Her Majesty the Queen - v. -, 2012 SKPC 86

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2012 SKPC 086 Date: 18 th June, 2012 Information: 24378770 Location: LaLoche, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Marty Keith Toulejour Appearing: Gregory Lyndon, Esq. For the Crown Owen Griffiths, Esq. For the Accused RULING ON ADMISSIBILITY OF DOCUMENTS J.A. NIGHTINGALE, J [ 1 ] The Crown has presented an Information, laid pursuant to

section 810.2 of the Criminal Code , by which Corporal Brian R.N. Haswell of the R.C.M.P. swears that he has reasonable grounds for believing and does believe that Marty Keith Toulejour will commit a serious personal injury offence as defined in

section 752 of the Criminal Code and prays that Mr. Toulejour be bound over pursuant to Code

section 810.2. Mr. Toulejour resists the Application, so I have commenced a hearing to determine whether the Informant Haswell has the requisite grounds for his belief and if so, whether the Respondent should be bound over by means of a Recognizance.

[2] An issue has arisen as to whether some documents, which the Crown wishes to adduce as proof of the truth of their contents,are admissible for that purpose, so the hearing of the

section 810.2 Application has begun with a voir dire into that issue. No viva voceevidence was called on the voir dire; the Crown relies on the documents themselves, augmented by several affidavits, and Mr. Toulejourchose to call no evidence. Receipt of the proposed Crown documentary evidence and of the submissions of counsel initially occupied the 14th and 15th of May 2012, after which both parties expressed a desire to make further submissions. These were received on the 24th of May 2012, and on the 8th of June 2012, after which I reserved my decision until today. The hearing of the Crown’s

Section 810.2 Application has been set to begin on the 31st of July 2012. [3] After careful consideration of the evidence taken on the voir dire and of the submissions of counsel, I have concluded that ofthe documentary evidence proposed by the Crown for admission on the Application, only a DVD recording of an incident at theSaskatchewan Penitentiary is provisionally admissible. My reasons for this conclusion follow. [4] The documentary evidence which the Crown seeks to adduce falls into four categories. The first is comprised of a collectionof documents from the Correctional Service of Canada.

As represented in the submissions of Crown counsel they are individualdocuments extracted from a larger group of documents which together is called a “warrant expiry date package.” Since there has been noviva voce evidence on the voir dire, any explanation as to the nature, provenance and purposes of these documents must come, if at all,from the affidavits which accompany them as filed, and from the documents themselves. [5] The second category of proposed Crown documentary evidence is a DVD recording, accompanied by two affidavits.

The DVD purports to depict an incident at the Saskatchewan Penitentiary which occurred on the 23rd of April 2008. During the incidentseveral inmates of the Penitentiary used weapons to inflict violence upon other inmates and it is alleged that one of the aggressors wasMr. Toulejour. The Crown concedes, for the purposes of the voir dire, that a layman - or in this case a judge - would be unable todiscern Mr.

Toulejour’s presence during the depicted attack, and that it will require viva voce testimony to support the notion that he wasthere and took part. [6] The third category of documentary evidence which the Crown seeks to adduce is a curriculum vitae of Barry Mayoros, anofficial with the Provincial Correctional Service of Saskatchewan. The Crown has announced their intention at the forthcoming hearingto seek to have Mr.

Mayoros qualified as an expert in “gang activities”, and contends that admission into evidence of his curriculumvitae is an essential step towards that qualification. [7] The fourth category of documentary evidence advanced by the Crown is a copy of Mr. Toulejour’s alleged prior criminalrecord, which I understand would be in the customary format created by resort to the Canadian Police Information Centre, or CPIC. Asevents in the voir dire unfolded, this document was not filed and is not before the Court. [8] It is convenient to deal with the admissibility of the latter two categories of documents at the outset.

With respect to thecurriculum vitae of proposed Crown witness Barry Mayoros, it seems to me that this document can only become relevant to theproceedings when referred to by the witness himself during his testimony. It is not appropriate to admit it at this stage of the hearing forproof of the truth of its contents when the very person to whom it refers and presumably by whom it was created is to be a witness and isable to introduce and explain it. I therefore decline to receive the document now, but will invite the Crown to submit it during thetestimony of the witness. [9] So far as concerns Mr.

Toulejour’s alleged prior criminal record, his counsel indicated during oral submissions on the voirdire that there may be issues about the accuracy of the CPIC version of the criminal record, and asked that the Crown prove the recordby filing certified copies of the convictions themselves. I understand Crown counsel to have agreed to do this, and he has representedthat he will produce the certified copies at the commencement of the hearing proper at the end of July.

