personal recourse against the ‘straw buyers’, who realized too late that they faced civil and potential criminal jeopardy. One or more of the straw buyers complained to the RCMP. [ 11 ] The second accused, Mr.

Elander, was a lawyer who practiced law in the community of Red Deer, Alberta. The charges he faces flow from situations in which his firm performed the legal work for either Mr. MacMullin, a straw buyer, or the financial institution. III. Admission of Documents A. Document Categories [ 12 ] The Crown has asked the Court to rule on the admissibility of numerous documents which it has grouped into certain classifications. However, the Crown makes clear that this classification system is for convenience, and not an election that any given document cannot be admitted on any other basis.

Defence submissions also largely followed the Crown’s schema. It seems practical to organize this judgment and its analysis on the Crown’s classification. [ 13 ] The categories of documents the Crown wishes to tender as exhibits and that are the subject of this decision are: Group A: documents supplied electronically from the Alberta Land Titles Office [“LTO”]; Group B: documents obtained electronically from the Alberta Corporate Registries Office; Group C: financial institution records sought to be admitted pursuant to Canada Evidence Act , RSC 1985, c C-5 [the “ CEA ”] s 29;

Group D: financial institution, or law firm records sought to be admitted pursuant to CEA , s 30; and Group F: financial and other organization records which have been lost or destroyed, with copies now sought to be admitted as exhibits as an exception to the hearsay rule on the basis of reliability and necessity. A final group of documents, Group E in the Crown’s classification, are proposed be entered, initially, for the purpose of identification. B.

The Position of the Parties [ 14 ] The Crown accepts the burden of proving the admissibility of all of the documents through one of the exceptions to the prohibition against hearsay evidence. The classification they chose to organize the documents is not an election of argument, but merely for convenience.

The Crown’s overarching submission is that these materials should be admitted as evidence either: 1. authorized by provincial statute - Land Titles Office documents and records; corporate records; 2. as exceptions under the CEA – file materials from financial institutions, mortgage brokers, and law firms; or 3. as a principled exception to the hearsay rule, which potentially applies to all documents that the Crown proposes to have entered.

In total, the Crown seeks to have 90,000 pages or so of material entered as exhibits, or for the purpose of identification. [ 15 ] A theme that runs through the Crown’s argument is that courts are taking an increasingly liberal approach to the admission of documentary evidence. Irregularities and shortcomings in the proposed exhibits should go to weight rather than initial admissibility. [ 16 ] The overarching position of the Defense is to stress that hearsay evidence is presumptively inadmissible in a criminal proceeding. Documentary records usually require witnesses to provide evidence.

Exceptions to the hearsay rule operate as exceptions to the usual requirement of witnesses providing evidence. Statutory and common law exceptions should be narrowly construed, as should the definition of business records and documents made “in the ordinary course of business”. [ 17 ] This cautious approach to documentary hearsay also applies to the exceptions to the admissibility of documents contained in CEA .

Section s 30(10) of the CEA should be widely interpreted. This approach leads, for example, to the argument that a lawyer’s file could never be admitted under CEA , s 30 as a business record because to do so would clash with the CEA , s 30(10) prohibition that restricts the application of the CEA to documentation where legal advice is being sought. [ 18 ] In chart

summary the parties assert as follows: Group : type Crown Mr. MacMullin Mr.

Elander A: land titles, electronic certificates of title admissible by statute agreed agreed A: land titles copies of filed documents admissible by statute and or as exceptions to the hearsay rule originals are available and should be obtained agrees with Crown B: Corporate Registry documents admissible by statute agreed agreed C: admissible under CEA , s 29 (2 files) admissible by statute, or admissible only to prove receipt. adopts Elander argument plus a technical issue about the ATB not meeting the 29(9) definition of financial institution. one file [ATB] complies; the other [RBC] does not because there is third-party records entrained in the file.

D: admissible under CEA , s 30 (the vast majority of files) admissible by statute not admissible by statute, the Crown argues an overly broad definition of a business record. Affidavits have irregularities and are inconsistent on the nature and quality of the supporting evidence. Some lawyer files are excluded under CEA , s 30(10). not admissible by statute, the Crown argues an overly broad definition of a business record. Affidavits have irregularities and are inconsistent on the nature and quality of the supporting evidence.

E: miscellaneous brokers, law offices, other institution files (identification only) admissible as an exception to the hearsay rule on the basis of reliability and necessity agreed - admissible for identification only. Reserves the right to object on application to make these documents a formal exhibit. agreed - admissible for identification only. Reserves the right to object on application to make these documents a formal exhibit.

F: financial institution records, required as an exception to the hearsay rule on the basis of necessity and reliability admissible as an exception to the hearsay rule on the basis of reliability and necessity adopts the position taken by Mr. Elander not admissible: these are primarily lost files which could have been property seized by police either by agreement or court order. As the police failed to do so the reliability and necessity exception should not apply. 1. Group A: Land Titles Office Documents [ 19 ] This group of documents is divided into two subgroups.

The parties agree that the copies of Land Titles themselves are admissible, but disagree on the status of third party documents that were submitted to the LTO by third parties (usually lawyers) to create the titles. a. Land Titles [ 20 ] Dealing with LTO titles themselves (documents that reflect an ownership interest of land in Alberta), the Crown asserts that a combined reading of CEA , ss 24-25, together with Land Titles Act , RSA 2000, c L-4, ss 4, 13, 201 and Government Organization Act , RSA 2000, c G-10,

Schedule 12, s 9 all lead to the admissibility of those documents. The Defendants agree with this proposition as it relates to the LTO titles themselves. b. Copies of Documents Submitted to the LTO [ 21 ] The second group of land titles documents are those the LTO receives for registration. These include transfers, mortgages, caveats, court orders of foreclosure, and other registerable documents. The Crown submits these documents are admissible by virtue of the above cited sections but also as a principled exception to the hearsay evidence rules.

This submission is based on the evidence of the manager of the LTO, Mr. Curtis Woollard, who has the government level of a deputy minister. Mr. Woollard indicated he compared the documents with the electronic records and concluded that they were all proper records of the LTO.

These documents are by nature of the sophistication of the land titles office both necessary and reliable: 1. necessary , because the original documents are difficult to access, and rarely obtained from a storage facility, and 2. reliable , as every solicitor in the province of Alberta and other institutions rely on these documents without question. [ 22 ] Mr. Elander’s position on the LTO copies of instruments is that these documents may be admitted. Mr.

McMullen, however, submits that these documents should not be admitted they are not under seal, and that a narrow reading of Land Titles Act , s 201 should be applied as admission of these documents is an exception to the hearsay rule. The Court is also asked to reject the documents as violating the best evidence rule because the LTO manager acknowledged that in the case of a signature fraud looking at the original document might be more useful than a copy which does not reveal such things as the actual impression of the pen onto the paper. However, Mr.

