R. v. Dougan Date:, 2014 BCPC 283

Citation: R. v. Dougan Date: 20141202 2014 BCPC 0283 File No: 94069-1 Registry: Kamloops IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ABRAHAM JOHN NORMAN DOUGAN RULING ON VOIR DIRE RE:

SECTION 30 CANADA EVIDENCE ACT OF THE HONOURABLE JUDGE S.D. FRAME Counsel for the Crown: Ms. L. Kilgore and Mr. S. Charles

Counsel for the Accused: Mr. K. Church Place of Hearing: Kamloops , B.C. Date of Hearing: July 21-25, 2014 Date of Judgment: December 2, 2014 [ 1 ] The Crown alleges that the accused shot a Dall sheep in the Yukon in violation of several sections of provincial, territorial, and federal legislation. The crux of the Crown’s case is a copy of a photograph printed in the 5 th Edition of the Big Game Records Book published by the Wildlife Records Club of British Columbia. The Crown seeks to admit the book as a business record under s. 30 of the Canada Evidence Act .

Alternatively, it seeks to admit the book on a principled exception to the hearsay rule. A Voir Dire was conducted on both aspects, but these reasons dispense only with the argument under s. 30 of the C.E.A. [ 2 ] The Wildlife Records Club of British Columbia is a society run by volunteers. There is no separate office. It is run out of several different people’s homes. There was only one dedicated editor of the book. Everything related to the publication of the Big Game Records book would be in the editor’s house. Byron Mason was the editor at the material time. [ 3 ] Mr.

Mason is a volunteer with the Wildlife Records Club of British Columbia. Its purpose was primarily to keep wildlife records. Part of that process included amassing score sheets and then publishing the record scores in the various editions of the Big Game Records Book. The Club also published pictures and stories submitted by hunters in the book. Usually, the contributors sent the material on their own without invitation from the Club. [ 4 ] Upon receiving sufficient contributions, Mr. Mason would bundle up the material and send it to Morriss Printing in Victoria. Mr.

Mason did not alter any photographs, nor did he give any instructions to the publisher to do so. His expectation was the publisher printed what was submitted. Similarly, the stories were not changed. Some of the submissions would be handwritten, which Mr. Mason would type out. Occasionally, he corrected spelling, grammar or punctuation. Largely, the stories came in “pretty perfect”. The captions accompanying the photographs were written by Mr. Mason.

The scoring and sizes reflected in the book come from the score sheets the hunters submitted. [ 5 ] Morriss Printers went out of business not long after the 5 th Edition was published. Mr. Morriss passed away around the time the book was printed. Mr. Mason does not know what happened to the material after the book was published. He is not in possession of the photographs reproduced in the book. It was not the practice of the Club to file the photographs or keep any of the material other than the score sheets. [ 6 ] Of course, Mr.

Mason cannot confirm that the photograph printed in the book is identical to the photograph sent to him. He cannot recall the photograph itself and does not have it in his possession any longer. Furthermore, he has no idea if the photograph has been cropped or enhanced in any way for printing. [ 7 ] The Crown argued that Mr. Mason’s volunteer position as the records chairman and compiler/editor of the Big Game Records Book falls within the definition of a business under s. 30(12) of the Canada Evidence Act . The Crown argued Mr.

Mason had developed a sophisticated method of storing, editing and compiling all of the submissions including stories, photographs and otherwise for the book. He kept all of the materials forwarded to him by hunters in folders in a filing cabinet or at his desk in his home. He made minor edits to grammar and punctuation to some of the stories but did not change the substance of them. [ 8 ] The publication of the Big Game Records Book is endorsed by the Wildlife Records Club and is therefore a record created in the usual and ordinary course of business of the Wildlife Records Club. Furthermore, Mr.

Mason was not only the records chairman for the Wildlife Records Club but the editor and compiler of the 5 th Edition of the Big Game Records Book. Making the book was one of his assigned duties. [ 9 ] Neither he nor Kim Brunt, the website manager for the Wildlife Records Club, are in possession of the original photograph published in the Big Game Records Book. [ 10 ] No one can provide assistance with respect to where the original photograph and story are now kept. Mr. Mason forwarded material he had to Mr. Brunt for the purposes of preparing the website. Mr.

Brunt scanned all of the photographs he received onto his home computer which he then uploaded to the website. He then burned all of the photographs he received from Mr. Mason onto a CD which he stored in a safe in his home. The pictures were then deleted from his file folder on his home computer. He did not retain any of the original photographs provided to him by Mr. Mason. Mr. Brunt said that if he had received the photograph, it would have been on the backup CD he provided.

