R. v. Pettipas, 2012 NSPC 34

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Pettipas 2012 NSPC 34 Date: 20110729 Docket: 2177085 Registry: Pictou Between: Her Majesty the Queen v. Charles Jason Pettipas DECISION - VOIR DIRE Judge: The Honourable Judge Del W. Atwood Heard: July 29, 2011, in Pictou, Nova Scotia Charge: did steal $2764.22, the property of the Registry of Motor Vehicles of Nova Scotia of a value not exceeding five thousand dollars contrary to

Section 334 (

b) of the Criminal Code Counsel: T. William Gorman, for the Nova Scotia Public Prosecution Service Stephen Robertson, for the Defence [ORALLY] [ 1 ] What constitutes a business record – at least one that ’ s admissible in court? That is the question at the core of the Court ’ s decision regarding the admissibility of Voir Dire Exhibit 1 in the case of R. v. Charles Jason Pettipas , case #2177085. [ 2 ] Mr. Pettipas is charged with stealing the sum of $2,764.22 from his former employer, the Nova Scotia Registry of Motor Vehicles. The Crown proceeded by indictment within the absolute jurisdiction of this court pursuant to sub-para. 553(a)(

i) of the Code . [ 3 ] The allegation against Mr. Pettipas is clear from the narrative evidence of the Crown witnesses called thus far on the voir dire . These witnesses are senior staff members of Service Nova Scotia charged with management and audit of operations at the Registry of Motor Vehicles. This narrative evidence was presented to the court, not in proof of the truth of what was asserted by the witnesses, but simply to provide the court with background information so as to explain other evidence that the Crown sought to tender, mainly Voir Dire Exhibit 1.

[ 4 ] It is alleged that Mr. Pettipas, formerly a customer-service agent at the Registry of Motor Vehicles, MacLellan ’ s Brook branch, processed a number of cash-at-the-counter transactions for RMV customers who were seeking to renew their vehicle permits. Mr. Pettipas is accused of processing the renewals – that is, taking the customers ’ cash and issuing renewal certificates and licence-plate stickers – but then pocketing the cash and voiding, or, to use the term employed by the Crown witnesses, “ x-ing ” out the transactions, thereby deleting them from the RMV business database.

Assuming, for the sake of argument, that Mr. Pettipas was actually doing what I have just described, he would have been confronted with a problem. The registration certificates and plate stickers which Mr. Pettipas issued to these cash customers all were serial numbered; these serial numbers were assigned specifically by RMV to Mr. Pettipas ’ inventory. If a renewal transaction gets voided or “ x-ed ” out properly, nothing gets issued to the customer; there is no release of any renewal certificates or plate stickers from the customer-service agent ’ s inventory. If Mr.

Pettipas were carrying out a fraud as I have just described it, how would he account for his missing inventory when called upon to do a reconciliation of his materials? So it is that Mr. Pettipas is accused also of attempting to cover his tracks by notionally and fraudulently assigning to various other RMV transactions the serial-numbered vehicle permits and validation stickers which were issued improperly by Mr. Pettipas to the cash-paying customers he served, whose transactions he voided, and whose money he allegedly kept. The Crown assets that the house of cards came tumbling down on Mr.

Pettipas when one of his cash customers moved from Pictou County to Halifax County and went to an RMV depot there to report his relocation and get a replacement registration certificate showing his new address. This motorist was told at the counter in HRM that his vehicle registration had lapsed; this was because the renewal in MacLellan ’ s Brook was shown as voided. Of course, alarm bells began ringing once this customer produced what appeared to be a valid registration certificate, issued supposedly by Mr. Pettipas.

This summarizes the Crown ’ s theory. [ 5 ] In seeking to prove these allegations, the Crown has tendered a

summary of audited materials prepared by witness Lisa Christine Richard, an internal auditor for Service Nova Scotia, as well as some of the documents relied upon by Ms. Richard to prepare her

summary. All of these materials are included in Voir Dire Exhibit #1. Here is what Ms. Richard did in the course of her investigation. She reviewed the RMV business database and identified a number of transactions that had been processed by Mr. Pettipas; she then sequestered those transactions that were shown as having been voided by Mr. Pettipas; Ms. Richard composed a letter – more a questionnaire – which she mailed to the RMV customers who were shown in the database as having had their renewal applications voided by Mr. Pettipas; in this letter, Ms.