McMullen offers no specific examples of where just such a counterfeit signature may exist, so this complaint is strictly hypothetical. Counsel for Mr. McMullen also points out that this is a criminal trial and the court should be cautious before relying on a provincial statute to permit admission of a document in a criminal trial. However that submission is contrary to the explicit Parliamentary instruction to apply provincial rules of evidence found in CEA , s 40. 2.

Group B: Alberta Corporate Records [ 23 ] The Crown did not call any representative from the Alberta Business Corporations Branch, the institution that is mandated, responsible for, and maintains corporate records. This branch of the government has now gone to an electronic record-keeping system. No evidence was led to further augment the Crown’s application because prior to the commencement of the voir dire counsel for both Accused conceded that the corporate records could be admitted. 3.

Group C: Affidavits (With Attached Exhibits), Per CEA , s 29 [ 24 ] There are only two files that are found within this classification. The Crown asserts that these records are copies of entries from books or records that belong to financial institutions. However, it is clear on a review of these two real estate transactions that these bank records contain a few extra documents: 1. an offer to purchase real estate, and 2. other non-bank material.

In the context of this case the Crown says that those documents are not tendered for the truth of their content but simply as proof that these items were received and introduced into the file of the financial institution. [ 25 ] The position of the Defence is mixed on this issue. Mr. Elander concedes the admissibility of the set of documents from the Alberta Treasury Branch, but denies the Crown is entitled to introduce the other records under CEA , s 29 because those files contain non- financial institution records. Mr.

MacMullin asserts that the Crown is unable to introduce the documents under CEA , s 29, nor any other established exceptions to the general prohibition against hearsay. 4. Group D: CEA , s 30 Documents

[ 26 ] This group of documents represent the largest proportion of the paperwork that is the subject of this voir dire . The position of the Crown is that the CEA , s 30 business records hearsay exception is to be given a wide

interpretation and may include reliable third- party records entrained into business records received from that third party during the course of the business. The defence submission on this point is the opposite. [ 27 ] The Defense position is that ‘business records’ cannot include records that are supported by an affidavit taken by a person who was not part of the business. Two specific examples illustrate this scenario: 1. Mr.

Elander’s legal files are being introduced as exhibits to a standard form affidavit deposed by an employee of a different law firm, the Cruickshank law firm, which on a contractual basis took over management of the Elander files. 2. Certain records are in the possession of financial institutions which had acquired the interests of smaller trust companies; raising the issue that employees of the ‘acquiring’ institutions cannot satisfy the threshold requirement for the CEA , s 30 admissibility exception because ‘the records’ are not their business records. [ 28 ] Further, counsel for Mr.

McMullen argues that CEA , s 30(1)(a)(ii) excludes the legal files as they are a record made in the course of obtaining or giving legal advice. Defence counsel take as a fallback position that all documentary information should be excluded in the cases where there was litigation associated with the file. There are two general examples of this situation: 1. a fire occurred in one of the mortgage properties that led to investigation and litigation, and 2. other properties were the subject of foreclosure litigation actions. [ 29 ] Finally, some files include RCMP requests for copies.

The Defence argues these RCMP requests and any information they may include to justify the request should be excluded.

The Defendants assert that all of this litigation correspondence must be edited from the files, even if the court does allow its admission. [ 30 ] Finally, learned Defense counsel points out that there are a number of files that have affidavit irregularities, such as: 1. more than one affidavit referencing a single bundle of exhibits without a proper link or foundation back to those exhibits; 2. the evidence of the deponent of the affidavit is undercut by the viva voce , voir dire evidence that the records did not have to be retained for security purposes; and 3. some affidavits are not by a person who made the copies. 5.

Group F: Necessary and Reliable Documents [ 31 ] Upon initial review, it would appear that the Crown sought to admit the documents in group F as CEA , s 29 exceptions to the common law prohibition on hearsay evidence rules. The initial affidavits attached to the exhibits appear to imply that. However, in the years that have intervened the actual files have gone missing and when those files were recently sought for final trial preparation the financial institutions advised the Crown attorney’s office that they could no longer locate those files.

This does not mean that the original versions of these records no longer exist, but at a minimum those original records were never found. [ 32 ] The Crown seeks to have these documents admitted as a principled exception to the hearsay evidence rule and asserts that they are both necessary and reliable: necessary : because that is the only way these materials are available to the Crown at the time scheduling of this trial, and reliable: because they represent in essence a copy of a financial institution file at a time and place when the file copy was created from routine banking documents. [ 33 ] Learned Defense counsel say that these materials are not necessary and reliable and should be excluded on a public policy basis because the Crown at one time had access to the original documents, but elected not to obtain warrants or take other steps to safeguard the documents.

The Crown should not be permitted to introduce material where they cannot produce an original version, if so ordered. C. The Voir Dire Evidence [ 34 ] During the voir dire the Crown called a number of witnesses: 1. the investigating RCMP officer, Sgt. Harry Schmidt; 2.

Curtis Woollard, a deputy minister equivalent of the Crown responsible for the administration of the Alberta Land Titles Office; 3. certain employees from the security branches of some of the financial institutions involved: John Grant Evans – ING Financial; Bruce Dvorak- Bank of Montreal [“BMO”]; Douglas Robinson - Scotiabank; John Busst – Toronto Dominion Canada Trust [“TD Can Trust”]; and 4. two Alberta solicitors: Mr. Moore who provided copies of legal files by affidavit; Mr. Cruickshank, who provided the Elander file copies by affidavit. 1. Land Titles Documents

[ 35 ] Sgt. Schmidt indicated that he identified the land titles documents and the corporate registry documents from their respective electronic access websites, printed each document without alteration, and presented them in their copy form. Mr. Woollard also examined all of the Land Titles [“LT”] files and concurs that they represent unaltered documents obtained electronically from the Alberta LTO program that allows online searches of LT records. [ 36 ] Mr. Woollard explained that there is no longer a real paper title created nor in existence for any property in Alberta.

Todays ‘title’ is an electronically generated document - a virtual title. One group of the LTO documents represent these electronically generated titles. The second group of LT documents are a photocopy scan of the documents that were submitted for registration and then referenced on the electronically generated titles by a unique assigned number and description. The quality of the notional titles as a pure electronic document is better than the photo scans of the filed documents which copy any inherent faintness, weakness, or uncertainty from the presented documents to the electronic document format. 2.

Financial Institution Documents [ 37 ] Representatives were called from the TD banking group, the BMO, Scotiabank, and ING Financial. The various financial institution files do not, in their entirety, fall solely in CEA , ss 29-30, and there are in some cases two further complications: 1. Two of the financial institutions hold the records by having purchased smaller financial institutions that made the loans that are the subject of these fraud charges. A consequence is that some of these financial institutions possess business records that were acquired from these smaller financial institutions. 2.

