R. v. S.J., 2011 ONCJ 26

COURT FILE No.: Toronto Region, Metro North Court DATE: 2011·01·19 Citation: R. v. S.J. , 2011 ONCJ 26 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — S.J. Before Justice Leslie Pringle Heard on January 4-7, 10-12, 17, 2011 Reasons for Judgment released on January 19, 2011 Ms. S. Reid ............................................................................................................. for the Crown Mr. S. White .................................................................................................. for the accused S.J. PRINGLE J.: Dangerous Offender Application: Ruling

(2) Admissibility of records 1. Overview [ 1 ] On January 11, 2010, I found S.J. guilty of 2 counts of criminal harassment, 3 counts of failing to comply with probation and 2 counts of uttering threats in relation to his former domestic partner, C.T., and her daughter, K.T.. The Crown has since received the Minister’s consent to bring a dangerous offender application, and that hearing is now ongoing before me. [ 2 ] During the application, the Crown sought to introduce into evidence 3 broad categories of documents: 1. B.C. probation materials (EX A – I) 2.

Ontario probation materials (EX J - N) 3. federal records (EX O – Y) [ 3 ] Within these materials was a wide spectrum of differing types of documents, from copies of court orders to notes of parole officers to copies of a police press release. [ 4 ] The Crown called 3 witnesses to identify the documents in general terms:

1. Philip Gurr, a parole officer from the Ontario Ministry of Community Safety and Correctional Services, who gave evidence regardingsome of the B.C. probation documents and also the Ontario probation materials (EX A – N); 2. April Mraud, a community parole officer from the federal Ministry of Correctional Services Canada, who identified some of her ownnotes from 1991 and also gave evidence regarding other federal records (EX O – X); 3.

Douglas Daniels, an institutional parole officer from the federal Ministry of Correctional Services Canada who was attached toWarkworth institution and who gave evidence regarding some federal records (EX P – T, and Y). [5] At my request, the Crown also provided me with information about how these documents came before the court. The defenceobjected to that information in the absence of calling evidence on the issue. [6] On behalf of S.J., Mr.

White objected to the admissibility of the documents and made the following submissions: 1. the maker of the document was not called to identify the documents (with the exception of Ms. Mraud), nor was the keeper of therecord called to explain how the document was kept.

There was no evidence how the documents were selected for production, nor whocopied them; he submitted this affected the foundation for admissibility and also affected any finding of reliability. 2. there was no basis to find it was necessary to admit the documents in this way because there was no evidence that the makers of thedocuments were not available to testify. He pointed out that the Crown could have elected to follow the procedure set out in the CanadaEvidence Act. 3. even if the requirements of necessity were met, the test of reliability was not. Mr.

White submitted that it’s not clear where some ofthe documents came from and whether the file was complete. He contended that I should not look at the documents to assess theirreliability. He further submitted that the evidence did not demonstrate with certainty that the notes in the file were madecontemporaneously with the events they described.

In some cases, a page of the document was apparently missing or the document wasnot signed, and in those instances he urged me to find that this rendered it inadmissible. [7] In a brief ruling on January 12, 2011, I advised the parties that I had reviewed my notes of the evidence and the submissions ofcounsel, as well as the crown’s factum and the case law provided. I also indicated that I had looked at the documents that were thesubject of this voir dire. [8] I advised them of my conclusion that the documents were admissible, and promised reasons for my decision shortly. These aremy reasons. 2.

General Legal Principles [9] All parties agree that both the public interest in safety and the general sentencing interest of developing the most appropriatepenalty for the offender dictate that the greatest possible range of information be available on sentencing in order to make an accurateevaluation of the danger posed by the offender: R. v. Jones, (SCC), [1994] S.C.J. No. 42 (at para.123). [10] There is also no dispute that hearsay evidence is admissible at sentence hearings if it is credible and trustworthy.