This agreement obviates thenecessity of a ruling as to the admissibility of the CPIC record, so again I decline to do so, and chose not to receive or mark it as anexhibit on the voir dire. Should issues concerning the criminal record arise at the hearing itself I am, of course, prepared to considerthem at that time. [10] Thus two categories of proposed Crown documentary evidence remain for consideration; the extracts from the warrant expirydate package and the DVD, both with their accompanying affidavits.

The Crown submits that in both cases the documents areadmissible as proof of the truth of their contents either by the application of the provisions of

section 30 of the Canada Evidence Act orby resort to the common law principles articulated in the decision of the Supreme Court of Canada in Ares v. Venner,

(SCC), [1970] S.C.R. 608. Mr. Toulejour contends that neither of these avenues provide a route to admissibility. [11] I turn first to a consideration as to whether the first category of document - the warrant expiry date package - is admissiblepursuant to

section 30 of the Canada Evidence Act (hereinafter referred to as the CEA). In doing so I must consider the requirements foradmissibility set out in

section 30. One of those requirements, found in section 30(3)(a), is that the documents be accompanied byaffidavit evidence to prove several essential elements:

a) that it is not possible to produce an original and why,

b) setting out the sourceof the document, and

c) attesting both to the document’s authenticity and as to the faithfulness of the copying. [12] In the case at bar the Crown has attempted to comply with CEA section 30(3)(

a) by filing what purport to be affidavits. I willrefer to these as purported affidavits for several reasons. First, in neither of the two affidavits which accompany the DVD, nor in the twowhich accompany the documents from the warrant expiry date package, do the affiants depose either to personal knowledge of thematters to which they depose, or to their belief in the truth of what they have learned from others.

Thus the affidavits are not based oneither information or belief. [13] Second, with respect to the purported affidavit which accompanies the documents from the warrant expiry date package thereare additional problems. The purported affidavit of Jeffrey Ens refers the reader to a total of six exhibits - the documents themselves -labelled as exhibits A through F, and in the affidavit Mr. Ens deposes to the exhibits as being attached to his affidavit. As receivedduring the voir dire, the documents are not, in fact, attached to the affidavit, or to anything else. Rather, Mr.

Ens’ two-page affidavit wasreceived, stapled together with a third page, which may be referred to as an exhibit-stamp page concerning purported exhibit “A”. Beneath these three stapled pages are a series of single sheet exhibit-stamp pages purporting to refer to exhibits “B” through “F” but notattached to anything.

There are also a series of documents, all of them multiple pages, stapled together in groups but not attached eitherto exhibit-stamp pages nor to the affidavit itself. [14] Third, the exhibit-stamp pages do not refer the reader to the affidavit and its author, but refer instead to the exhibitsthemselves. This is best illustrated by example. The exhibit-stamp page attached to Mr.

Ens’ affidavit recites: “This is Exhibit Areferred to in the Affidavit of Warrant Expiry Release Package memorandum, Dated April 13, 20[remainder of date obscured] Swornbefore me this 21 day [sic] of October, 2011 . . .” Each of the remaining five exhibit-stamp pages makes reference to a different varietyof document in similar fashion, rather than to the name of the affiant. [15] These purported affidavits are all deeply and, in my view, fatally flawed as to both form and substance. In order for thedocuments from the warrant expiry date package to be admissible as business records pursuant to

section 30 of the Canada Evidence Act,there must be compliance with the affidavit requirements of section 30(3)(

a) of that Act. In my opinion there has not been suchcompliance here. It follows that neither the warrant expiry date package documents nor the DVD are admissible pursuant to

section 30of the Canada Evidence Act. [16] However, in the event that I am in error as to the sufficiency and efficacy of the affidavits, I will continue the analysis andconsider the balance of counsels’ submissions as to admissibility of the warrant expiry date package documents and the DVD under theCEA

section 30. I will start by examining the warrant expiry date package materials. [17] The CEA

section 30 requires first that I determine whether the information contained in the proposed documentary evidencewould be admissible if given as oral evidence. From a reading of the documents in the warrant expiry date package it is clear that muchof the contents is hearsay, and often hearsay which is double or triple in nature. Many assertions in the documents have clearly beenrepeated to a variety of parties prior to finding their way into the document. The various documents often repeat passages from onedocument to another.

It thus becomes necessary to consider the admissibility of such hearsay evidence, whether in documentary form orotherwise. [18] This issue was addressed by the Saskatchewan Court of Appeal in its decision in R. v. Martin, (Sask.C.A.). Mr. Martin was charged with defrauding the Canadian Wheat Board by overstating the quantity of stored, threshed wheat in hispossession and eligible for delivery. It was alleged that this overstatement had induced the Board to advance Mr. Martin more moneythan that to which he was actually entitled.