The financial institutions were unable to locate the original versions of certain documents. These files are now considered lost and unavailable as a consequence of the passage of time and a combination of offsite storage and clerical handling. [ 38 ] The representatives of financial institutions were called in relation to the missing documents or acquired documents.

Despite the fact that the original versions of these documents have disappeared, there is no dispute that the now missing original documents were at an earlier point in the possession of the financial institutions who responded to the RCMP by supplying affidavits; those affidavits incorporated copies of the documents as exhibits. [ 39 ] In some cases both problems apply to a single set of documents: the files initially belonged to a now acquired trust company, and those original documents are also now lost. [ 40 ] In a broad

summary the RCMP officer indicated that as he investigated the fraud he contacted the financial institutions and supplied pro forma sample affidavits that the financial institution could either use or adapt, containing wording that would in the RCMP’s assessment comply with CEA , ss 29-30. [ 41 ] In response, the financial institutions made copies of their files and with varying levels of precision either identified them as “schedule A” or as “schedule A containing a [number] of pages”. The Copier would arrange to have these copies notarized and sent back to the RCMP.

Once the RCMP received the affidavits and copied files those materials were secured and safeguarded in a normal way. The original affidavits with their photocopies are the proposed exhibits. To assist in the litigation the RCMP also scanned all of the files received from the various businesses and financial institutions. These electronic copies became working electronic ‘pdf’ digital documents. This is for court convenience only - the paper copies are the proposed exhibits. Sgt.

Schmidt could not provide evidence about the continuity, safekeeping, or record-keeping technology of the financial institution but asserts under oath that once he had the documents they remained secured. [ 42 ] A review of the affidavits also confirms that no matter whether the RCMP pro forma affidavit was utilized, or the legal department of the financial institution intervened to ‘polish up’ the document, the routine wording incorporates language that indicates the financial institution had attempted to submit document by affidavit, following CEA , ss 29-30.

The affidavits all assert that these are the ‘business records’ of the organization, made in the ‘course of the ordinary business’ of the organization. It is fair to say that when one studies a random sample of the numerous pages attached to the affidavit, the affidavits must be read from a definition point of view in a liberal and inclusive way or the affidavit is undercut by the exhibits attached.

In virtually all of the files when the financial institution (or other organization) asserts that these documents are their business records ‘made in the ordinary course of business’ the deponents are not technically correct as some of the attached exhibits reflect a document clearly created by a third party and sent to the financial institution. Typical examples are tax notices (both municipal and federal), pay verification records, sales agreements upon which the mortgage is based -to name just a few.

The deponents seem to assume that the phrase ‘made in the ordinary course of business’ covers the entrainment of third-party documents into the file of the business. [ 43 ] The officers of the financial institutions who gave evidence in this case are generally from the security departments of those institutions. In a general way their evidence was intended to bridge the gap created by the fact that some of the original file materials had gone missing after they had been photocopied and sent to the RCMP.

In one case, however, the witness did actually bring with him original files but wanted and was allowed to take the original files back to his workplace, provided that he redid his affidavit and had it properly commissioned in Alberta. [ 44 ] To varying degrees all of the witnesses did have actual experience with the mortgage process at their financial institution, either because they evolved through the ranks, or their investigative duties had allowed them to examine numerous examples of that kind of file.

They collectively opined that at least for the documents that clearly and obviously emanated from the financial institution all of these materials were made in the ordinary course of business. 3. Document Copies Are Accurate [ 45 ] The RCMP began collecting the paper documentation in this case some years ago. That the case is only coming to trial now in 2013 creates an inferential explanation about why some of the documents are now no longer even producible in original form should the Crown’s application for admission of hearsay evidence fail.

The direct indictment in this case was preferred on March 9, 2011, a period

of time 6 to 11 years between the date of the first alleged offense and the last. It is understandable that financial institutions andbusinesses become less protective of their documents as it became less likely that they would ever be needed. It is reasonable andunderstandable that the paper trail in a case like this would continue to get colder and older. However, there is a difference between apaper trail getting colder and it becoming less reliable with the passage of time. The investigative risk to delay is not that the documentsalter but that they disappear.

I am prepared as a factual platform for my legal ruling to conclude that the paperwork consisting of the90,000 or so pages represent true and accurate photocopies of the files as they were found at the financial institutions, law offices, orbrokerage houses, at the date when the RCMP requested copies of files.

I am also prepared to find that the affidavits, as flawed as theymay be in some cases (generally by their failure to be specifically adapted to the unique factual situation) are accurate and reliable whenthey assert that the copies made are true copies. [46] I also conclude that the paperwork that was photocopied and sent to the RCMP and which was thereafter safeguarded by theRCMP does represent routine records which, if not created specifically by the financial and other businesses and institutions, were atleast compiled at the time, placed on the file as they were received, and were copied and forwarded to the RCMP without alteration.

Onesenses from the routine and unsophisticated way in which many of the affidavits were prepared (utilizing the RCMP standard forms),with little care as to the proper numbering and marking of the exhibits, that once this request for documents was received at a financialinstitution that task was assigned to an individual to make copies, and then that individual was brought before a staff (or other) lawyer tocommission or notarize the affidavit. [47] This routine approach in response to the RCMP information request, both collection and formalization in an affidavit withnotarization, in a perverse sense gives these documents their greater credibility.

These materials were simply taken (often from closedfiles) at the source financial institution, brokerage house, or law firm, and then photocopied in a way that was intended to cooperate withthe RCMP’s request but not necessarily consume the time of a high level manager. D. Legal Analysis – Admission of Documents 1. Overview of the Law of Documentary Evidence [48] The documents the Crown seeks to admit raise numerous legal, policy and practical concerns.

The Court must balance theessential importance that the two Accused receive a fair trial based on properly admissible evidence and in respect of their Charter rights,against the reality that this case is based, in large part, on an extensive and aging paper trail. The age of the paper trail, modern businesspractices, and changes in the financial institutions lead to many situations where the documents do not fit squarely into one of theexisting exceptions to the hearsay rule based on the existing legal literature. Where, then, does the admission of these documents affectthe fairness of the trial?

Reasonable people will see this issue differently. An unduly rigid reliance on the statutory and common lawexceptions could lead to the exclusion of relevant documents, while an overly incautious approach might lead to the introduction ofdocuments that fairness dictates should be excluded. The goal is a pragmatic, realistic, and functional approach, which neverthelesssafeguards the fair trial rights of the accused. [49] As this judgment explores the scope of the role of documentary evidence, I review how in Canada the courts have approachedthe general prohibition against admission of hearsay evidence. a.

