R v Gauthier, 2021 ABQB 727

Court of Queen’s Bench of Alberta Citation: R v Gauthier, 2021 ABQB 727 Date: 20210910 Docket: 191402049Q1 Registry: Edmonton Between: Her Majesty the Queen Applicant/Crown - and - James Darrel Gauthier Respondent/Accused _______________________________________________________ Endorsement on Admissibility of Evidence of the Honourable Mr. Justice M. J. Lema _______________________________________________________ A.

Introduction [ 1 ] This is a decision on the admissibility under ss 30 and 31.1 of the Canada Evidence Act of an affidavit of an official of an electronic-monitoring enterprise outlining the ankle-bracelet-reported movements of the accused. [ 2 ] For the reasons outlined below, the evidence is admissible under those sections.

B.

Arguments and analysis [ 3 ] I outline the defence arguments and my analysis of each, in turn, below: • the enterprise, Track Group Inc., a Delaware corporation, is not a “business” within the meaning of ss. 30(12) CEA ; Finding: TGI is such a business, plainly falling within the wide embrace of “any business … or undertaking of any kind carried on in Canada or elsewhere.” • TGI does not satisfy the definition of “corporation” in ss. 31(1) CEA ; Finding : that definition only applies to s. 31, which does not apply here. • in any case, the affidavit does not explain the linkage, if any, between TGI and another apparent entity (“SafeTrack”, a Canadian entity) also apparently involved in the electronic monitoring; Finding : this argument does not bear on the affidavit’s admissibility, which does not turn on whether such linkage exists or not. (If such a linkage is necessary, and is absent, defence can make that argument later.) • the requirements of ss 30(3) CEA (for when a copy of a record, and not the record itself, is admissible) were not met; Finding : subsection 30(3) does not apply.

Per the case excepts in Appendix A, the information in question qualifies as “a record” i.e. is not a copy. • a necessary certificate under ss 30(4) CEA (partial requirement for a documentary explanation of the information conveyed by a record, where necessary) is missing; Finding : I do not see the information in question as necessarily requiring an explanation in the sense contemplated by ss. 30(4).

Accordingly, no such certificate is needed. • the requirements of s. 31.2 (“Authentication of electronic documents”) were not met; Finding : assuming we are dealing with “electronic documents” per s. 31.1, the “proof of integrity” called for by para 31.2(1)(

a) is satisfied by a presumption under para 31.3(c) (“the electronic documents [were] recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it”).

These requirements are satisfied here: the first element is confirmed by the affiant, and the second by the absence of any indication that TGI acted here under the control of the Crown. • Defence has not waived the accused’s right to cross-examine the affidavit deponent; Finding : the Crown gave the necessary (“at least seven days before … production”) notice under ss 30(7).

Even if the defence did not waive its cross-examination right, it is too late now to propose such cross-examination i.e. with no actual request to cross-examine before this admissibility application; • adherence to s. 30’s requirements is particularly required where the information comes from outside Canada; Finding :

section 30’s requirements are clearly met. • the affidavit was not properly commissioned or notarized south of the border (Illinois); Finding : I see nothing irregular on the face of the document (sworn before an Illinois notary public). Here I rely on ss 52-54 CEA and the explanation of “judicial officials” by Lafleur J. in Tang v Her Majesty the Queen , 2017 TCC 168 (paras 30-32 ). • fundamentally, the Crown has not shown the inherent reliability of the information; [ 4 ] Finding : we are focused here on the threshold admissibility of the affidavit.

Whether the information in it is inherently reliable will be explored and decided at the trial itself: see R v MacMullin and Elander , 2013 ABQB 741 (Germain J.) (paras 78-83 ). C. Conclusion [ 5 ] For all these reasons, I find that the affidavit (with its exhibits) is admissible under both ss. 30 and 31.1 CEA . Heard on the 8 th day of September, 2021. Dated at Edmonton, Alberta this 10 th day of September, 2021.

M. J. Lema J.C.Q.B.A. Appearances: Kerri Facchinutti Alberta Justice and Solicitor General for the Respondent/Crown Anita Allen-Lloyd Alberta Law Group for the Applicant/Accused Appendix A In R v. Bath , 2010 BCSC 1390 , Holmes J. characterized paper printouts from a particular electronic database as records, not copies: The Crown seeks the admission of Exhibits R and S under s. 30 of the Canada Evidence Act as records of the Canada Revenue Agency ("CRA"). Exhibits R and S are paper printouts from electronic databases maintained by the CRA.

Exhibit R is a printout from what has been called the “RAPID” system, thought to stand for "Random Access Personal Information Database", the system that the CRA used until October 2000. Exhibit S is a printout from the “SA” system, which stands for the "Standardized Accounting" system that the CRA has used since October 2000.

The Crown seeks the admission of these documents for the purpose of establishing that of the twenty companies said to have been used to commit the alleged GST frauds now on trial, seventeen of those companies filed no corporate income tax (T2) returns at all during the relevant period, and the three companies that did file reported only minimal income. Mr. Drolet objects that the paper printouts are but copies of records that do not meet the requirements for admission in s. 30(3).