Stated in termsof the well-known “principled exception to the hearsay rule”, the evidence must be both necessary and reliable before it can be admittedin this form: R. v. James, [1999] O.J. No. 5969 (Gen.Div.). [11] However, admissibility is not determinative of the weight to be afforded to any particular document. Just because a document hasbeen admitted, does not mean that it amounts to proof beyond a reasonable doubt of any disputed aggravating facts contained within.

The defence retains the right to cross-examine the Crown witnesses about the content of a particular document, make submissionsregarding what weight it should be given, or if it wishes, to call evidence regarding a particular issue contained in a document. Withrespect to any disputed aggravating facts, the Crown must prove them beyond a reasonable doubt: James, at paras.16-19; R. v.Gardiner, (SCC), [1982] S.C.J. No. 71 (at p.26) and Jones, at para.127. 3.

Summary of the evidence 3.1 Philip Gurr [13] Philip Gurr is a probation and parole officer who has worked for the Ontario Ministry of of Community Safety and CorrectionalServices for 10 years. At present, he is an intensive supervision officer, meaning that he is responsible for a small caseload of offenderswho require a higher degree of supervision than other offenders. He also carries a caseload of offenders requiring regular, but notintensive, supervision. [14] S.J.’s file was transferred to Mr. Gurr’s caseload of offenders requiring intensive supervision in February of 2009.

He reviewedS.J.’s file of Ontario probation and parole records, and brought it to court. However, Mr. Gurr had never met with S.J. because S.J. hasbeen in custody since his arrest on the matters before me. [15] Mr. Gurr explained the duties of a parole officer and explained their responsibility to keep a record of every contact with theoffender or any person related to the offender’s file. He said there were guidelines relating to recording the kind of contact, theinformation received and what was discussed in each contact.

He explained that in current times this information was keptchronologicaly on the computer, and the computer would date-stamp the entry. Before the time of electronic management of records inOntario, probation and parole records were made on a computer Word document, or were handwritten. He testified that in his experienceparole officers did in fact record all contact relating to an offender, and explained that he relied on information from other officers andsources in the file in order to do his job. [16] Mr.

Gurr had no involvement with S.J.’s probation and parole file in British Columbia, nor had he ever worked for that Ministry. He had never seen the original documents tendered by the Crown, however at the Crown’s request he reviewed the copies of documentsthat were contained in a volume entitled “probation materials (British Columbia)”. He had no knowledge of whether they were completeor not. [17] Mr. Gurr gave testimony about Exhibits A – I simply by reading off the face of the documents.

He indicated that thesedocuments and the information in them was the type of information that he was familiar with as a parole officer in Ontario. Thisincluded a report from a Spousal Assault Counselling program which he said appeared to be similar to one in Ontario. 3.2 April Mraud [18] April Mraud is a community parole officer in the federal system, employed by Correctional Services of Canada.

She has beenwith Correctional Services for over 20 years, with the majority of her time spent as a parole officer, and some 7 years as a programofficer. [19] She was very familiar with the federal parole system, its practices and how its records were kept. She testified that theCommissioner’s Directives required that parole officers make their notes as immediately as possible, and in any event not later than oneweek after the relevant contact. She explained that this requirement was viewed as so important that a parole officer could be disciplinedif the the contact was made later than a week after contact.

She stated that in her experience this directive was taken very seriously, andshe noted that it was important because others in the system would have to rely on the notes. As she put it, the notes were expected togive “a very accurate and precise snapshot of the offender and his offence risk level, and whether it is still manageable”. [20] Ms.

Mraud stated that whenever she knew a case was being released to her for supervision, she would pull up the fileelectronically and review the material in it, including Parole Board decisions and the case records of the institutional parole officersregarding the offender’s progress and behaviour. She explained that there was also a paper file that would follow the offender if

feasible, and there could be numerous copies of the same documents reproduced in various files. Some might have signatures, others might not, depending on when in the process they had been used. [21] Prior to the electronic system, a paper file was used. [22] In 1991, Ms. Mraud became a parole officer for S.J. in Toronto, taking over from another parole officer, Joan Shea in Hamilton. Ms. Mraud identified a number of her own handwritten notes in the file, and also those of Ms. Shea. Prior to looking at the records, Ms.

