R v Adair, 2021 ABQB 712

Court of Queen’s Bench of Alberta Citation: R v Adair, 2021 ABQB 712 Date: 20210907 Docket: 190181776Q1 Registry: Edmonton Between: Her Majesty the Queen - and - Douglas Clayton Adair Accused Corrected judgment: A corrigendum was issued on September 14, 2021; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice Robert A.

Graesser _______________________________________________________ Introduction [ 1 ] In an oral decision given on May 3, 2021, I convicted Douglas Clayton Adair of a number of offences following a week-long judge alone trial.

At the end of my oral reasons, I invited further argument from counsel on whether I should look at the Court files, following the discussion in R v Truong , 2008 BCSC 1151 . [ 2 ] I concluded, following that discussion, that I could and should look at the Court files to determine if there was any further information on them that would assist in determining whether the recognizance was still in effect on the dates charged.

Counsel indicated that they were content to have me review the files on my own, rather than assemble them and jointly review the files. [ 3 ] I thus reserved on Counts 13, 14, and 15 so that I could review the relevant files and come to a decision.

[ 4 ] Count 13 alleges that between January 5 and January 22, 2019, Mr. Adair breached a recognizance prohibiting him from behind the wheel of any motor vehicle. [ 5 ] Count14 alleges that on January 29, 2019, Mr. Adair breached his recognizance on January 29 th to not possess or consume any non-medically prescribed drugs. [ 6 ] Count 15 alleges that on January 31, 2019, Mr. Adair breached his recognizance on prohibiting him from being in possession of identity documents not in his own name. Defence submissions [ 7 ] Mr. Smith, counsel for Mr.

Adair, argues that the Crown did not prove beyond a reasonable doubt that the recognizance was still in effect on January 31, 2019 when Mr. Adair was charged with these and other offences. [ 8 ] He referred me to Truong in support of his argument. I concluded at the end of his submissions that it was necessary for me to review the Court file in which the recognizance was given to secure Mr. Adair’s release ( 180151326P1) . Analysis [ 9 ] Mr.

Adair was charged with a number of offences on February 4, 2018, including possession of a stolen motor vehicle, driving while disqualified, and possession of fake identity documents. Following an appearance on February 6, 2018, Mr. Adair was released on a recognizance signed by him on February 6. I do not find it significant that there is no affidavit of execution nor any evidence from a witness as to him signing the document. [ 10 ] It is sufficient in my view that there be a signature above “accused signature” and another signature above “Justice of the Peace”.

The absence of other evidence of execution does not create any reasonable doubt as to it being the accused, Mr. Adair, who signed the recognizance and took the benefit of it by being released from custody. [ 11 ] The conditions in the recognizance were that Mr. Adair: 1. Report to his bail officer within 2 days; 2. Cary a copy of the release conditions at all times; 3. Not be in a motor vehicle unless the registered owner is present; 4. Not possess identity documents other than in his own name; 5. Not possess non-medically prescribed drugs; and 6.

Notify his bail supervisor or the Court of any change of address or employment. [ 12 ] The evidence adduced by the Crown on this count was a certified copy of the recognizance and accompanying endorsements. These were marked as Exhibit 31. [ 13 ] The file shows that the matter was adjourned to February 21, 2018 for the purposes of disclosure. It was then adjourned to March 14, 2018 for election and plea. [ 14 ] On March 14, the matter was further adjourned to April 4 for election and plea.

On April 4, it was again adjourned to April 23, 2018 at which time it was set for trial in Provincial Court on October 26, 2018. There are no notations regarding release conditions. [ 15 ] On October 26, 2018, Mr. Adair re-elected trial by Queen’s Bench Judge alone. He waived the preliminary inquiry, and was directed to appear in Queen’s Bench on December 14, 2018 for arraignment. There is no notation about release conditions. [ 16 ] The notation from Queen’s Bench for December 14, 2018 shows Mr. Attia as designated counsel, and the matter was set for trial in Queen’s Bench on November 8, 2019.

It was noted that Mr. Adair was on bail. [ 17 ] There is no suggestion on the Queen’s Bench file that there were any changes to the release conditions between October 26 and December 14, 2018. In the late spring, there is a notation about a May 25, 2019 bail application, and there is some uncertainty as to whether that ever proceeded. That was, of course, long after Mr.

Adair had been arrested and charged with the offences tried before me. [ 18 ] There is nothing on the Court file relating to any of 180151326P1, Q1, Q2 or Q3 suggesting that the recognizance was not in full force and effect between February 6, 2018 and January 31, 2019 when Mr. Adair was arrested and charged. [ 19 ] Indeed, the file does not show any further appearances in Queen’s Bench until November 8, 2019.

Some of the counts had been remitted back to Provincial Court in August 2019, another count was dealt with on November 8, 2019, and a stay was entered on June 26, 2020 regarding the remaining counts. [ 20 ] In Truong , Mr. Truong had been convicted by a British Columbia Provincial Court judge of breaching the terms of his recognizance. [ 21 ] To prove the charge, the Crown filed a certified copy of the recognizance. Defence objected. The Provincial Court judge

convicted Mr. Truong, relying on the presumption of regularity. She indicated that the accused bore the burden of proving any exceptionto the terms of the recognizance. She declined the Crown’s request to look at the Court file. [22] On appeal, Smart J considered these issues carefully. He concluded that the Provincial Court judge had erred in applying thepresumption of regularity and essentially reversing the onus of proof. However, he also found that she erred by not looking at the Courtfile.

