Her Majesty the Queen - v. -, 2013 SKPC 36

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2013 SKPC 036 Date: March 13, 2013 Information: 24398619 Location: Nipawin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Arthur Carriere Appearing: Tom Healey For the Crown Rosanne Newman, Q.C. For the Accused INTERIM DECISION I.J. CARDINAL , J [ 1 ] The Crown has laid an Information pursuant to s. 810.2 of the Criminal Code wherein Cpl.

Brian Haswell of the RCMP swears he has reasonable grounds for believing and does believe that Arthur Carriere will commit a serious personal injury offence as defined in s. 752 of the Criminal Code and asks that Mr. Carriere be bound over by a recognizance pursuant to s. 810.2 . Mr. Carriere opposes the application and a hearing has commenced to determine whether the applicant has the requisite grounds for his belief.

The consent of the Attorney General to this application as required by s. 810.2 (1) has been filed. [ 2 ] During the course of the hearing the Crown has tendered a binder of sixteen documents, three of which have been admitted as full exhibits by agreement of counsel for Mr. Carriere:

1. Tab G: Psychological/Psychiatric Assessment Report dated August 24, 2011 by Colin Schwartz, Program Director 2. Tab O: Criminal Record of Arthur Carriere 3. Tab P: Transcript of Proceedings at Sentencing, August 25, 2010, Nipawin Provincial Court [3] Defence counsel objects to the thirteen remaining documents prepared by the Correctional Service of Canada (CSC)regarding Mr. Carriere’s performance both in the community and while incarcerated being: 1. One Preliminary Assessment Report; 2. One Criminal Profile Report 3. Two Correctional Plans; 4. Two Psychological/Psychiatric reports; 5. One Memo; and 6.

Six Assessments for Decision. [4] It is noteworthy that this is not a case where the Crown is seeking to tender a profile of the offender prepared by the policeas was done in R. v. Fontaine, 2010 SKPC 16. Nor is this a case where the Crown has proceeded by way of affidavit evidence as wasdone in R. v. Toulejour, 2012 SKPC 86 , 2012 SKPC 086. Rather, the Crown has called viva voce evidence from Joshua Beatty,a Parole Officer with CSC to testify as to all of the documents remaining to be considered into evidence. [5] Mr.

Carriere’s counsel submits these records are not admissible as they contain hearsay as well as other information which issimply repeated throughout most of the documents. Counsel argues this repetition of information is not accurate in some cases, ismisleading, or has no reliable basis. She submits much of the information was not verified nor authenticated yet is relied upon by theinstitution in conducting the risk assessment of Mr. Carriere. [6] The Crown argues that the documents are admissible as they are records made in the ordinary course of business by thosewhose job it is to record such information.

The records are relevant to the issue to be considered by the Court on the application. TheCrown relies upon s. 30 of the Canada Evidence Act, as well as the common law to support its position. [7] For the following reasons I find the documents are admissible as they are relevant, and it will be a matter as to the weight tobe attached to the information contained in those documents. LAW [8]

Section 810.2 of the Criminal Code states: 810.2

(1) Any person who fears on reasonable grounds that another person will commit a serious personal injury offence, as thatexpression is defined in

section 752, may, with the consent of the Attorney General, lay an information before a provincial court judge,whether or not the person or persons in respect of whom it is feared that the offence will be committed are named.

(2) A provincial court judge who receives an information under subsection (1) may cause the parties to appear before a provincial courtjudge.

(3) If the provincial court judge before whom the parties appear is satisfied by the evidence adduced that the informant has reasonablegrounds for the fear, the judge may order that the defendant enter into a recognizance to keep the peace and be of good behaviour for aperiod that does not exceed 12 months.

(3.1) However, if the provincial court judge is also satisfied that the defendant was convicted previously of an offence referred to in

subsection (1), the judge may order that the defendant enter into the recognizance for a period that does not exceed two years.

(4) The provincial court judge may commit the defendant to prison for a term not exceeding twelve months if the defendant fails or refuses to enter into the recognizance.

(4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant (

a) to participate in a treatment program; (

b) to wear an electronic monitoring device, if the Attorney General makes the request; (

c) to remain within a specified geographic area unless written permission to leave that area is obtained from the provincial court judge; (

d) to return to and remain at his or her place of residence at specified times; or (

e) to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance.