In the Crown’s efforts to prove the charge, it wanted to adduce tables of data gathered byStatistics Canada concerning estimated crop yield averages gathered from area farmers and other sources, all pertaining to landscontiguous to those of Mr. Martin. Such evidence was, of course, directed towards showing the unlikelihood that Mr. Martin wouldhave on hand the quantity of grain he claimed to have.

The Crown called the Director of the Statistics Branch of SaskatchewanAgriculture and Food to testify that this data was captured from Statistics Canada and other sources and that the Branch relied upon it forthe work of the Department of Agriculture under its legislated mandate.

[19] The trial judge in Martin, supra, refused to admit the data because it contained hearsay information and because no witnesscould testify as to its accuracy. On appeal, Jackson J.A., reviewed and analysed the history of the admissibility of documents atCanadian law, including the common law and its codification in the CEA, together with more recent cases which had considered theissue.

I paraphrase Her Ladyship’s conclusion, which was that concerns over hearsay and even double hearsay were intended by section30 to be overcome by the inherent circumstantial guarantees of accuracy otherwise featured in the requirements of the section. Inreaching this conclusion Jackson J.A. relied, inter alia, on the words of Callaghan Co. Ct. J. in R. v. Grimba (1978), (ON SC), 38 C.C.C. (2d) 469.

He wrote, at page 471: It would appear that the rationale behind [s. 30(1)] for admitting a form of hearsay evidence is the inherent circumstantial guarantee ofaccuracy which one would find in a business context from records which are relied upon in the day to day affairs of individualbusinesses, and which are subject to frequent testing and cross-checking.

Records thus systematically stored, produced and regularlyrelied upon should, it would appear under s. 30, not be barred from this Court’s consideration. [20] In the circumstances before her in the Martin case, Jackson J.A. held the view that while the individual farmers and othersources who had provided the raw information from which the statistical date had been captured could all have been called as witnesses,to do so would involve ridiculous cost and effort.

She also characterized this level of fiscal and practical inconvenience as giving rise tothe element of necessity within the principled exception to the rule against hearsay. She found the element of trustworthiness within thatprincipled exception to be made out from the fact that the document was made in the ordinary course of business.

It was the verybanality and ordinariness of the records which gave to them the required measure of reliability. [21] At this voir dire, in support of the proposition that the CEA s. 30(1) does not preclude the use of hearsay evidence in businessrecords, the Crown also referred me to R. v. Gregoire, 1998 Can LII 17679 (Man. C.A.). In that case the Manitoba Court of Appealconsidered the admissibility under the CEA s. 30 of written reports of psychiatric examinations of the offender, proffered by the Crownat a dangerous offender hearing.

In ruling that such evidence was admissible, the Court took frequent pains to observe that dangerousoffender proceedings are not analogous to true criminal proceedings because the presumption of innocence is no longer at stake andbecause in sentencing proceedings it has long been the case that the normal evidentiary rules of admissibility are relaxed. [22] In light of my previous decision in R. v.

Fontaine, 2010 SKPC 16 , 2010 SKPC 016, in which I held that in CriminalCode s. 810.2 Applications the normal rules of evidence in criminal proceedings apply, I do not find the decision in Gregoire helpful orapposite in resolving the matter presently before me. I therefore decline to apply it. [23] The Crown also filed four decisions of the Provincial Court of Saskatchewan, in which the Court considered Criminal Code s.810.2 Applications. These are: R. v. Bird, 2010 SKPC 25 , 2010 SKPC 025, R. v. Johnson, 2010 SKPC 71 , 2010SKPC 071, R. v.Nayneecassum, 2010 SKPC 117 and R. v. Young, 2009 SKPC 86.

I understand the Crown’s purpose in referring me tothese cases is to show that in them the several courts admitted documents similar to those proposed for admission on this Application. [24] Of R. v. Bird, supra, I observe several distinguishing features. First, it would appear from the reasons of Goliath J. that theadmissibility of documents was not raised by the parties; he certainly made no comment in his decision which would suggest thatobjection was taken to the documentary evidence. Second, Judge Goliath’s decision predates mine in R. v.

Fontaine, supra; Bird was decided on the 10th of March 2010, while Fontaine was rendered on the 25th of that month. [25] In R. v. Johnson, supra, a decision of Carter J. of this Court, it would appear that His Honour admitted the documentaryevidence adduced by the Crown under the rubric of CEA s. 30(1); again it would appear that the aspects of that

section argued on thisApplication were not raised before him in that one, so he was not called upon to rule on the issue. [26] In Nayneecassum, supra, another decision of Carter J., it would seem that the Informant on the Criminal Code s. 810.2Application, the same Corporal Haswell who swore to the Information which launched the present Application, testified about thedocuments at the hearing and again no objection seems to have been taken to their admissibility. [27] Finally, in R. v. Young, supra, again it would seem no objection was taken by counsel to the admission into evidence of a

quantity of documentary evidence on behalf of the Crown, so Loewen J. understandably passed no comment concerning that issue. I do not agree with the submission of Crown counsel on this voir dire , that from an absence of judicial reference to the admissibility of documents in the four mentioned cases I ought to infer that each judge specifically considered admissibility of the documents when counsel did not object.