He has searched all of his electronic files on his computer and he has searched the current and previous versions of the Wildlife Records Club website to conclude that he cannot locate the original photograph. He believes he may never have been in possession of the photograph because it is not located in any of these storage places. [ 11 ] Westbrook Printing Ltd., formerly Morriss Printing Ltd., dissolved on June 16, 2008. I am satisfied with the corporate records setting out this history are admissible. [ 12 ] The Crown argued that the book is a record of the society.

While the underlying material was not kept, there is no requirement that the underlying materials be so retained. [ 13 ] Mr. Church argued that the best Mr. Mason can say is that he thinks it is the same photo. The nature of the Wildlife Records Club is that they are not in a business where frequent checks are made. Additionally, the materials are kept in a file cabinet or on the editor’s desk. Printing of the books is done five or six years apart. Essentially, the Club ran its business off the corner of a desk. As such,

it cannot meet the threshold reliability test. [14] Referring to s. 30(3), Mr. Church argued that in the ordinary course, a witness must look at the original, look at the copy, andthen verify that they are the same. Mr. Mason cannot remember if the original photograph was in colour, whether the foreground orbackground had been cropped in comparison to the original, or whether the printed version is similar to the original. No one fromMorriss Printing is able to come to court to say whether the photograph was cropped or edited. [15] Mr. Charles argued that the book itself is the record.

The original photos, stories and score sheets may be records but they arenot relevant to whether the book is a record kept in the ordinary course of the Club’s business. As such, s. 30(3) does not apply becausethe record itself has been produced. I agree. The issue properly before me is not whether the contents of the book are true and accuratecopies of records but whether the book is itself a record kept in the usual and ordinary course of the Club’s business. [16] Additionally, Mr. Church submitted that the purpose of the Club is to keep records, not photographs.

It is the score sheets whichare kept in the ordinary course of Club’s business. It is the keeping of those scores and numbers that is the primary function of the Club. [17] In R. v. Wilcox, 2001 NSCA 45 , [2001] N.S.J. No. 85, the Nova Scotia Court of Appeal had to determine whether acrab book or fish book not kept in the ordinary course of employment but to assist the employee in the execution of his duties constituteda business record. The Crown sought to have the book admitted as evidence of the truth of its contents either under the principledexception to the hearsay rule or as a business record.

The court determined that the fish book could be admitted under the principledexception to hearsay, but not as a business record. The issue in that case was that the record was not kept in the usual and ordinary courseof business. Having considered cases where similar records had been admitted under s. 30, the court said this at paragraph 58: [58] I regard this as a very close case of admissibility under s. 30. Exhibit 24 could be said to have been made in the ordinary courseof business on a reasonable

interpretation of the

section and particularly in light of the omission of the "business routine" branch of thetest contained in several of the provincial evidence acts. On the other hand, to interpret the usual course of business requirement so as toadmit Exhibit 24 would extend the ambit of the

section very broadly. In my opinion, where, as in this case, admissibility under s. 30 isseriously debatable, it is best to turn to the principled approach to determine admissibility. In that way, admissibility will be determinedby analysing the particular document in light of the principles underlying the hearsay rule rather than by parsing the words of the statutewhich, in the particular case, are capable of more than one reasonable application of the facts. Turning to the principled approach wherethe application of the statute is seriously debatable is also sound for another reason.

It would take very clear words in the statute toauthorize the admission of hearsay evidence that is not necessary and reliable. In a close case under the statute, it is highly unlikely that acourt would interpret the statute as authorizing the admission of such evidence. I conclude that admissibility of Exhibit 24 is bestconsidered under the principled approach. [18] The evil the court was concerned about in Wilcox is not present in this case. It is part of the Club’s function to publish thisrecords book. There is no dispute in this case that the photograph printed in the records book depicts Mr. Dougan.

I am satisfied that thebook was published in the usual and ordinary course of the business of the Wildlife Records Club. [19] The book is admitted into evidence on this trial in its entirety, not just the excerpts which are relevant to these proceedings. Thisdoes not mean to say that the Defendant is precluded from arguing that the quality of the photograph printed in the book is too poor forthe comparison the Crown seeks to perform at trial. [20] With this ruling, it becomes unnecessary for me to hear submissions on the alternative argument.

However, we do have toaddress what evidence heard on the Voir Dire is relevant to the remaining issues and whether it is appropriate to roll any of that evidenceinto the trial proper. _________________________________ S.D. Frame Provincial Court Judge