The Evolving Approach to Hearsay Evidence [50] In R v Smith, (SCC), [1992] 2 SCR 915 at 924, 94 DLR (4th) 590, Chief Justice Lamer endorsed thedefinition of hearsay provided in Subramaniam v. Public Prosecutor, [1956] 1 WLR 965 (UK PC), at p 970: Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsayand inadmissible when the object of the evidence is to establish the truth of what is contained in the statement.

It is not hearsay and isadmissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. ... See also R v Khelawon, 2006 SCC 57 at paras 56-59, [2006] 2 SCR 787. [51] Lamer CJ continues at 924-925: This statement of the "hearsay rule" is a useful illustration of the circumstances in which statements made by persons who are not calledas witnesses have traditionally been considered inadmissible. When such statements are introduced to prove the truth of their contents,they have generally been considered to be inadmissible.

However, when introduced simply to prove that they were made, they havetraditionally been regarded as admissible, either under an "exception" to the hearsay rule, or more correctly from an analytical point ofview because they fall outside the definition of hearsay.

What is important is that the evidentiary dangers traditionally associated withstatements by persons not called as witnesses -- principally, the unavailability of the declarant for cross-examination -- are not present, orare present to a far less significant degree, when the relevance of such statements lies simply in the fact that they were made. [Emphasisadded.] [52] The same is true for documents. A document is traditionally inadmissible for the truth of its contents, unless the person whocreated that document testifies as a witness: R v Khelawon, at para 58.

This traditional ‘strict’ approach to hearsay has always been thesubject of exceptions, and in Canada over the last several decades those exceptions have coalesced into a single overall principle -hearsay evidence may be admitted when it is necessary and reliable. [53] A useful starting point in the understanding of this evolution is the dissenting judgment of Justice L’Heureux-Dubé in R. v.Starr, 2000 SCC 40, [2000] 2 SCR 144, where at paras. 31-35 she reviews how Supreme Court jurisprudence has progressively reformedthe global prohibition against hearsay towards a functional and principled test for admission of hearsay evidence; whether the hearsayevidence is necessary, reliable, and more probative than prejudicial.

Justice L’Heureux-Dubé at para. 31 summaries the basic characterof this shift:

... The rule against hearsay is “founded on a lack of faith in the capacity of the trier of fact properly to evaluate evidence of a statement”:... The modern trend to reform the rules of evidence in general and the hearsay rules in particular constitutes a sharp break from thisdistrust... We have recognized these changes, commenting ... that “the recent trend in courts has been to remove barriers to the truth-seekingprocess”.

This Court has taken a flexible approach to the rules of evidence, “reflect[ing] a keen sensibility to the need to receiveevidence which has real probative force in the absence of overriding countervailing considerations” ...

In the specific context of hearsayevidence, Lamer C.J. ... explained that “[t]he movement towards a flexible approach was motivated by the realization that, as a generalrule, reliable evidence ought not to be excluded simply because it cannot be tested by cross-examination.” Our motivation in reformingthe rules of evidence has been “a genuine attempt to bring the relevant and probative evidence before the trier of fact in order to fosterthe search for truth” ... [Emphasis added.] She then proceeds at para. 32 to comment on how the first step in the modern approach to hearsay flows from the judgment of Ares vVenner, (SCC), [1970] SCR 608, 14 DLR (3d) 4, where the court: ... refused to follow the House of Lords’ position that the hearsay rule was frozen in time subject to reform only through the initiative ofParliament ...

In Ares, at p. 624, we adopted the minority position of Lord Donovan in Myers that “[t]he common law is moulded by thejudges and it is still their province to adapt it from time to time so as to make it serve the interests of those it binds.” ... [Emphasisadded.] See also R v Smith, R v Khelawon, at para 59. [54] Similarly, in R v Seaboyer; R v Gayme, (SCC), [1991] 2 SCR 577 at para 65, 83 DLR (4th) 193 McLachlin J(as she then was) discussed how the rules of evidence are globally designed on a basis that any evidence may be appropriate at trial, but“… the evidence excluded is likely to do more harm than good to the trial process.”: para. 64. [55] She continues at para. 65: Consider the hearsay rule.

At one time it was seen as an absolute prohibition subject to a number of limited, rigidly defined exceptions.… But in more recent times, this inflexible approach has been replaced by an approach which allows more discretion to the trial judge.Thus this Court in Ares v. Venner, (SCC), [1970] S.C.R. 608, held that old categories are no longer exclusive and thathearsay evidence which does not fall within one of the traditional exceptions may be received if it is (

a) necessary, and (

b) reliable. …The reason for the change was simple. The judges perceived that the rules of evidence were unfairly restricting the right to bring relevantand helpful evidence before the court, thereby undermining the ability of the court to find the truth and do justice.

So the courtsbroadened the rule to conform to their sense of justice by permitting judges convinced of the reliability and trustworthiness of theevidence to admit it despite its failure to conform to the traditional exceptions to the hearsay rule. [Emphasis added.] [56] The Supreme Court of Canada has also been clear that this approach to the admission or exclusion of hearsay evidence doesnot flow from a constitutional principle that hearsay evidence is inadmissible.

L’Heureux-Dubé in R v L (DO), (SCC),[1993] 4 SCR 419 at para 51, 85 CCC (3d) 289 (analysis and result on hearsay concurred by Lamer C.J.) observed The respondent submits that s. 715.1 of the Criminal Code infringes the rule against hearsay and, consequently, infringes the principlesof fundamental justice. However, as legal history dictates, even an exception to the rule regarding hearsay is not really an exceptionaloccurrence.

In fact, it has been observed that exceptions to the hearsay rule are "as "fundamental" as the rule" ... [57] Nor is hearsay evidence inadmissible simply because it is not the only available alternative. In the majority decision in R vB(KG); R v KGB, (SCC), [1993] 1 SCR 740 at para 107, 148 NR 241, Chief Justice Lamer observed: ... in shaping the law of hearsay in Canada, this Court has not treated necessity in the sense of unavailability as the sine qua non ofadmissibility. ...

While the decisions in Khan and Smith established that Canadian courts will no longer carve out categorical"exceptions", the new approach shares the same principled basis as the existing exceptions. Rather, what is crucial is that the hearsay evidence meets the common standard for admission: the hearsay evidence is relevant, reliable,and more probative than prejudicial. As Justice McLachlin had observed, hearsay evidence is excluded when it causes more harm thangood. b.

Hearsay and Documents [58] As an anchor to avoid inappropriate and unprincipled admissibility it is useful to start with first principles. [59] The party who wishes to introduce documents must set an appropriate and proper stage and standard for their admissibility. Itis now quite common for business records and business documents to be introduced as exceptions to the hearsay rule.