Richard requested that the customers/respondents verify whether they had paid by cash and whether their transactions had been completed. Ms. Richard received a number of written replies to her questionnaire. She aggregated the responses in a report. Pertinent printouts from the RMV database, the written replies Ms. Richard received in response to her questionnaire, and a spreadsheet summarization of the material collected and reviewed by Ms. Richard all form a part of Voir Dire Exhibit No. 1. [ 6 ] In arguing for the admission into evidence of the voir dire exhibit, the Crown relies expressly on

Section 30 of the Canada Evidence Act , and the decision of the Ontario Court of Appeal in R. v. Scheel. [1] Although not binding on this court, I conclude, based on its wide application – including, most recently, in the judgment of my colleague Derrick J.P.C. in R. v. Lee [2] – that the Scheel decision states the law in this area of documentary admissibility correctly, and the Crown is correct in relying on it. Mr. Pettipas objects to the admission of Voir Dire Exhibit 1, and is of the view that the exhibit does not meet the requirements for admissibility under

Section 30 of the Canada Evidence Act. [ 7 ] It is clear from Scheel , supra , that, in order for an audit

summary to be admissible, the documents relied upon in the preparation of the

summary must, themselves, be admissible. What about the letters/questionnaires sent out by Ms. Richard and the written responses contained in them? The responses provide much of the incriminating evidence in the hands of the Crown, because the they show that these customers forked over the cash to Mr. Pettipas and received renewal certificates and plate stickers in return. Ms. Richard is then able to identify entries that Mr. Pettipas made in the RMV database to the effect that the transactions for these customers were voided and no money was collected. One of the letter/questionnaires composed by Ms.

Richard was addressed to a Mr. DRL living at [identifying address information redacted]. I gather that DRL is one of the cash customers who was served by Mr. Pettipas. He is not being called as a Crown witness. I will deal with this letter as a representative example of the rest of them. [ 8 ] The Crown asserts that Ms. Richard prepared this letter/questionnaire in the course of her investigative duties as an auditor. She sent it to DRL and obtained a reply, again, in the course of her duties. In the course of her duties, Ms. Richard preserved DRL ’ s handwritten reply. Because all of this was done by Ms.

Richard in the course of her business duties, the Crown argues that the letter and the response, written, presumably, by DRL, come within the scope of

section 30 of the Canada Evidence Act , which states: Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this

section in the legal proceeding on production of the record.

[ 9 ] Defence counsel raises the objection that there is no way of being certain that the handwritten responses were composed by DRL. This, in the court ’ s view, is almost beside the point. Suppose that DRL had shown up at Ms. Richard ’ s office with his reply along with plenty of personal identification, and then provided further elaborated written responses, would this have made the document more worthy of admission into evidence? The answer is “ no ” . It is not proof of authorship that is the main issue here. [ 10 ] In my view, the second prong of the argument of defence counsel is on the money.

The issue becomes whether the letter is covered by the investigative-record exception to admissibility under para. 30(10)(

a) of the Canada Evidence Act . That paragraph states: Nothing in this

section renders admissible in evidence in any legal proceeding (

a) such part of any record as is proved to be (

i) a record made in the course of an investigation or inquiry, (ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding . . . . In doing up this letter, Ms. Richard was working as an investigator, carrying out inquiries into alleged improper and possibly criminal conduct. She identified DRL as a potential witness. She directed questions to DRL. DRL, it is supposed, answered those questions and Ms. Richard kept a record of the answers. Seen in this way, the letter to DRL and his answers do not constitute a business record.

What we have here, in reality, is a witness statement, but without the witness being called into court. This falls squarely under para. 30(10)(

a) of the Canada Evidence Act . [ 11 ] The Crown ’ s assertion that the letter be admissible as a business record, in the court ’ s view, is simply not supportable. To reason by analogy, consider the conduct of a criminal investigation by a peace officer. A peace officer is tasked in the course of his duties with investigating offences. A peace officer identifies potential witnesses, again, in the course of his duties. A peace officer conducts interviews with witnesses, still in the course of his duties.

He collects that information, often in written form, records it and preserves it, all of it, yes, in the course of his duties. No one would suggest that, in the prosecution of such a case, witness statements might be tendered by resort to the business-records-admissibility provisions of

Section 30 of the Canada Evidence Act without having to bother calling viva voce witness testimony . Of course, there might be times when previously written or recorded witness statements may be admissible in evidence, as comprehended, for example, in the decision of the Supreme Court of Canada in R. v. B. (K.G.) . [3] In order to fulfill the requirements for admissibility, witness statements must meet the test of necessity and reliability.