(5) The provincial court judge shall consider whether it is desirable, in the interests of the defendant ’ s safety or that of any other person, to prohibit the defendant from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, or all of those things. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance and specify the period during which the condition applies.

(5.1) If the provincial court judge adds a condition described in subsection (5) to a recognizance, the judge shall specify in the recognizance how the things referred to in that subsection that are in the defendant ’s possession should be surrendered, disposed of, detained, stored or dealt with and how the authorizations, licences and registration certificates that are held by the defendant should be surrendered.

(5.2) If the provincial court judge does not add a condition described in subsection (5) to a recognizance, the judge shall include in the record a statement of the reasons for not adding the condition.

(6) The provincial court judge shall consider whether it is desirable to require the defendant to report to the correctional authority of a province or to an appropriate police authority. If the judge decides that it is desirable to do so, the judge shall add that condition to the recognizance.

(7) A provincial court judge may, on application of the informant, of the Attorney General or of the defendant, vary the conditions fixed in the recognizance. (8) Subsections 810(4) and (5) apply, with such modifications as the circumstances require, to recognizances made under this section. ANALYSIS [ 9 ] Parole Officer Beatty has worked for the CSC since December 2009, where he was employed as a correctional officer before becoming a parole officer in October 2010.

Since December 2012, he has been the Acting Case Manager whose role is to help offenders become law-abiding and mitigate their risk to the public through programs and intervention. He described the process beginning with the preliminary assessment which is completed by a parole officer on admission to the institution and how such reporting progresses until the inmate is placed in the general population when a new parole officer takes over the case. [ 10 ] It is clear from the evidence of Parole Officer Beatty that the CSC documents in question are cumulative documents.

The reports are generated initially when the offender is admitted into a federal institution in Canada, wherever that may be. As the offender progresses through the initial entry process through to programs and assessments in the institution, he may come in contact with a variety of parole officers, program providers and medical professionals. Reports are prepared, summarized in some cases, and form part of this cumulative overview. [ 11 ] Information in these documents is gleaned from various sources. For example, police reports and court transcripts may be included.

Information is presented and repeated and in some cases copied identically from one report to the next. Professionals and authorized personnel within the system may add information to the reports. Mr. Beatty testified that he adds comments to the end of reports from information he has obtained from others working within the federal system or from the offender himself.

[12] Reports are prepared in order to address any gains made by the offender or to note and address areas where the offender is notperforming satisfactorily. Some reports such as the Correctional Plan Update go to community parole officers for input as to the strategyto be employed upon statutory release. Some reports, such as the Assessment for Decision may be prepared for the parole boardregarding whether full or day parole should be granted. [13] There is no question hearsay and double hearsay information is contained within these documents.

The Crown does notintend to call all of the authors of all the reports but relies upon Parole Officer Beatty to explain and tender the bulk of them intoevidence. [14]

Section 30 of the Canada Evidence Act provides certain requirements in order to have business records admitted intoevidence.

Section 30 states in part: 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 a production of the record. [15] Courts have found that reports prepared by CSC personnel are records made in the normal course of business. R. v. Johnson,2010 SKPC 71; R. v. Bird, 2010 SKPC 25; R. v. Falle, 2001 ABPC 36. [16] In R. v. Teneycke, 2008 SKQB 239, the Court was concerned with numerous reports prepared by the CSC between 1995 and2006. At paragraph 6, Madam Justice Rothery noted: [6] The Crown did not call the authors of the reports, nor did the defence seek to cross-examine them. As stated in R. v.

Falle, 2001ABPC at para. 10, this is an acceptable procedure because the reports are made in the normal course of business... [17] Madam Justice Rothery in Arthur Ross v. The Warden of Riverbend Institution et al, 2007 SKQB 232, considered anapplication by a prisoner for habeas corpus and certiorari to remove him from segregation at the Saskatchewan Penitentiary and returnhim to the Riverbend Institution. Mr. Ross objected to his correctional records being attached as exhibits to affidavits filed by therespondents to his application.