I know of no legal presumption of regularity to support such a proposition, nor has one been argued. [ 28 ] The next precursor to admissibility of documentary evidence pursuant to the CEA s. 30 is that the document be made in the usual and ordinary course of business. “Business” is defined broadly enough in s. 30(12), in my view, to encompass the work of the Correctional Service of Canada, and I so find.

A consideration as to whether each of the documents was made in the usual and ordinary course of the business of the Correctional Service of Canada calls for an examination of the purported affidavit of Jeffrey Ens, connected to the documents collectively called the warrant expiry date package. In his purported affidavit, Mr. Ens identifies himself as a parole officer, and relates that parole officers are required: . . . to prepare a collection of relevant offender documents for submission to the police authorities within 120 days prior to an offender’s release upon warrant expiry.

This collection of documents is known as a Warrant Expiry Date Package (hereinafter referred to as the “WED Package”). WED Packages are sent to the relevant police authorities typically to assist in deciding whether a Recognizance should be sought in any particular case, to control an offender’s conduct in the community upon release. [ 29 ] Mr. Ens goes on to relate that he had carriage of Mr. Toulejour’s “case” prior to Mr. Toulejour’s last release, and that it was a part of Mr.

Ens’ duty to select a variety of “offender case documents” from Correctional Service files and weave them into a “WED Package”, for submission to the R.C.M.P. If I had accepted Mr. Ens’ affidavit as meeting the requirements of an affidavit, I would have accepted that it was part of his normal duties - and thus part of the usual and ordinary course of the business of the Correctional Service of Canada - to prepare and forward the documents. In that respect, that element of CEA s. 30 admissibility would have been met. However, neither Mr.

Ens’ purported affidavit nor the documents themselves are at all clear as to the possible origins of a variety of the information contained in the documents. In a document entitled, “Warrant Expiry Release Package Notification of Release of Detained Offender”, for example, there are frequent references to “RCMP information”, “Saskatoon Police Service Information”, additional police information” and in some places there are references to “no official information” concerning offences it is said that Mr. Toulejour committed. In the same document there are references to other criminal allegations against Mr.

Toulejour in which charges were laid but where the Crown later entered stays of proceedings. At page 5 of this document, in relation to one such situation, the author alludes to the fact that not only was a stay of proceedings entered, the complainant was prosecuted for laying a false complaint. [ 30 ] In the same document, under the heading, “Institutional History”, appears an assertion that Mr.

Toulejour “is confirmed to be a member of the Scorpion Brothers street gang . . .” No source for this information is identified; it is unclear whether this is within the personal knowledge of the author, is hearsay or is conceded by Mr. Toulejour himself.

On the evidence presented at this voir dire it is not only impossible to discern the source and quality of much of the information in this document, there is also a disquieting sense when reading it that at least some of the information is unreliable. [ 31 ] Another source of concern in the proposed warrant expiry date package documents is that much of their content simply repeats the same information, in the same words, from one document to another. Information which in one document is described as a citizen complaint may be referred to in another document as the “Official Version”.

See: Criminal Profile Report, page 2, at the foot of the page. [ 32 ] I am particularly concerned about the inclusion in these documents of information which gave rise to criminal charges which were later stayed by the Crown. I am prepared to, and do, take judicial notice of the sad fact that criminal complaints are often brought to the police in circumstances of high emotion and that sometimes the complaint is made for an obtuse motive, only to be later recanted or found not credible.

While the contents of the several documents from the warrant expiry date package do mention instances when allegations against Mr. Toulejour were stayed, the tenor of the passages, in my view, seeks to leave the impression upon the reader that Mr. Toulejour still in fact committed the alleged misdeeds. This is palpably unfair and creates a prejudicial impression of Mr. Toulejour, in relation to those events. [ 33 ] In oral submissions during this voir dire , Crown counsel alluded to Mr. Toulejour having had the opportunity to question or correct the documents before they went forward or were used in any way.