In J DouglasEwart, Documentary Evidence in Canada (Carswell Legal Publication, 1984) [“Ewart”] at p 12-13 the authors state the rule as All documents, if offered in evidence as proof of the truth of their contents are hearsay ... it follows from this that if a document isoffered as proof of the truth of its contents, it is only admissible pursuant to an exception to the hearsay rule. [60] Many reasons have been cited for the practical approach taken by the courts while admitting documents as exceptions to thehearsay rule or as part of the business records of an organization.

The list is neither exhaustive nor capped. As Ewert points out at p 12: Care must be taken to avoid confusing the existence of established standards for admitting documents into evidence as exceptions to thehearsay rule, with the perception that that the exceptions themselves have been finally and definitively determined ... the Supreme Courtof Canada has expressly rejected that view in favor of the opinion that courts in Canada are free to develop new exceptions. (Ares v.Venner (SCC), 1970 S.C.R. 608

[ 61 ] Documents are admissible for the truth of their contents on a number of bases, including: 1. to reduce the length of trials, 2. to reach the heart of the dispute more quickly, 3. to prevent inconvenience to members of the public and business institutions, 4. practical necessity, and 5. to enhance the likelihood of getting at the truth. [ 62 ] These are the same reasons why statutes permit admission of certain documents by affidavit, which ultimately revolve on the consideration of business time, and that it is desirable to remove the necessity for business witnesses to come to court.

As policy, there is no point to having those witnesses present when they cannot significantly assist the finder of fact evaluate the relevance and reliability of the business document materials. [ 63 ] There nevertheless must be a legal basis for exceptions to the hearsay rule and these exceptions have ‘many fathers’, including: 1. provincial legislation, 2. the CEA , 3. historic common law exceptions to the prohibition on documentary hearsay, and 4. the principled general approach to admission of hearsay documents. [ 64 ] It is crucial that a court not lose sight of the fact the document may be admissible for a purpose other than to prove the truthfulness of its content .

Some documents are admitted because it is only the existence of the document or its receipt, not the proof of its content that is the important factual issue before the court. [ 65 ] Taking a scenario from this action, a mortgage application submitted to a financial institution by prospective borrowers may contain exaggerations and mistruths. This does not detract from the fact that the financial institution received that application and placed the application on its file. In some cases that fact alone – delivery, receipt, and possession - is what is important.

Documents sought to be introduced as part of a file from a business to show receipt alone may, in fact, be admissible from a procedural point of view with appropriate affidavits even where they do not strictly constitute an exception to the hearsay rule, nor are they accurately an exception to the hearsay rule. From this perspective it does not matter what a document says . Rather, the crucial fact is simply that the document exists .

The document is admitted - not as an exception to the hearsay rule but as direct evidence. [ 66 ] I will now discuss the general principled approach to admission of hearsay documentary evidence. This flows from the Supreme Court of Canada Ares v Venner decision - the first step towards the modern approach to documentary hearsay evidence, and a shift from historic category-based to the modern functional admission of hearsay evidence ‘that does more good than harm’. c. The Ares v Venner General Principle to Admission of Documentary Hearsay Evidence [ 67 ] Ares v Venner was a medical malpractice proceeding.

The issue relevant to hearsay was a number of hospital records that had been produced during treatment of the plaintiff. At trial the judge had admitted those documents for the truth of their contents, even though the nurses who had prepared those notes were available as witnesses.

On appeal the Alberta Court of Appeal ordered a re-trial on the basis the notes should not have been admitted as a superior alternative evidence source was possible – the nurses themselves. [ 68 ] Hall J. confirmed the trial judge had been correct to admit the documentary evidence as admissible for the truth of its contents, and followed a minority decision from the House of Lords judgment of Myers v Director of Public Prosecutions , [1964] 2 All ER 881 .

The nurses records were admissible because: 1. the document records were created by persons who had personal knowledge of the information in those records, 2. the records were made at or close to the time of the information recorded, and 3. the nurses had a duty to record information in an accurate manner. [ 69 ] Subsequent court judgments have simplified this rule to a principled approach: that the documentary evidence is necessary and reliable.

As Justice Charron observed in R v Khelawon , at para 62 : One way is to show that there is no real concern about whether the statement is true or not because of the circumstances in which it came about. Common sense dictates that if we can put sufficient trust in the truth and accuracy of the statement, it should be considered by the fact finder regardless of its hearsay form . Wigmore explained it this way: ...

There are many situations in which it can be easily seen that such a required test [i.e., cross-examination] would add little as a security, because its purposes had been already substantially accomplished . If a statement has been made under such circumstances that even a sceptical caution would look upon it as trustworthy (in the ordinary instance), in a high degree of probability, it would be pedantic to insist on a test whose chief object is already secured . [s. 1420, p. 154] [Emphasis added.]

[70] The modern approach to the admission of necessary and reliable documentary hearsay evidence is reviewed by the AlbertaCourt of Appeal in R v O’Neil, 2012 ABCA 162, 524 AR 351, leave denied [2012] SCCA No 317 at paras 40-46. In this case thequestion was whether the contents of a database could be relied upon for the truth of their contents. The court considered these to be“business records”.

The Court cites R v Monkhouse (1987), 1987 ABCA 227 , 83 AR 62, 56 Alta LR (2d) 97 (Alta CA). [71] Chief Justice Laycock in R v Monkhouse concludes: [hearsay records] can be admitted only if they have come into existence under circumstances which make them inherently trustworthy.Where an established system in a business or other organization produces records which are regarded as reliable and customarilyaccepted by those affected by them, they should be admitted as prima facie evidence. [72] The database evidence was admissible in R v O’Neil because it met that general criteria. [73] My conclusion is that the modern context the Ares v Venner rule on the admission of reliable and necessary documentaryevidence should be cast broadly, to better reflect the modern nature of documentary evidence.

Current technology and business methodsmean that an unprecedented degree of data is recorded and tracked, much of it by automated processes. This means that the Ares vVenner rule has become more and more relevant, particularly in legal actions, such as this one, where much of the evidence isnecessarily captured primarily in the documentary record.

It is simply a fact of modern life that in situations such as this that witnesses,after they review financial, logistic, scientific, medical, engineering, information technology and many other kinds of records, can saylittle more than they have no personal knowledge or memory of these materials, but at best these documents do not appear incongruouswhen evaluated for the truth of their contents, and their materials arise from a generally trusted (i.e. reliable) data source. [74] This is a functional test, in my view, supported by R v O’Neil. [75] This version of the Ares v Venner criteria is not revolutionary, but rather a simple and pragmatic description of a process thatwas recognized over sixty years ago in Myers v Director of Public Prosecutions by Lord Pearce: ...

The necessity created by mass production and modern business they could not then foresee. They did not provide for the anonymity ofmodern industrial records and the difficulty of tracing those who made them. The individuality of persons in a large factory or businessmay be difficult or impossible to discover. They do many repetitive and almost automatic tasks concerning which no memory exists.