The conviction was overturned and the matter sent back for a new trial. [23] At paras 56 and 57, Smart J discussed the admissibility of documents in the “court’s own files”: [56] The law is clear that documents contained in the court’s own files may be admissible pursuant to the common law exceptionto the hearsay rule as well as the statutory exceptions. The common law exception provides that they may be admitted upon productionof the original document or an exemplification under the seal of the court to which the record belongs. [57] It has been said that documents do not walk into a courtroom unaccompanied.

Usually, this is true. Documents are typicallyintroduced into evidence through the evidence of a witness or by affidavit evidence pursuant to a statutory provision. See for example s.29 and s. 30 of the Canada Evidence Act. However, documents in the court’s own files are an exception to this usual rule. [24] I agree with those conclusions. In my view, it would generally be a waste of time, effort, and resources to require viva voceevidence on issues such as whether a recognizance was in effect at a particular time.

Other than reviewing the file or files for which therecognizance is relevant, it is not clear to me who might give evidence to prove that the recognizance had not been varied, or that theunderlying charges had not been stayed or otherwise dealt with. A file is not assigned to just one person to know everything abouteverything on the file. Many police, prosecutors, clerks, administrators and judges may all have some

part in the process from charge toresolution. Anyone testifying about the status of a recognizance, or the underlying charges, would have to consult with other people whohad been involved in some aspect of the process, or look at the court file. The common denominator is the file, as other people may bedifficult to identify or locate. [25] While I recognize that errors in recording and filing might take place, I also agree with Smart J’s discussion at para 44concerning court documents: [44] The documents contained in a court file are public documents. They include the court’s own record of proceedings.

They areusually made and kept in the ordinary course of the court’s work. They are relied on by the court, by staff, by lawyers and by others. They are similar to the nurses’ notes that were admitted in Ares v. Venner, (SCC), [1970] S.C.R. 608. They are similarto documents that are admissible under the common law business records exception. See R. v. Monkhouse (1987), 1987 ABCA 227, 83 A.R. 62, 61 C.R. (3d) 343 (C.A.).

They are reliable documents that have a circumstantial guarantee of trustworthiness. [26] I am of the view that the mere possibility of some clerical error, or something not being on the court file that should be, doesnot displace proof beyond a reasonable doubt. Common jury charges, following R v Lifchus, (SCC), [1997] 3 SCR 320speak of reasonable certainty, not absolute certainty. [27] In Mr. Adair’s case, there were few court appearances. None of the records of the court appearances reflect any changes to hisrelease status or the conditions of his recognizance.

If there were any changes, those should be easily identified on the court file. Nochanges were noted in any way on the court file. [28] It is obvious that the charges had not been dealt with by the time Mr. Adair was charged with these new offences on January31, 2019. He had just been arraigned on the February 2018 charges on December 14, 2018. A trial date in Queen’s Bench was set forNovember 2019. There were no further appearances in Queen’s Bench until the November 2019 trial date, although some of the chargesappear to have been sent back to Provincial Court.

That happened in August 2019, long after the new charges were brought against Mr.Adair. [29] On the basis of Exhibit 31, my review of the court file relating to these charges and the court file relating to the charges thatgave rise to the recognizance in question, I am satisfied beyond a reasonable doubt that the recognizance was in full force and effect fromFebruary 6, 2018 until long after January 31, 2019. Count 13 [30] Mr. Adair was observed by a police officer behind the wheel of black Mercedes Benz motor vehicle and driving on January 5,2019.

At the time he was bound by his recognizance dated February 6, 2018 not to be behind the wheel of any motor vehicle. On theevidence before me, I am satisfied beyond a reasonable doubt that Mr. Adair is guilty of breaching his recognizance. Count 14 [31] On January 29, 2019, Mr. Adair conducted a drug transaction by selling a small amount of methamphetamine to anundercover police officer. At the time, he was bound by his recognizance dated February 6, 2018 to not be in possession of any non-medically prescribed drugs. Methamphetamine is not a medically prescribed drug.

On the evidence before me, I am satisfied beyond areasonable doubt that Mr. Adair is guilty of breaching his recognizance. Count 15 [32] When police executed a search warrant at Mr. Adair’s residence on January 31, 2019, they found a number of pieces of

identification showing what appears to be Mr. Adair’s picture, but in other persons’ names. At the time of the search, Mr. Adair was bound by his recognizance dated February 6, 2018 to not be in possession of any identity documents not in his own name. On the evidence before me, I am satisfied beyond a reasonable doubt that Mr. Adair is guilty of breaching his recognizance. Conclusion [ 33 ] For the reasons expressed above, I find Mr. Adair guilty of Counts 13, 14, and 15. Dated at the City of Edmonton, Alberta this 7 th day of September, 2021. Robert A. Graesser J.C.Q.B.A.

Appearances: Maryse Trudel, of Public Prosecution Service of Canada for the Crown Steve Smith of Gunn Law Group for the Accused, Mr. Adair _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice Robert A. Graesser _______________________________________________________ The Docket Number for this matter has been corrected to read: 190181776 Q1 . Correction has also been made to spelling of Crown prosecutor’s name from Marise to Maryse.