Crown counsel urges that I find the documents reliable for that reason - that surely Mr. Toulejour would have protested if the documents contained inaccuracies or falsehoods. Mr. Toulejour may have had such an opportunity at the creation of document, but that is not the evidence on the voir dire . The purported affidavits of Jeffrey Ens and of Peggy Gran are silent on the point. In only two of the documents themselves appear any reference to an opportunity to review or correct. On the final page of a document entitled, “Psychological/Psychiatric Assessment Report” appears the following: Mr.

Toulejour has been provided the opportunity to read and review this report. His signature in no way implies he necessarily agrees with the content of the report.

[ 34 ] This passage makes no reference to Mr. Toulejour being afforded a chance to complain; it simply indicates that his signature on the document does not signify his agreement with its contents. There is no evidence here to permit a conclusion that he ever received a chance to review or correct the document. [ 35 ] In a letter dated February 10, 2010, from the Hearing Officer of the Parole Board of Canada to Mr. Toulejour, advising him that he has been denied conditional release from the Penitentiary, he is told that, according to law he may appeal the decision within 60 days.

Nothing in the materials filed on the voir dire permits a conclusion that Mr. Toulejour did or did not choose to take that appeal route. These are the only references I could find to opportunities Mr. Toulejour might have to “correct” matters with which he did not agree. [ 36 ] The net effect gleaned from reading the documents is that they are more in the nature of documents of advocacy than they are recitations of objective fact. Against the yardstick elucidated by Jackson J.A. in Martin , supra , they lack a circumstantial guarantee of trustworthiness or reliability.

Surely it is an essential element of a business record that it objectively and accurately capture and record actual events, not repeat unsubstantiated allegations. I will have more to say about that below, in relation to my analysis of CEA s. 30(10) (a)(ii). [ 37 ] The Crown has attempted, through the purported affidavit evidence, to satisfy the requirements of CEA s. 30 concerning the admissibility of copies as opposed to original documents.

Again I observe that had I found the purported affidavits to be properly prepared, I would have found that their contents satisfied me both as to the impracticality of producing original documents and as to their provenance within the Correctional Service of Canada electronic filing system, thus satisfying the requirements of CEA s. 30(3). [ 38 ] I turn next to a consideration of the provisions of CEA s. 30(10).

This subsection sets out a number of exemptions to the admissibility of documents under the section, situations in which documents may not be received despite meeting the requirements of s. 30(1) and (3). [ 39 ] The first such exemption occurs where the document or record is proved to be one made in the course of an investigation or inquiry.

This exemption causes a perplexing conundrum when applied to the business of the Correctional Service of Canada, for in the present context their “business” is the investigation of and inquiry into the risk that an offender nearing the end of a sentence of incarceration may present to the community when he is released.

Rather than attempt to resolve this conundrum in the present Application, however, I will set it aside, since resolving it is unnecessary in light of other conclusions I have reached. [ 40 ] The second exemption from admissibility under s. 30(10) arises when the record is made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding [emphasis added by me].

I believe this to be the case in the matter before me. [ 41 ] In paragraph 20 of these reasons, supra , I quoted the words of parole officer Jeffrey Ens as to the reasons for the preparation and handling of a warrant expiry date package. His words make it clear beyond peradventure that his aim in compiling the package was to assist the Crown in deciding whether to launch the present Application - the judicial imposition on an offender of entry into and compliance with a Code s. 810(2) Recognizance for a year after release from prison.

It is important, however, to be mindful of the difference between a document which has been created for the purpose of legal proceedings and one which existed before for some other purpose but has now been added to a compilation of documents for the purpose of legal proceedings.

In the former instance the document may be excluded by application of s. 30(10)(a)(ii), while in the latter instance it may not. [ 42 ] Both in Defence counsel’s written Brief of Argument and in the oral submissions of counsel at the voir dire , issue was joined as to whether the deliberations and decisions of the Parole Board of Canada are legal proceedings for the purposes of CEA s. 30(10)(a) (ii). Mr. Toulejour submits that they are, given the definition of the term “legal proceeding” found in CEA s. 30(12).

Crown counsel takes the opposite view, and argues that Parole Board of Canada deliberations and decisions are purely administrative in nature. [ 43 ] In support of the proposition that the deliberations and decisions of the Parole Board of Canada are not legal proceedings within the definition of that term in the CEA s. 30(12), the Crown has filed four cases. These are: John v. The National Parole Board ,

2011 BCCA 188 , Ross v. R. , 2011 SKCA 57 , Peel (Police) v. Ontario (Special Investigations Unit) , 2012 ONCA 292 and Canada (Minister of Citizenship and Immigration) v. S. , 2006 FC 270 . The first two cases discuss the parole regime in Canada in the context of federal inmates seeking a judicial review, in Mr. John’s case of a Parole Board decision to suspend his parole and in Mr. Ross’ case a denial of parole.