Mraud did not recall S.J., but at the request of the Crown she spent approximately 6 hours reviewing all of the federal records in Exhibits O – Y. Ms. Mraud testified that she did not remember S.J. in court when she saw him, since “there has probably been 1000 offenders” since she dealt with him personally in 1991. [23] During the course of her evidence relating to S.J., Ms. Mraud made reference to numerous materials that she relied on in carrying out her responsibilities to supervise him.

These included the decision of the Parole Board, the conditions imposed upon him in the mandatory supervision certificate, a travel certificate, information from Dr. Barbaree regarding S.J.’s participation in the Sexual Behaviours Program at Warkworth, information from Dr. Langevin regarding S.J.’s attendance at counselling while on release, assesments of risk and other similar materials. Ms. Mraud stated that it was not particularly difficult to follow the notes of S.J.’s history in the federal records, and they were the types of notes that she expected to be made by those monitoring him. [24] Ms.

Mraud had not seen the federal records in Exhibits P – T or possibly Y in the course of her employment, as she explained those materials would not usually come to her but would remain at the institution. [25] Ms. Mraud testified that the data present in court came from the archived materials relating to S.J. at Correctional Services Canada. Prior to the electronic Offender Management System, any reports were dictated. Those used for decision making purposes were checked for quality control by a supervisor who then signed the document.

Not all documents required a signature or review but community assessments, progress reports, correctional plans or updates all required a quality control signature. Once the document was ready, Ms. Mraud presumed that clerks filed the documents. [26] In the electronic age, from some time in the early ‘90s, documents were entered into the Offender Management System. Ms. Mraud explained that once a document was entered on this system, it was “locked” by a quality control agent such as a supervising parole officer, and the data could not be changed.

Once a sentence was complete, the documents were all locked, and the electronic file was closed off. 3.3 Douglas Daniels [27] Mr. Daniels was also a parole officer with Correctional Services Canada, attached to Warkworth federal penitentiary as an institutional parole officer. He had been with CSC for 27 years. [28] He echoed Ms. Mraud’s evidence regarding the making of case notes as soon as possible after contact with an offender in order to keep track of what happened, to refer to the notes for follow up and to have an ongoing history of the offender’s behaviour.

He also added that in part, taking notes was a protection for the offender, to preserve his legal rights and record the foundation for reports and recommendations. He too indicated his awareness that others would review his notes and rely on them. [29] Mr. Daniels was at Warkworth penitentiary at the time that S.J. was serving his sentence there, but he did not recall S.J. or see any notes in the file that were made by him in relation to S.J.. However, he knew parole officer Patrick Kerr whose name appeared in the file, and stated that Mr.

Kerr was respected as a very thorough and conscientious officer for close to 30 years or more. He stated that Mr. Kerr was now retired. [30] Mr. Daniels was not involved in the storage, selection or copying of any of the documents before the court. However, he reviewed the documents in Exhibits P – T and Y at the Crown’s request, and presumed from his review that they came from CSC files. He testified that all the documents were recognizeable to him, that many indicated on their face that they were from Warkworth, and some were authored by people whose names he recognized from working there.

While performing his duties, he would have had access to files such as these.

[31] Mr. Daniels was asked about a name on a Warkworth form, Ron Hutchison, and said that he was no longer working there and had retired. When asked about a Mr. Parington, Mr. Daniels said he believed this parole officer was also retired. [32] All the documents in these exhibits were ones that he would expect to be in the offender’s file, and would have been made or relied on in the usual and ordinary course of the business of the institution.

There was nothing unusual or unexpected in any of S.J.’s files that he located. 3.4 Information provided by the Crown [33] At my request, the Crown provided me with information about how the documents that are the subject of this application came before the court. Ms. Reid advised that in Ontario, there is a Crown who is responsible for dangerous offender applications, Ms. Rita Zaied. Typically, requests for material in these matters are made through her or on her instructions. In this case, with respect to the B.C. probation materials, Ms.