Yettheir composite efforts make machines and records whose complexity, efficiency, and accuracy are beyond anything imaginable in 1886.In my view the anonymity of the recorder or the impossibility of tracing him create as valid a necessity as does his death for allowing hisbusiness records to be admitted. ... [76] Today government and private bodies collect, record, and administer an unprecedented volume of information. Thatinformation relates to almost any aspect of daily life. Unlike a century ago, that information may be retained in an accessible form fordecades.

Information is typically secured by complex procedures to ensure that data is not lost, corrupted, or manipulated. Often thatinformation is acquired without the participation of the human hand. In this context much documentary evidence will be prima faciereliable, and should be admitted on that basis. Fanciful “what if’s?” or a demand that the courts prefer to rely on tenuous personalknowledge should not be used to frustrate the acquisition of evidence that is ‘more helpful than harmful’. [77] This is in no way to negate the right of defence counsel to test the reliability of documentary evidence.

I simply observe that achallenge of that kind should flow from relevant and plausible scenarios, rather than ‘fishing expeditions’ and pure conjecture. d. Threshold vs. Ultimate Reliability [78] Last, I stress it is also important to differentiate between threshold reliability for admission as evidence, and ultimatereliability, where a document is actually used to prove an essential element of the offense beyond a reasonable doubt. Thresholdreliability is a lower standard than ultimate reliability. This distinction is discussed in R v Khelawon, at paras 2-3: [2] ...

The trial judge acts as a gatekeeper in making this preliminary assessment of the "threshold reliability" of the hearsay statementand leaves the ultimate determination of its worth to the fact finder. [3] The distinction between threshold and ultimate reliability reflects the important difference between admission and reliance.Admissibility is determined by the trial judge based on the governing rules of evidence. Whether the evidence is relied upon to decidethe issues in the case is a matter reserved for the ultimate trier of fact to decide in the context of the entirety of the evidence. ...

Indetermining the question of threshold reliability, the trial judge must be mindful that hearsay evidence is presumptively inadmissible.The trial judge's function is to guard against the admission of hearsay evidence which is unnecessary in the context of the issue to bedecided, or the reliability of which is neither readily apparent from the trustworthiness of its contents, nor capable of being meaningfullytested by the ultimate trier of fact.

In the context of a criminal case, the accused's inability to test the evidence may impact on the fairnessof the trial, thereby giving the rule a constitutional dimension. Concerns over trial fairness not only permeate the decision onadmissibility, but also inform the residual discretion of the trial judge to exclude the evidence even if necessity and reliability can beshown. [79] Also at para 2, the principled exception to the hearsay rule is discussed: ... the extent to which hearsay evidence will present difficulties in assessing its worth obviously varies with the context.

In somecircumstances, the evidence presents minimal dangers and its exclusion, rather than its admission, would impede accurate fact finding.Hence, over time a number of exceptions to the rule were created by the courts. Just as traditional exceptions to the exclusionary rulewere largely crafted around those circumstances where the dangers of receiving the evidence were sufficiently alleviated, so too must befounded the overarching principled exception to hearsay.

When it is necessary to resort to evidence in this form, a hearsay statement maybe admitted if, because of the way in which it came about, its contents are trustworthy, or if circumstances permit the ultimate trier offact to sufficiently assess its worth. If the proponent of the evidence cannot meet the twin criteria of necessity and reliability, the general

exclusionary rule prevails. ... [ 80 ] The court stresses the distinction between evidence that is admissible , and evidence that has a probative weight on the final outcome: 50 As stated earlier, the trial judge only decides whether hearsay evidence is admissible. Whether the hearsay statement will or will not be ultimately relied upon in deciding the issues in the case is a matter for the trier of fact to determine at the conclusion of the trial based on a consideration of the statement in the context of the entirety of the evidence.

It is important that the trier of fact's domain not be encroached upon at the admissibility stage. ... If the judge sits without a jury, it is equally important that he or she not prejudge the ultimate reliability of the evidence before having heard all of the evidence in the case. Hence, a distinction must be made between "ultimate reliability" and "threshold reliability". Only the latter is inquired into on the admissibility voir dire. 55 ... the relevant factors to be considered on an admissibility inquiry cannot invariably be categorized as relating either to threshold or ultimate reliability.

Rather, the relevance of any particular factor will depend on the particular dangers arising from the hearsay nature of the statement and the available means, if any, of overcoming them. ... [ 81 ] Hearsay is admissible when it is inherently reliable or it can be tested by other means, such as cross-examination (para. 64).

Justice Charron then stresses as para. 65, that on the admissibility stage of a criminal evidence analysis these two paths to admission operate in a somewhat different manner: ... concerns about reliability are based on considerations other than the party's inability to test the accuracy of his or her own statement or that of his or her co-conspirators. Hence, the criteria for admissibility are not established in the same way.

However, in cases where the exclusionary rule is based on the usual hearsay dangers, this distinction between the two principal ways of satisfying the reliability requirement, although not by any means one that creates mutually exclusive categories, may assist in identifying what factors need to be considered on the admissibility inquiry. [ 82 ] The court stresses a functional approach to the threshold admissibility test (para. 93): ... Relevant factors should not be categorized in terms of threshold and ultimate reliability.

Rather, the court should adopt a more functional approach as discussed above and focus on the particular dangers raised by the hearsay evidence sought to be introduced and on those attributes or circumstances relied upon by the proponent to overcome those dangers.

In addition, the trial judge must remain mindful of the limited role that he or she plays in determining admissibility -- it is crucial to the integrity of the fact-finding process that the question of ultimate reliability not be pre-determined on the admissibility voir dire. [ 83 ] Further, a trial may be fair even though evidence is admitted, but must be excluded in the final determination of guilt or innocence. As Justice Charron reviews at para. 47-49, trial fairness not only implicates the Charter rights of an accused person, but broader social interests. 48 ...

Trial fairness embraces more than the rights of the accused. While it undoubtedly includes the right to make full answer and defence, the fairness of the trial must also be assessed in the light of broader societal concerns: ... In the context of an admissibility inquiry, society's interest in having the trial process arrive at the truth is one such concern. 49 The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criterion of necessity is founded on society's interest in getting at the truth .

Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process . The evidence, although needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it. ...

However, because trial fairness may encompass factors beyond the strict inquiry into necessity and reliability, even if the two criteria are met, the trial judge has the discretion to exclude hearsay evidence where its probative value is outweighed by its prejudicial effect . Thus, the court’s ongoing scrutiny of trial evidence adds the safeguard that threshold reliable documentary hearsay evidence, if admitted, will not distort the criminal legal process. e.

Application of the General Hearsay Principle to Documentary Evidence in this Proceeding [ 84 ] Much of the evidence of the alleged fraud comes from financial records. In many cases financial records are being admitted here where deponents of the affidavits may not even be available and would clearly have no direct knowledge of the information.