In both instances the respective courts held that judicial review by means of habeas corpus with certiorari in aid was not available because the parole process available to the inmates amounted to a “complete, comprehensive and expert procedure”: per Lowry J. at paragraph 35 of John v. National Parole Board , supra . [ 44 ] In Peel (Police) v.

Ontario (Special Investigations Unit) , supra , the Ontario Court of Appeal considered the issue as to whether injunctive relief was available to prevent the Ontario Special Investigations Unit from investigating alleged misconduct by several Peel Region Police Officers, on the basis that the Unit lacked jurisdiction to do so.

During his oral submissions on the 24 th of May 2012, in the present voir dire , Crown counsel advised that he was submitting this decision because the regime by which the Ontario Special Investigations Unit operates is analogous to that of the National Parole Board, and is a purely administrative body rather than one engaged in legal proceedings. [ 45 ] Crown counsel argues that the decision in Canada (Minister of Citizenship and Immigration) v.

S. , supra , represents a similarly analogous situation, in that instance the determination of a Government application for citizenship revocation on the basis that S. had failed to disclose his past as a German Forces guard at a transit camp at Bolzano, Italy during the Second World War. Crown counsel also argues that this case is useful in that in it O’Reilly J. of the Federal Court resolved a number of issues surrounding the admissibility of documents for proof of the truth of their contents, as is sought here.

Specifically, O’Reilly J. found that some of the proposed categories of business records, some Canadian and some German in origin, were admissible notwithstanding that they contained opinions and were questionably not business records at all. From the tenor of his reasons, His Lordship seems to have felt confident that he could consider each document against the grounds for inadmissibility put forward by the Respondent S. and decide which were admissible and which were not.

He found that some of the documents, for instance, were clearly historical policy documents and routine memoranda which would pass inspection, so to speak, regarding the exclusionary rules in the CEA s. 30(10). Without knowing the precise nature of the documents under consideration for admission in that case it is not possible, in my view, to create or apply an analogy to the present case. [ 46 ] With respect to the Crown submission that the foregoing four cited cases establish that the proceedings of the Parole Board of Canada are not legal proceedings, I cannot agree.

The first two cases, and the other precedents mentioned in them, certainly show that Canadian courts are loathe to intervene by prerogative writ in the deliberations of the Board, but the cases do not address the issue of whether those deliberations amount to legal proceedings.

If anything the cases suggest that the proceedings are legal in nature, since they allude repeatedly to the “complete, comprehensive and expert procedure” entailed in Board proceedings. [ 47 ] The CEA s. 30(12) definition of “legal proceedings” provides: . . . any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration. [ 48 ] A survey of legal dictionary

definitions of the word “arbitration” yields the following: A dispute resolution mechanism, whereby an independent neutral third party is appointed to hear and consider the merits of the dispute, and who renders a final and binding decision called an award. Canadian Law Dictionary www.canadianlawsite.ca/Dictionary.htm An agreement to submit a dispute for a hearing and binding decision by a third-party, an arbitrator(s), who is neither a judge nor a Court. duhaime.org/LegalDictionary.apx An out-of-court procedure for resolving disputes in which one or more people - the arbitrator(

s) hear evidence and make a decision. Arbitration is like a trial in some ways but typically proceeds much more quickly and with less formality. Legal Information Institute of Cornell University [ 49 ] Parliament, in enacting CEA s. 30(12), did not define legal proceedings as necessarily restricted to judicial proceedings; the explicit inclusion in the definition of a proceeding so clearly non-judicial as an arbitration, in my opinion, makes that clear. I conclude that for purposes of s. 30, even if the proceedings of the Parole Board of Canada are administrative in nature, they are yet legal

proceedings, for the purposes of CEA s. 30(10)(a)(ii) and s. 30(12).

I conclude that any of the documents contained in the warrant expirydate package that were created for the use of the Parole Board of Canada in its deliberations are exempted from admissibility under theCEA s. 30 because they were created in contemplation of legal proceedings. [50] This Application for a Code s. 810.2 Recognizance is manifestly also a legal proceeding, and the document included in thewarrant expiry date package, entitled, “Warrant Expiry Release Package Notice of Release of Detained Offender”, authored by Jeff Ens,which the Crown wishes to adduce on the Application pursuant to CEA s. 30, is equally manifestly exempt from admission under thatsection by virtue of s. 30(10)(a)(ii).