Zaied contacted Ronald Hurt, the manager of High Risk Offender Identification in B.C. and requested from him the records that have been tendered in court. [34] In relation to the records in Ontario, there is an individual in the Ministry of Community Safety and Correctional Services to who all requests for probation records in dangerous offender applications are made. Tim Uuksulainen is the Dangerous Offender Coordinator working out of North Bay, and Ms. Zaied made a request to him and he forwarded it the Etobicoke parole office where S.J. was being supervised.

That office then forwarded the materials that were tendered in court. [35] The federal records were requested by an email sent to the CSC by Ms. Stanford, the Crown who conducted the trial in this matter. Ms. Stanford disclosed all the federal records that she received to Mr. White, and all except one has been tendered into evidence at this hearing. 4. Analysis 4.1 Necessity [36] In terms of the necessity to introduce copies of the documents, it is self-evident that in order to have provided first hand evidence from the makers of the documents, the Crown would have had to call dozens of witnesses.

In respect of the Ontario probation records alone, the Crown counted over 40 witnesses who made relevant notations on S.J.’s files. In respect of the British Columbia records, the Crown would have had to fly numerous witnesses across the country in order to testify. [37] In S.J.’s case, many of these records date back almost 20 years. Mr. Daniels testified that the parole officers who dealt with S.J. at Warkworth were retired, and Ms. Mraud acknowledged that she herself had no recollection of S.J.’s case until she reviewed the documents she had created.

She explained that she had likely supervised a thousand offenders since she dealt with S.J. personally in 1991 and she did not remember him when she saw him in court. [38] In these circumstances, there would be very little utility in having the maker of the document come to court for the purpose of cross-examination, since they would have little recollection beyond their notes in the file to provide as testimony.

Justice German recognized this in James at para.6, where she held that: Necessity means that it is difficult to obtain other evidence…because…the length of time since the reports were prepared or the forms completed is so long, and the information is of the type that would be prepared as routine and there is very little likelihood that the maker would have any recollection. [39] Mr. White acknowledged that society’s interests in sentencing had to be factored into any assessment of whether it was necessary

to produce the copies as opposed to the makers of the document. However, he contended that the Crown could have achieved the sameresult and avoided calling the makers of the documents by using the provisions of the Canada Evidence Act. [40] In some cases the Crown has introduced institutional and prison records through the Canada Evidence Act at a dangerousoffender hearing: see R. v. Gregoire, [1998] M.J. No. 447 (C.A.) at para.62. However, that option does not preclude the Crown fromrelying on the common law principles of admissibility in addition to, or in the alternative to, relying on the Act.

Indeed the common lawprinciples were relied on in addition to the Canada Evidence Act in Gregoire, and reliance on the common law is specifically permittedas an alternative to the legislation pursuant to s.30(11)(

b) of the Canada Evidence Act. In my view, the fact that the Crown did notpursue admissibility under the Act does not change the assessement of necessity at common law. [41] In this case I find that necessity is made out in part by the age of many of the documents, along with the inconvenience and lackof utility in calling the makers who would have little memory of the matter.

Even where the documents were only 5 years old or in somecases 2 years old, the circumstances of making routine notes would suggest little likelihood of specific recollection beyond the notesthemselves. [42] In addition, on the issue of necessity, Mr. White conceded that it is relevant to take into account that S.J. refused to cooperate withthe court ordered assessment of dangerousness. While that was certainly his right, the majority of the Court of Appeal in R. v. Piche,2006 ABCA 220 , [2006] A.J.

No. 836 (C.A.) (at para.7) found that where the appellant refused to co-operate with the doctor onthe assessment, both the doctor and the judge had “little choice” but to rely on previous reports in order to assess the danger he posed tosociety. [43] Taking all of these factors into account along with the Supreme Court of Canada’s recognition that the sentencing stage places astronger emphasis on societal interests and more narrowly defines the procedural protection accorded to the offender, I find thatrequirements of necessity to introduce copies of the documents as opposed to calling the makers of the records has been met here. 4.2 Was it necessary to call the keeper of the documents? [44] Mr.