It is also clear that as the financial business changes the institutions rely less and less on their own internally created documents and more and more on documents that are supplied by third parties. [ 85 ] If one were to take a restrictive perspective on the admission of hearsay these facts could, arguably, attack the reliability of these materials. After all, how can they be tested? My perspective is that approach fails to appreciate the flexible and functional operation of the general principle for the admission of hearsay.

One cannot exclude the importance of common sense in a ruling of this nature. [ 86 ] Nor can one remain uninformed about the rapidly changing business landscape since the fundamental statutory exceptions to the hearsay rule for business and banking records ( CEA , ss 29-30) were enacted.

I intend in this judgment to use a generous helping of common sense in two ways: 1. to interpret those statutory exceptions to the hearsay prohibition in a manner that reflects the common law principles that they codify, and 2. if CEA , ss 29-30 do not have the elasticity to allow business records to be admitted through that principled

interpretation of the

legislation, then admission of hearsay evidence through the common law principled approach and the twin criteria of necessity andreliability will provide a broader but common sense anchor to evaluate the admissibility of these materials. 2.

Detailed Legal Analysis by Document Group [87] I will now proceed to review the individual document groups and their potential admission as hearsay document evidence.However, in doing so I will take into account that the Crown seeks to use all opportunities available to admit this hearsay documentaryevidence, and utilizes all opportunity available to it to have these items, mostly routine financial institution, law firm or mortgage brokerfiles, admitted either as exhibits or as exhibits to be identified and discussed later by other witnesses.

The Defense understood thismultifaceted approach and argued the case accordingly. [88] This is a well-established approach in law to hearsay evidence. The Crown does not have to elect to admit evidence by a singleexception but may argue a multifaceted approach.

In R v Smith, 2011 ABCA 136 at paras 26-30, 510 AR 37, leave denied [2011] SCCANo 314, Justice Bielby reviewed how hearsay evidence may be admitted under any alternative means. [89] As Justice Charron observed in R v Khelawon, at para 42, this is a necessary consequence of the manner in which hearsayevidence passes through a number of specific vs. principled legal rules that were investigated in R v Starr and more recently restated in Rv Mapara, 2005 SCC 23 at para 15, [2005] 1 SCR 358: (

a) Hearsay evidence is presumptively inadmissible unless it falls under an exception to the hearsay rule. The traditional exceptions tothe hearsay rule remain presumptively in place. (

b) A hearsay exception can be challenged to determine whether it is supported by indicia of necessity and reliability, required by theprincipled approach. The exception can be modified as necessary to bring it into compliance. (

c) In "rare cases", evidence falling within an existing exception may be excluded because the indicia of necessity and reliability arelacking in the particular circumstances of the case. (

d) If hearsay evidence does not fall under a hearsay exception, it may still be admitted if indicia of reliability and necessity areestablished on a voir dire. [90] Therefore, if the trial judge determines that the evidence falls within one of the traditional common law exceptions, thisfinding is conclusive and the evidence is ruled admissible, unless, in a rare case, the exception itself is challenged as described in boththose decisions. a.

Interpretation of Legislation [91] Many of the document groups that will be reviewed are arguably admissible on the basis of exceptions to the prohibition onhearsay evidence that were created by legislation. It is therefore useful to review the legal principles that guide the

interpretation oflegislation. [92] The standard approach is well established. In Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 SCR 27, 154 DLR (4th) 193, Justice Iacobucci endorsed the approach identified in Elmer Driedger, Construction of Statutes, 2nd ed (Toronto:Buttersworth, 1982) at p 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [93] This

summary has been often cited by approval at the Supreme Court of Canada in the context of criminal cases, for example:R v Araujo, 2000 SCC 65 at para 62, [2000] 2 SCR 992; R v Sharpe, 2001 SCC 2, [2001] 1 SCR 45, and most recently in R v ADH,2013 SCC 28 at para 19. b. Group A Documents: Land Titles Office Records [94] I have concluded that all of the LTO Records are admissible as a consequence of provisions in the Land Titles Act andGovernment Organization Act: Land Titles Act: 13 Where records are required to be kept under this Act, the Registrar may keep those records (

a) in written form, (

b) by any graphic, photographic, magnetic or electronic means, or (

c) by any other means or combination of means, as the Registrar considers appropriate. ... 201 A reproduction of an instrument or caveat

(

a) that is made from an original or duplicate record that is required to be kept by the Registrar, and (

b) that is certified by the Registrar as being an accurate reproduction of the instrument or caveat, is admissible in evidence in any court or proceeding in the same manner as if it were an original. Government Organization Act :

Schedule 12 9(1) Where an enactment provides that a statutory function is to be carried out by a statutory officer and the carrying out of that statutory function involves the production, creation or issuance of a document containing the signature of the statutory officer, that document is deemed to have been signed by the statutory officer if the document (

a) sets out the signature of the person who is or was the statutory officer, or (

b) sets out the seal of office of the statutory officer.

(2) For the purposes of subsection (1)(b), the Minister may approve the form of the seal of office to be used by a statutory officer.

(3) Any signature or seal referred to in this

section may be reproduced by engraving, lithography or printing or by any electronic or mechanical or other method of reproduction and when so reproduced has the same force and effect as if it had been manually signed or affixed. [ 95 ] This conclusion applies to both: 1. the certificates of ownership with electronic government seal, and 2. the filed mortgages, transfers, and foreclosure orders, as well other encumbrances that lead to the creation and content of those certificates of ownership. I had noted earlier that

Section 40 CEA makes Provincial legislation governing the admissibility of documents applicable in federal prosecutions. [ 96 ] If I am incorrect, and these legislative provisions do not provide a categorical exception to the prohibition against admission of hearsay documents, then I have other reasons for concluding that the LTO records are admissible: these documents are reliable and necessary. [ 97 ] The reliability and practical necessity of this documentary evidence was made clear by Mr. Woollard who gave evidence and pointed out the strong commercial reliance on these documents.

While it is technically true that the mortgages and transfers which give rise to the creation of a LTO title document are not, nor cannot be placed under LTO seal, it is important to note that they are incorporated by reference into a document which the LTO does issue under virtual electronic seal. [ 98 ] In my respectful view to exclude one while admitting the other could lead to court assisted misinformation.

It is reasonable for a user of the LTO to order copies of the documents which provide the foundation for the assertion by the LTO on the state of title or ownership of land interests in Alberta, which are then expressed electronically under seal. I am prepared to go further and conclude, although it is not necessary to do so, that the ‘supporting’ documents are incorporated by reference into an LTO title document. That makes those additional materials admissible as evidence by Land Titles Act , s 201. [ 99 ] There is no need to access and copy original paper documentation filed at the LTO.