This document, from a reading of its contents, post-dates the deliberations of the Parole Board ofCanada in relation to Mr. Toulejour, and was clearly prepared solely for the purpose of giving advice which contributed to the Crowndecision to seek this hearing. [51] In reaching these conclusions I also observe that the documents under consideration are not objective, matter of factrecitations of fact, but rather are documents composed and designed to advocate a position. As Strayer J. put it in his decision inPerforming Rights Organization of Canada Ltd./Société de droits d’exécution du Canada Ltée v. Lion d’Or

(1981) Ltée, 1987CarswellNat 751, 17 C.P.R. (3d) 542 (Fed. T.D. Oct 20, 1987), at paragraph 4: As I understand the rationale of subs. 30(10) of the Canada Evidence Act, it is to exclude records which have as their very purpose thepreparation for enforcement action through litigation, and this because of the danger that such records may be somewhat coloured for thepurposes of litigation and therefore unreliable.

Put another way, records made in the ordinary course of business are admitted becausewhere no dispute or litigation is contemplated it is assumed that there is normally no reason for such records to be other than accurate. [52] Having reached the foregoing conclusion as to the lack of admissibility of the warrant expiry date package documents, it isunnecessary for me to consider the remaining two grounds for exemption, contained in CEA s. 30(10)(a)(iii) and (iv), and I thereforedecline to do so.

I turn next to consider whether the same documents are admissible under common law rules of evidence. [53] As mentioned above, a seminal case concerning the admissibility of documents at common law is Ares v. Venner, supra. Inthat case, Hall J., on behalf of the Court, ruled that notes made by nurses in a hospital were admissible, so long as they were madecontemporaneously with the events by someone having a personal knowledge of the matter then being recorded and under a duty tomake the entry or record. This ratio has since been applied to any number of analogous circumstances. [54] In Ares v.

Venner, supra, the plaintiff, having suffered a severe fracture of the leg while skiing at Jasper, Alberta, was taken tohospital in Edmonton, where Dr. Venner reduced the fracture and applied a groin to ankle cast. Several hours later the injury site beganto swell, restricting blood flow to the lower part of Mr. Ares’ leg and foot for a sufficiently lengthy period that circulation was lost,irreparable harm was done and ultimately Mr. Ares lost the leg to amputation. It was the observed progress of this tragedy that wasrecorded by the nurse.

As described by Hall J. at unnumbered paragraphs 3 and 14 of his Supreme Court of Canada judgment, as thehours passed she noted such phenomena as: Quiet evening, complained of discomfort, relieved by sedation, numbness in all toes, toes now swollen and blue . . . . . . 8:00 p.m. cast split approximately 8" and patient’s toes numb, swollen and blue and no movement in toes . . . [55] I have described in some detail the particular circumstances which gave rise to the decision in Ares v.

Venner, supra, in orderto illustrate the contrast between the objective, noted observations of the nurse in that case and the subjective comments of the variousauthors of the documents under consideration for admissibility in the instant case. Some of that subjectivity may also arise due to theabsence of two of the elements essential to the admission of documents under the principle in Ares v. Venner - those of personalknowledge and contemporaneous observation by the maker of the document. [56] Since Ares v.

Venner, the common law as to the admissibility of documents for the proof of their contents has more recentlybeen informed by the decisions of the Supreme Court of Canada in cases such as R. v. Khan, (SCC), [1990] 2 S.C.R.531, R. v. B.(K.G.), (SCC), [1993] 1 S.C.R. 740, R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787 and R. v.Blackman, 2008 SCC 37 , [2008] 2 S.C.R. 298.

The principle which emerged from this line of decisions, referred to as theprincipled approach to hearsay evidence, calls for an examination as to whether it is necessary to receive the proposed hearsay evidenceand, if so, whether there are sufficient guarantees of reliability to justify admission as proof of the truth of the hearsay. [57] On the evidence tendered at the voir dire, one may travel some distance down the road towards necessity if one accepts the

contents of the purported affidavits of Peggy Gran and Jeffrey Ens; it would certainly be something of a task to call as witnesses all of the authors of the material comprising the warrant expiry date package. On the other hand, other sources of at least some of the information may be at hand, such as court transcripts, viva voce testimony from the psychiatrists or psychologists who interviewed and assessed Mr. Toulejour, Correctional Service of Canada employees who personally interacted with Mr. Toulejour during his period(

s) of incarceration, and so forth. On the evidence presented it is difficult to assess the element of necessity. [ 58 ] As to the element of reliability, a number of the comments I made earlier in these reasons concerning the nature and purpose of the documents themselves apply with equal vigour.

While the authors of documents such as the Criminal Profile Report, the Psychological/Psychiatric Assessment Report and the assessments for decision may have been under a duty to make them, in my view that duty included such a profound element of personal opinion and advocacy as to render the objectivity of the documents deeply suspect. When that aspect of the documents is combined with the inclusion in them of various unproven allegations and suppositions, the documents fall short of reliability and objectivity to a degree that renders them inadmissible under either the Ares v.