Necessity does not mean “ necessary to prove the Crown ’ s case. ” Necessity relates to the need to procure or present the testimony in the form of the previously written statement as the only means of liberating the evidence and presenting it before the court. [ 12 ] In this particular case, there is no evidence before the court that DRL is not available to come to court and testify. It is simply that the fact that the Crown has decided not to call him. The letter from Ms. Richard is addressed to DRL in New Glasgow, Nova Scotia, not a long distance to get a witness into court.

In the court ’ s view, the witness statement – and that, indeed, is what this so-called business record is - this witness statement, which consists of the responses to the questions posed by Ms. Richard, is not an admissible document. [ 13 ] In the court ’ s view, this is covered clearly by para. 30(10) of the Canada Evidence Act. Even if the court were to accept that the part of the letter that Ms. Richard wrote constituted a business record, the responses contained therein are not. The responses were not written by Ms.

Richard, and there is absolutely no suggestion that DRL, or whoever it was composed the responses, was under a duty to do so or did so in the ordinary course of his business. [ 14 ] With respect to the admission of that portion of Ms. Richard ’ s

summary that refers to removal of inventory, the court returns to Sheel, supra . The court is of the view that, in order for that portion of the

summary to be admissible, the documents relied upon by Ms. Richard must be before the court. Voir Dire Exhibit #1 does not contain the documents that were relied upon by Ms. Richard in preparing that portion of her

summary. Accordingly, the court is of the view that the removal-of-inventory portion of the

summary is not admissible.

[ 15 ] Additionally, the court would observe that, in relation to the documents that form Voir Dire Exhibit 1, most appear to be photocopies. I would refer particularly to the client-ownership-history documents as well as the so-called supporting documentation; that is, the copy of the vehicle permit which the court was informed was a copy from a microfilm record. Admissibility of copies is governed by

Section 30 of the Canada Evidence Act. The Canada Evidence Act provides a path for admissibility of copies where an original is not able to be produced. That is set out in Section 30(3) of the Canada Evidence Act. The court would observe that there has been no evidence presented before this court complying with that provision of the Canada Evidence Act.

Defence counsel has not waived the application of that particular provision of the Act , and the court is obligated to apply the entirety of the Act in determining the admissibility of this document. [ 16 ] Accordingly, with respect to Voir Dire Exhibit #1, the court is of the view that the portion of the Voir Dire Exhibit that consists of the letter to DRL and the handwritten responses, that whole thing would be inadmissible. With respect to the supporting documentation, the copy of the vehicle permit, the court is of the view that that document would be inadmissible.

In relation to the portion of the Voir Dire Exhibit that consists of the client general information, which, again, appears to be a copy, the Court is of the view that that ’ s inadmissible; and similarly, in relation to the folder some of the ... that portion ... sorry, the documents returned by clients which, again, would appear to be copies, the court would be of the view to the extent that it has a bearing on the case, that those documents would be inadmissible. [ 17 ] In sum, given these admissibility rulings, the court is of the view that Voir Dire Exhibit #1 is inadmissible, pretty much in its entirety, and, therefore, the court essentially is of the view that so little of the document would meet the threshold of admissibility, the court is ruling that it be inadmissible in its entirety. [ 18 ] Mr.

Gorman : Thank you, Your Honour. [ 19 ] The Court : Thank you. Yes, and closing the Voir Dire at this point and returning to the trial proper. [ 20 ] Mr. Gorman : My friend, Mr. Robertson and I need about five minutes and then we ’ ll figure out where we ’ re going from there. [ 21 ] The Court : Thank you very much. The court will take a recess for five minutes and if further time is needed, counsel ... [ 22 ] Mr. Gorman : Oh, it won ’ t take more than that. [ 23 ] The Court : Thank you very much. Court recesses: 9:56:19 a.m. Court resumes: 10:16:45 a.m. [ 24 ] The Court : Yes, Mr. Gorman? [ 25 ] Mr.

Gorman : Thank you, Your Honour. In light of your ruling, Your Honour, I ’ ve reviewed the matter with my friends, and the Crown offers no further evidence. [ 26 ] The Court : And Mr. Robertson? [ 27 ] Mr. Robertson : Motion to dismiss, Your Honour.

[28] The Court: That motion is granted. Accordingly, Mr. Pettipas, the charge against you is dismissed out of this court. That bringsto an end, Mr. Pettipas, your obligations to the court, including any release conditions, and you’re free to leave. P. C. J. [1](1978), (ON CA), 42 C.C.C. (2d) 31. [2]2011 NSPC 5 at paras 12-14. [3] (SCC), [1993] S.C.J. No. 22.at paras. 105-110.