The electronic versions are reliable. In Alberta today the only way you can obtain an LTO document is by one of two routes. [ 100 ] A person can either to go to one of the two Land Titles Offices and order the item, whereupon the staff will print it from the same electronic records the public has access to and sell it to a customer for a fee. [ 101 ] The other approach is to do what RCMP Sgt.

Schmidt did - he opened a Land Titles Office account and used the publicly available database search engine to order virtual titles plus copies of the scanned documents (usually transfers, mortgages, and foreclosure orders) upon which that virtual title had been created. He then printed them off the electronic database, compared them to the online record, and certified under oath that they were accurate. [ 102 ] Mr. Woollard, the representative of the LTO, also spent time at the courthouse and reviewed each of the documents.

That last step and the time it consumed for a government manager of deputy minister seniority was simply unnecessary, and precisely the kind of wasteful allocation of resources that has long driven the Ares v Venner legal principle that business documents are presumptively admissible. [ 103 ] In my respectful view, an electronic version of a LTO document recovered by either LTO staff or a person who uses the LTO database search engine (described as a “SPIN 2” spatial information system record), is presumptively admissible so long as the person who ordered and printed the document is available to indicate the procedure that was followed to obtain that document. [ 104 ] The courts are greatly congested.

Numerous citizens cannot get their day in court due to time limitations. I suggest, with respect to those who would hold a contrary view, that the time for LTO records to be challenged on a preliminary admissibility basis has passed. This is not to say that from time to time a LTO record will be proven to have been fraudulent but that limited and infrequent risk cannot set the stage for admissibility in routine transactions. In any event that would go to the issue of ultimate reliability, not the threshold analysis required at first instance.

[ 105 ] I stress that here there is no allegation that the Accused committed a fraud on the LTO system. The LTO system is not under attack in this litigation. The alleged misconduct in this trial is that financial institutions were defrauded by material dishonesty in the mortgage applications and supporting paper work that those financial institutions received. That deception then led to the mortgage approval and subsequent mortgage funding. There is no suggestion the financial institution lost money here because of a fraud or manipulation of land titles documentation.

Against the backdrop of what it is that the Crown is seeking to prove, an attack on the LTO, the type of searches used, and the resulting documentary output is simply inappropriate. This objection represents an overly formalistic and archaic approach to the law of evidence. [ 106 ] I therefore conclude all the LTO records of both types are fully admissible and inferences from them may be drawn. c. Group B Documents: Alberta Corporate Records [ 107 ] It is unnecessary in this judgment to spend much time on the corporate records.

Their admission as exhibits was not opposed; however I conclude these materials should be addressed by the same statutory reasoning described above in relation to LTO records. [ 108 ] These documents are subject to the following provisions of the Alberta Business Corporations Act , RSA 2000, c B-9: 259(1) When this Act requires or authorizes the Registrar to issue a certificate or to certify any fact, the certificate must be signed by the Registrar or by an individual authorized by the Registrar.

(2) Except in a proceeding under

section 214 to dissolve a corporation, a certificate referred to in subsection (1) or a certified copy of it, when introduced as evidence in any civil, criminal or administrative action or proceeding, is conclusive proof of the facts so certified without proof of the signature or official character of the person appearing to have signed the certificate . ... 272(1) Records required by this Act to be prepared and maintained by the Registrar may be in bound or loose-leaf form or in a photographic film form, or may be entered or recorded by any system of mechanical or electronic data processing or by any other information storage device that is capable of reproducing any required information in legible written form within a reasonable time.

(2) The records referred to in subsection (1) shall be kept in accordance with the regulations.

(3) If records maintained by the Registrar are prepared and maintained other than in written form, (

a) the Registrar shall furnish any copy required to be furnished under section 271(2) in legible written form, and (

b) a reproduction of the text of those records, if it is certified by the Registrar, is admissible in evidence to the same extent as the original written records would have been . [Emphasis added.] [ 109 ] I therefore conclude that legislation authorizes the corporate records as admissible without more, and this includes both: 1. the records for which the Corporate Registry can issue a certificate, such as the formation of a company, and 2. the underlying documents or data submitted in support of that corporate formation. [ 110 ] Finally, a document like a procedure card, listing all of the documents that have been entered on a specific corporate file, is admissible as simply being a

summary of those documents which are admissible in their own right. d. Admission of Records utilizing the CEA [ 111 ] The Crown seeks to admit certain documents under CEA , s 29: 29(1) Subject to this section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions and accounts therein recorded .

(2) A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this

section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a true copy of it, and such proof may be given by any person employed by the financial institution who has knowledge of the book or record or the manager or accountant of the financial institution, and may be given orally or by affidavit sworn before any commissioner or other person authorized to take affidavits . ...

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

(5) A financial institution or officer of a financial institution is not in any legal proceedings to which the financial institution is not a party compellable to produce any book or record, the contents of which can be proved under this section, or to appear as a witness to prove the matters, transactions and accounts therein recorded unless by order of the court made for special cause.

...

(9) In this section, ... “financial institution” means the Bank of Canada, the Business Development Bank of Canada and any institution that accepts in Canadadeposits of money from its members or the public, and includes a branch, agency or office of any of those Banks or institutions; ... [Emphasis added.] [112] Parliament has stressed the high standard of reliability imputed to the records of financial institutions; they are prima facie proofof the transactions they record: R v McMullen (1979), (ON CA), 25 OR (2d) 301, 100 DLR (3d) 671 (Ont CA); R vBest (1978), (BC CA), 43 CCC (2d) 236, 2 WCB 489 (BCCA). [113] It is also useful to at this point review the text of CEA, s 30: 30.

(1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinarycourse of business that contains information in respect of that matter is admissible in evidence under this

section in the legal proceedingon production of the record.

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

(3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the recordaccompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce therecord 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 theperson 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 eachdocument is (

a) an affidavit of each of those persons sworn before a commissioner or other person authorized to take affidavits; or ...

(6) For the purpose of determining whether any provision of this

section applies, or for the purpose of determining the probative value, ifany, to be given to information contained in any record admitted in evidence under this section, the court may, on production of anyrecord, examine the record, admit any evidence in respect thereof given orally or by affidavit including evidence as to the circumstancesin which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from theform or content of the record. ...

(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) a record made in the course of an investigation or inquiry, (ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding, (iii) a record in respect of the production of which any privilege exists and is claimed, or ... (

b) any record the production of which would be contrary to public policy; or ...

(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 anymatter; or (

b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.

(12) In this section, “business” means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewherewhether 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 orauthority performing a function of government;

... “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) . [Emphasis added.] [ 114 ] CEA , s 30 casts a broader net, covering business records from practically any kind of institution. Records are literally any media on which information may be stored. Documents admitted under s 30 are prima facie evidence for the truth of their contents: R v Smith , at paras 24, 46. [ 115 ] CEA , ss. 29- 30 are statutory provisio

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