Venner approach or the principled approach to hearsay articulated by the Supreme Court of Canada. For all of the foregoing reasons, I find that the group of documents we have called the warrant expiry date package are inadmissible at the hearing for proof of the truth of their contents. [ 59 ] As to the admissibility of the DVD of a 2008 incident at the Saskatchewan Penitentiary, its relevance to these proceedings is unknown at present.

Relevance is, of course the first threshold of admissibility, and the Crown has candidly indicated that without the viva voce testimony of one of the Crown witnesses it proposes to call on the Application, the DVD cannot be related to Mr. Toulejour, nor he to it. Certainly the purported affidavits which accompany the DVD make no reference to the specific contents of the recording such as to satisfy that those contents are relevant to the Application. I do not accept the submission of Crown counsel that because those purported affidavits bear a Style of Cause which names Mr.

Toulejour and recites (incorrectly) the Information number which launched these proceedings, that renders the DVD relevant without more. [ 60 ] Separate from the matter of relevance, the same problems as to the admissibility of the DVD under CEA s. 30 exist as they did for the warrant expiry date package, due to the insufficiency of the accompanying affidavits. Those fatal deficiencies render this proposed documentary evidence inadmissible as well.

However, once again in case I am in error with that conclusion, I will proceed with the analysis as though the affidavits were sufficient and proper. [ 61 ] The purported affidavits satisfy the requirements of CEA s. 30 for the admissibility of a business record, subject to an examination of the exemptions from admissibility set out in s. 30(10). Mr. Toulejour submits that the DVD was made in contemplation of legal proceedings, since there is no purpose in recording the event other than to prove which inmates were involved and to visit consequences upon those inmates.

There is no evidence to that effect on this voir dire ; the only information about the recording of violent incidents lies in the purported affidavit of Deryk Dutchak, wherein he states that such events are “routinely” recorded.

One can enumerate a number of reasons that officials at a penitentiary might wish to record such incidents - to assist in general improved management of prisoner interactions, to harden certain trouble spots in the institution so as to prevent recurrences, to learn of specific tensions between specific inmates in order to keep them apart in the future - these are but some reasons to make the recording. If one of those reasons is to create evidence for future litigation, does that trigger the exemption in CEA s. 30(10)(a)(ii)? I find that it does.

The creation of evidence for the purposes of subsequent legal proceedings simply has to be a major reason for the making of such a recording. Thus this piece of proposed documentary evidence is also exempted from admission under CEA s. 30. [ 62 ] In my view, however, the DVD recording is not really a business record at all. This is because unlike a business record, it does not and cannot speak for itself. As the Crown concedes, viva voce evidence will be required at the hearing in order that the DVD recording become relevant. [ 63 ] Is the DVD receivable on its own under some other head of admissibility?

Under the Ares v. Venner test, many of the concerns about objectivity I expressed in relation to the warrant expiry date package are not present in the DVD. The camera and the microphone simply captured what was occurring. In doing so it offers truly the best evidence of the event, subject only to the limitations of camera angle and ability to capture sound. For the same reasons the DVD recording satisfies the twin elements of necessity and reliability under the principled exception to the hearsay rule.

At the same time, relevance of the recording to these proceedings will only be established, if at all, by the addition of viva voce evidence yet to be heard. [ 64 ] Therefore, in my opinion the DVD recording may be admissible as outlined in the preceding paragraph, but only if it can be shown by some extrinsic evidence to be relevant to this Application. I will accordingly direct that for the present it be marked as an exhibit for identification only.

[ 65 ] To review my findings, I find that the warrant expiry date package documents are inadmissible as proof of the truth of their contents, first because the accompanying affidavit materials, a prerequisite to admissibility under section 30(3) of the Canada Evidence Act , do not comply with the basic requirements of an affidavit for that purpose, and second because the documents were made in contemplation of and for the purpose of legal proceedings and are thus exempted, by operation of section 30(10)(a)(ii) of the Canada Evidence Act , from admission as business records.

The same documents are not admissible under the common law rules of evidence because they neither satisfy the requirements of the test in Ares v. Venner nor the elements of the principled exception to hearsay evidence as set out by the Supreme Court of Canada. [ 66 ] The DVD recording is inadmissible under

section 30 of the Canada Evidence Act because it too was made in contemplation of legal proceedings and because it is not a business record, but is provisionally admissible under the common law rules. It may only be marked as an exhibit for identification now, because more evidence linking the recorded incident to the Respondent will be necessary before it could potentially be shown to be relevant to the Application. [ 67 ] DATED at Meadow Lake, Saskatchewan this 18 th day of June, 2012. J.A. Nightingale, J