A copy, as contrasted with the “record” itself, may be admitted under s. 30(3) if it is accompanied by an affidavit explaining why the original record is not reasonably practicable to produce, and attesting to the authenticity and accuracy of the copy: 30. . .

(3) Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce the record and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by the person who made the copy, is admissible in evidence under this

section in the same manner as if it were the original of the record if each document is (

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

b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made in conformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the foreign state. It is true that Exhibits R and S are unaccompanied by any such affidavit evidence. However, the assurances that s. 30(3) requires have been given in sworn or affirmed testimony of the two CRA witnesses who testified about these documents and the CRA's electronic records. Significantly, Mr. Mitch Cote testified about personally producing Exhibits R and S from the CRA’s electronic databases.

In allowing the necessity and authenticity of a copy of a record to be proven by affidavit, s. 30(3) aims, in my view, to reduce theprocedural obstacles to admission, and not to increase them. The subsection provides for the more expedient method of proof of thenecessity and authenticity of a copy, but does not expressly or by implication prevent viva voce evidence covering the same ground tosimilar effect.

To conclude otherwise would require the preparation and swearing of an affidavit when a witness in oral testimony --called to address supplementary or additional matters -- has provided the very evidence that the affidavit would also contain; thatconsequence cannot have been intended. It is common ground that notice of the evidence described in s. 30(3) was sufficient. I conclude that if the printouts are copies of arecord, then the requirements for admission in subsection (3) are met.

I say "if" because the Crown contends that Exhibits R and S are “records”, not copies of records, and are therefore admissibleunder s. 30 without resort to subsection (3). The Crown relies in this regard on the reasoning in R. v. Bicknell (1988), (BC CA), 41 C.C.C. (3d) 545 (B.C.C.A.) at551, where, on this point, the Court’s reasoning is as follows: The computer print-out was introduced as a "record" pursuant to s. 30 of the Canada Evidence Act, R.S.C. 1970, c. E-10. Theappellants submit that what was contained within the computer was the "record", and that the print-out was merely a copy.

Theappellant submits that this copy was not properly proven pursuant to s. 30. A similar point was dealt with by this court in R. v.Vanlerberghe [(1979)], (BC CA), 6 C.R. (3d) 222, where objection was taken to the introduction of computerprintouts from various branches of the Royal Bank. Bull, J.A. stated, at p. 224: I think that the

section clearly covers mechanical as well as manual bookkeeping records and the keeping of records, and theflow-out or printout of that bookkeeping system clearly falls within the meaning of 'records' in s. 30 and was thereforeadmissible. Accordingly, in my view, that submission must fail. [paras 1-9] [emphasis added] This approach was echoed and amplified by Owen-Flood J. in R v Hall, (BCSC): B. Are the computer records inadmissible because they are not originals but copies, requiring the Crown to comply withthe Canada Evidence Act, ss.30(3) and (4)?

In considering this ground I bear in mind that s.30(12) contains a definition of "copy" and of "record". The definition of "copy" reads: "copy" in relation to any record, includes a print, whether enlarged or not, from a photographic film of the record, and "photographicfilm" includes a photographic plate, microphotographic film or photostatic negative; Thus, the definition of "copy", like the definition of "record" that follows it, is not an all-inclusive definition. In fact, all the s.30(12)definition of "copy" says is that, in relation to a record, in effect it includes a photographic print.

I find that a computer printout, whileperhaps analogous to a photographic print, is not a photographic print. Nevertheless, a screen printout is a reproduction generated by a computer terminal and in one sense is a copy of originalinformation contained on the mainframe computer. This definition of "copy" must be read in the context of the definition in thesection of "record" which reads in its material parts: "record" includes the whole or any part of any ... document, paper, card, tape or other thing on or in which information iswritten, recorded, stored or reproduced, ...

Thus, in my view, a computer printout can and must be regarded as coming within the definition of a "... document, paper, card,... on or in which information is written, recorded, stored or reproduced, ...". A computer screen printout does constitute a record of the information that was originally created. Counsel have urged that in thecase of the computer screen printouts produced at bar, they cannot be records because they are not permanent.

Counsel for the defencecontends that a record containing information in respect of a matter that is admissible in evidence must not only be made in the ordinarycourse of business, but must also be permanent. I see nothing in law which requires that a record be either permanent or temporary. Indeed, records are only kept for as long asthey are needed. I find that nothing turns on the lack of permanence argument advanced by the defence. [discussion and adoption of R. v. Vanlerberghe and R. v. Bicknell, referenced in R v Bath, above] R. v.

Brierley (30 May 1992), Nanaimo No. 26079S (S.C.) resembles the case at bar in that it concerned the admissibility ofbilling records of cellular telephone calls. At 2 Spencer J. applied Bicknell and reached a similar conclusion: The printout is as much the record as the magnetic imprint in the computer hard drive or on the magnetic tape, although in adifferent form. I am unable to accept the contention by the defence that in the instant case the computer screen printouts are merely copies.