White submitted that in the absence of calling the keepers of the records, there was no evidence about how the documentswere kept, how they were selected for production, who copied them or how they got before the court. If the procedures under theCanada Evidence Act had been followed, that kind of evidence would have been required by s.30(3) before copies could be admitted. [45] However, as a result of the testimony of Mr. Gurr, Ms. Mraud and Mr. Daniels, I find there was evidence about how thedocuments were kept and where they came from.

Each witness explained at some length how records were kept in the course of theirduties, and each had some knowledge of how paper records were created and kept previously, and how electronic records were createdand kept currently. While they didn’t have detailed knowledge of the record keeping procedures, the witnesses were all familiar with thekinds of documents, forms, assessments and information that were contained in the files.

In broad terms, they were able to recognize thedocuments in the files as ones used and relied on by them in the daily business of a parole officer. [46] In addition, it is obvious on reading most of the documents where they came from. For example, Exhibit C is headed “Ministy ofAttorney General, Corrections Branch, Corrections Network (Cornet) System. Supervision Order – Abbotsford Probation”. Similarly,the Ontario documents such as “Case Notes” or “Case Plans” are clearly labelled on Ministry forms, as are the federal documents. Thiscombined with the evidence of Mr. Gurr, Ms. Mraud and Mr.

Daniels made it unnecessary to call the keeper of the records to furtheridentify them. [47] Mr. White also objected to the Crown providing me with information about how the documents got before the court. However, Idon’t see anything improper about this in the context of a sentence hearing where the court can rely on credible and trustworthyinformation. Here, Ms. Reid as an officer of the court advised me that the requests for the documents were made through someone in theMinistry of the Attorney General who was specifically tasked with this responsibility and was an assistant Crown Attorney herself.

Herrequests were made to individuals in B.C. and Ontario who were responsible for providing this kind of information. I find the processwas a reliable one. [48] With respect to the issue of selecting and copying the documents, the defence is free to (and has) probed the witnesses aboutpotential missing documents. Indeed, as part of the process of cross-examining Mr. Gurr, Mr. White uncovered information relating totwo Ontario risk assessments and a related form that had not been included in the material provided to the court. These were then

disclosed to the defence and filed as Exhibits K – M. [49] Again as part of cross-examining Mr. Gurr, Mr. White put to him that anyone relying on the case notes of the institution could not be sure they had all the programing offered or taken by S.J. in the past, since the process of noting counselling taken in the institutional notes was new in the last two years or so. Mr. Gurr agreed, and also acknowledged that in such circumstances, the value of the notes was somewhat diminished. [50] I agree.

If information is missing, it may very well go to weight, and may ultimately affect the Crown’s ability to prove any aggravating facts.

This would be especially significant if, for example, S.J. offered evidence that he had indeed taken counselling that was not documented. 4.3 Reliability [51] Hearsay evidence may only be accepted if it is credible and trustworthy; that is, the evidence must be found to be reliable before it can be admitted. [52] In this case, the documents themselves offer some degree of reliability on their face, because they are generally on ministry forms, are usually dated, and often are signed or initialled. In that sense, they do have the imprimateur of officialdom.

Whether that would be enough on its own, is not something I need to decide. In conjunction with the evidence of Mr. Gurr, Ms. Mraud and Mr. Daniels, I am satisfied that the documents are sufficiently reliable for the purpose of admissibility. [53] Mr. Gurr, Ms. Mraud and Mr. Daniels were very knowledgeable witnesses regarding their duties and responsibilities as parole officers. Each had been in their respective positions for many years.

They all confirmed the importance of making accurate notes in their business, since it was understood that a parole officer’s notes would be relied upon by other colleagues and decision makers such as the Parole Board in order to assess the behaviour, progress and risk of an offender. They also explained the practice of making notes soon after contact with the offender or someone associated with his file, and in fact Ms. Mraud stated that in the federal system, failure to make timely notes could result in disciplinary action. [54] In relation to the federal documents, Ms.

