R. v. Agrawal, 2019 ONCJ 369

CITATION: R. v. Agrawal , 2019 ONCJ 369 DATE: April 25, 2019 Information No. 18-7240-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. PRAVEEN AGRAWAL P R O C E E D I N G S A T T R I A L BEFORE THE HONOURABLE JUSTICE G. PAUL RENWICK On April 25, 2019, at BRAMPTON, Ontario APPEARANCES : D. Pyper Counsel for the Crown S. Baidwan Counsel for Praveen Agrawal R U L I N G O N V O I R D I R E RENWICK, J. (Orally): All right, I’m prepared to give my ruling.

I’ve been asked to determine whether documents known as “Special Criminal Application #11634 of 2018, between Praveen Agrawal vs State of Gujarat” are admissible in this trial, and if so, for what purpose. Counsel suggested three routes to admissibility but in submissions, appears to have abandoned any attempts to have this document made admissible under the Ontario Evidence Act . Instead, reliance is placed on

section 23 of the Canada Evidence Act and the principled exception to hearsay. Counsel states that the document is reliable as a court document in another jurisdiction. Each page of the document is stamped “High Court of Gujarat, certified copy Ahmedabad.” Necessity is claimed to be made out because the witness is likely not going to admit certain things claimed in the court documents. Reliability is met according to the defendant, because the document is stamped and certified by a court in a foreign jurisdiction. The prosecutor does not oppose the use of the document to cross-examine the complainant, but takes issue that it is admissible on either basis.

Section 23 of the Canada Evidence Act appears to bar admissibility of a document of a foreign court unless at least seven days notice has been given. Counsel for the defendant concedes that this requirement is not met. I have been given no authorities to suggest I am at liberty to ignore this statutory requirement and how I should exercise such discretion. In the circumstances, this appears to be a complete response to the question of admissibility under the Canada Evidence Act . I am not prepared to exercise any common-law authority which may exist to dispense of notice under the Canada Evidence Act .

The rule is simple and clear. Sufficient notice has not been made. This puts the prosecutor at a distinct disadvantage in terms of marshalling a response to the admissibility, probative value, or authenticity of this document. This argument for admissibility fails.

As to the principled exception, I am not satisfied on a balance of probabilities that either necessity or reliability has been made out. The witness is present. She has not denied bringing a criminal complaint against the defendant in India. It seems to me that admitting this document may devolve into an examination of the accuracy of those pleadings. This court is hardly in a position to determine the legitimacy of events alleged to have occurred outside the jurisdiction of the court. Moreover, it turns this trial into an examination of collateral issues.

Again, this would not be an appropriate use of the limited judicial resources of the court. If I am incorrect about necessity, I would not permit this document to be admitted on the basis of reliability. I note that the document is a photocopy that includes several other documents. There are hand written notations on the document, along with the apparent court exemplifications and the entire document is tied together with a red string. The numbering on the pages is hand written and at times crossed out and renumbered. I can take no comfort from the high court stamping on each page.

I do not know whether pages have been removed or added and then stamped. Cross-examination is the engine that drives the truth in court proceedings. Counsel must be given a wide latitude to explore matters of testimonial capacity, accuracy, credibility and motive. That includes asking witnesses about things where the subject matter itself may not be admissible in any other form. As long as there is a good faith basis to ask the question and the question could reveal relevant and material evidence, it ought to be permitted, barring any exclusionary rule.

While I am not convinced on a balance of probabilities that this document is admissible, it is nonetheless permissible to use the document to cross-examine Sonali Agrawal. However, I agree with the prosecutor that if the witness denies or refutes matters contained in this document, the defendant cannot otherwise use the document as proof of its contents to impeach the witness. So, on the voir dire , I’d like a copy of this document entered as Exhibit 1. Just so the record is clear. EXHIBIT NUMBER 1 : Special Criminal Application #11634 of 2018, between Praveen Agrawal vs State of Gujarat – produced and marked.

Thank you, I’ll return your original copy and that’s my ruling. Thank you.