At paragraph 8, Madam Justice Rothery stated: [8] Attaching the correctional records as exhibits to the respondent’s affidavits does not offend rule 319. Furthermore, it has beendecided that correctional records are documentary evidence as defined by s. 30(1) of the Canada Evidence Act R.S.C. 1985, c.C-5 and bythe common law. This documentary evidence is an exception to the hearsay rule and admissible. See: R. v. Gregoire, (MB CA), [1998] 130 CCC (3d) 65 (N.B.C.A.). And see: R. v. Nowdlak, 2005 NUCJ 17 , [2005] Nu. J. No. 17 (NunavutC.J.). [18] As noted in R. v.

Gregoire, (MBCA) at paragraph 64 in reference to the common law evolution of theadmissibility of hospital records in Ares v. Venner, (SCC), [1970] S.C.R. 608 and the issue of the admissibility of prisonrecords: This has now developed into a well-recognized exception to the hearsay rule and is applicable to the facts of this case. All of the authorsof the documentary evidence had extensive and personal knowledge of the accused because it was part of their job to acquire suchinformation.

It was also part of their job to make reports about the accused’s activities and progress within the prison system thatbecame part of the official record for the purposes of parole and prison discipline. They are clearly admissible as an exception to thehearsay rule. [19] In R. v. Martin, (SKCA), the Court canvassed the history of hearsay evidence and s. 30 of the Canada EvidenceAct. At page 17, the Court noted:

The opening words of s. 30(6) appear to permit a consideration of weight to be made when the Court considers admissibility. But if thismeans a court must reject a record because it contains double hearsay, it places documents prepared in the ordinary course of business ina fundamentally different category than documents admitted pursuant to the common law business due to the exception. As indicated inAres, weight is an issue to be addressed after the document is accepted as evidence.

The circumstances in which the information wasgathered or the record produced, or the lack of such evidence, may affect the weight to be given to it by the trier of fact but it does notaffect its admissibility. As a general rule, documents made in the ordinary course of business are admitted to avoid the cost and inconvenience of calling therecord keeper and the maker. As a matter of necessity, the document is admitted. Proof that a document is made in the ordinary courseof business prima facie fulfills a qualification that in order for hearsay to be admitted it must be trustworthy.

Section 30 would have accomplished little if the author of the data contained in the business record had to be called to testify. Thecomplexity of modern business demands that most records will be composed of information gleaned by the maker from others. DECISION [20]

Section 810.2 of the Criminal Code is a preventative measure designed to protect the public from victimization. By entering intoa recognizance, the liberty of the defendant is restricted. As with other forms of recognizances outlined in s. 810 or 810.1, s. 810.2 doesnot create a criminal offence but seeks to prevent the commission of a criminal offence. As stated by Justice Gerein in R. v. Klein, 2011SKQB 94, at paragraph 21, with regard to s. 810: “it is preventative rather than punitive. The burden of proof rests upon the Crown andrequires proof on a balance of probabilities”.

Similar comments were made by Madame Justice Wilkinson in R. v. Loysen, 2006 SKQB290 regarding s. 810.1 applications. [21] In my opinion, the Supreme Court of Canada decision in R. v. McIvor, 2008 SCC 11 , should not be interpreted so as tomean the ordinary rules of evidence apply in s. 810.2 applications. That case involved procedural and evidentiary issues surroundingbreaches of conditional sentence orders.

Section 810.2 applications are not criminal proceedings and the defendant is not at risk of beingconvicted of a criminal offence simply by entering into the recognizance. Given the lower standard of proof in these types ofproceedings, in that the applicant only need have “reasonable grounds” for the fear, and that a judge hearing the application needs to besatisfied only on a balance of probabilities, these are not, in my opinion, true criminal proceedings.

Relaxed rules of evidence apply. [22] Even if I am mistaken and the ordinary rules of evidence apply to hearings held pursuant to s. 810.2 applications, those rulesinclude s. 30(1) of the Canada Evidence Act which permits hearsay evidence. [23] I find the records of the Correctional Service of Canada as contained in Exhibit P-1 are relevant and admissible into evidencewhether under s. 30 of the Canada Evidence Act or the common law. It remains to be determined the weight to be assigned to thosedocuments. I.J. Cardinal, J