The defendants argue that the Bicknell decision was per incuriam as the Court apparently was not referred to the binding decision of R.

v. Bell and Bruce (1982), (ON CA), 26 C.R. (3d) 336, affirmed without reasons: (SCC), [1985] 2S.C.R. 287. There the Ontario Court of Appeal and, through affirmation, the Supreme Court held that, insofar as s.29 of the CanadaEvidence Act is concerned (as opposed to s.30, the concern of Bicknell and the instant case), depending upon the evidence acomputer printout may be either a record or a copy. In Bell and Bruce the bank computer produced two printed copies of a monthlystatement of account and having done so retained no memory of that information.

I am not convinced that Bell and Bruce is incompatible with Bicknell or that it should prompt this Court not to follow Bicknell.In Bell and Bruce the Crown sought to introduce into evidence a copy of the printout. Thus the debate of whether a printout was a copyor an original was already a foregone conclusion. Its general discussion of the status of computer printouts does not work to exclude theevidence in the immediate case. Weatherston J.A. concluded that the printout became a record as the bank used it for that purpose.

At339, Weatherston J.A., for the Court, wrote: Because of the rapidly changing nature of the technology, it would be impossible to lay down general rules to govern every case. It isalways a question of fact whether any recorded information (in whatever form) is a "record kept in any financial institution",but I think the following general propositions have so far emerged: 1. A record may be in any, even an illegible, form. 2. The form in which information is recorded may change from time to time, and the new form is equally a "record" of that kindof information. 3.

A record may be a compilation or collation of other records. 4. It must have been produced for the bank's purposes as a reference source, or as part of its internal audit system and, at therelevant time must be kept for that purposes. For the purposes of this application, I am persuaded that the computer records were mechanically created for the respectivetelephone companies' usual and ordinary business purposes. The information reproduced was recorded as a reference source,kept as part of its internal audit system and so kept for that purpose at the relevant time.

Insofar as computers are concerned, Isee no merit in the arguments based on the alleged distinctions between copies and records. In view of the evidence in the case atbar I find that distinction is a meaningless one. The law must be applied in accordance with the rapidly changing reality of todaynotwithstanding that it was drafted in the past.

For this Court to hold in the context of this application that the printouts werenot admissible would be to ignore the realities of the computer age, wherein technological change has rendered the formerdistinctions between originals and copies a moot distraction in many areas. [paras 43-52] [emphasis added] By contrast, see R. v. Peters, 2009 ABPC 323 (Fradsham PCJ), where the original records were in paper form: 1) Are the documents “records” under

Section 30 of the Canada Evidence Act, or are they copies of records as referred toin Section 30(3) of the Canada Evidence Act? This question is important because the pre-conditions to admission differ between “a record made in the usual and ordinary course ofbusiness” [section 30(1)] and “a copy of the record” [section 30(3)]. Section 30(1) reads as follows: 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. Section 30(3) reads as follows: ...

(3) Where it is not possible or reasonable 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; o (

b) a certificate or other statement pertaining to the record in which the person attests that the certificate or statement is made inconformity with the laws of a foreign state, whether or not the certificate or statement is in the form of an affidavit attested to before anofficial of the foreign state. Both original records and copies of records are subject to the provisions of section 30(4) (explanatory evidence in relation to the recordor copy), and section 30(7) (certain notice and production requirements). I am satisfied that Exhibit “A” for Identification is made up of copies of records.

As previously noted, the “DocView” computersystem used by Calgary Laboratory Services simply reproduces copies of original documents which have been scanned into thecomputer system. The original records are the paper documents which have been scanned. Exhibit “A” for Identification is madeup of copies, not originals. [paras 21-26] [emphasis added] See also the comments of Germain J. in R v MacMullin (cited above, at paras 114-123) on the overall approach to s. 30:

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. Legal authorities and common sense make clear that any

interpretation that leads to an absurd result is to be avoided. So what is the scheme and overall objective of CEA , ss. 29 and 30 ? First, the scheme of the act is to prevent the wastage of time both from the point of view of a witness and the court. The legislation strongly encourages reliance on affidavit evidence to introduce these documents. That is not to say that the courts should unreasonably reduce the safeguards on the admissibility of documents and allow sloppy affidavits and technically erroneous affidavits to become the norm.

Recently the British Columbia Court of Appeal in R v Jahanrakhshan , 2013 BCCA 128 has indicated it is absurdly formalistic, “an empty technicality”, to argue that the two affidavit requirement described in CEA , s 30 is not satisfied where a single person provides a single affidavit to satisfy both the requirements of CEA , s 30(3).

This decision of the British Columbia Court of Appeal reinforces my conclusion that across Canada courts continue their focus on substance over form in this area of the law, concentrating the analysis on practical issues with the concern focused on whether the copy is a true one, rather than mechanical issues. [To remain consistent with the objective of interpreting ss 29 and 30 in a way that does not lead to absurd results suggests that the admissibility threshold for these documents, once they are authenticated by an affidavit confirming that they represent a true copy of the institution’s file, should be relatively low.

This line of reasoning and conclusion is appropriate for applications of both CEA , ss 29 and 30, in a current business climate. [paras 114, 118, 120, and 123] [emphasis added]