Mraud also outlined a quality control system for documents used for decision making purposes such as correctional plans and community assessments. These kinds of documents were reviewed and checked for quality control by a supervisor who then signed them.

In addition, once a document was entered on the electronic system, it was “locked” by a quality control agent such as a supervising parole officer, and the data could not be changed. [55] Between them, the witnesses identified all the documents in Exhibits A – Y as being ones that would typically be found in an offender’s file, and as being ones with which they were familiar in the course of their duties.

Their evidence regarding the responsibility to create accurate records for the purpose of their jobs, combined with their general familiarity and identification of the documents in Exhibits A-Y, suggests that the documents are reliable for the purpose of admissibility. [56] Mr. White raised some particular issues that I will address briefly. [57] With respect to the “running record” of probation notes in B.C. found in Exhibit H, Mr. White pointed out that there was different handwriting on different dates, and not all of the notes were clearly initialled. However, Mr.

Gurr explained in his evidence that different probation officers might handle a file or take information relating to an offender if for example, the primary officer was away or unavailable. All the witnesses described it as commonplace to have different notations entered into the file that would form the basis for documenting, assessing and supervising an offender. Mr. Gurr recognzied the notes as being familiar in form and content to those he prepared in Ontario, and I am satisfied that they formed part of the usual and ordinary course of business of the B.C. probation office.

As such, they can be seen as reliable business records. [58] Also in the B.C. files, Mr. White identified a report from Fraser Valley Spousal Assault Program that had obviously not been prepared by the probation officer and had come from an outside agency (Exhibit I). Mr. Gurr testified that there are similar programs available in Ontario, and also noted that as a parole officer, he would refer an offender to counselling and rely on the report of the agency when he received it. Ms. Mraud made similar mention of reports in the federal system, such as that of Dr.

Langevin relating to sexual behaviour counselling taken by S.J.. I am satisfied that even though such documents were not prepared by parole or corrections officers,

they were documents and records that would be relied upon by them for the purpose of carrying out their duties. While there may be other evidence or argument relating to the weight to be attached to such reports, I am satisfied that they are reliable for the purpose of admissibility. [59] In relation to the Ontario files, Mr. White questioned Mr. Gurr’s evidence that the case notes were a complete chronological record, based on the fact that two separate reports were printed (Exhibit J, tab 2). However, Mr.

Gurr gave evidence that “RD” who requested the reports was a clerk known to him, and he said it appeared she simply requested two reports covering the entire period of the notes. I accept Mr.

Gurr’s evidence that although they were printed separately, the case notes were continuous and left nothing out during the period of March 25, 2004 to April 21, 2009. [60] In those instances where there does appear to be a missing page or signature in other documents or records, I have already indicated this is a matter that may go to weight. [61] I agree that the weight or the relevance to be afforded to some of the documents may be a matter for debate.

For example, an institutional offence report for swearing at a guard when S.J. was not allowed to heat his coffee in the microwave might have little relevance to the issue of dangerousness.

It might also be argued that a TPS news release seeking the assistance of the public in locating S.J. and warning that he was considered dangerous in that context, would be of little weight as compared an expert’s opinion in relation to dangerousness on sentencing. [62] Therefore, while a particular document might be an offical one that could be seen as generally reliable for the purpose of admissiblity, it still might not be of much value or have a great deal of relevance to the issues before me. 5.

Summary and Conclusion [63] For the reasons I have explained, I find that it is necessary to admit the copies in Exhibits A-Y in hearsay form, without calling the makers of the documents. In general, I find that the records themselves appear to be official documents or records created in the usual course of correctional business. In conjunction with the evidence of the witnesses, I find that they are reliable for the purpose of admitting them as evidence at this dangerous offender hearing. [64] However, on behalf of S.J., Mr.

White is still free to cross-examine the witnesses about particular documents on issues that may affect their weight if he chooses. He is further able to call evidence and to make submissions about the weight of the documents or about whether any disputed aggravating facts in them have been proven beyond a reasonable doubt. Released: January 19, 2011 Signed: “Justice Leslie Pringle”