R. v. Howe, 2017 NSSC 199

SUPREME COURT OF Nova Scotia Citation: R. v. Howe , 2017 NSSC 199 Date: 20170802 Docket: CRH No. 441632 Registry: Halifax Between: Her Majesty the Queen v. Duayne Jamie Howe, Patrick Michael James, and David John Pearce Restriction on Publication:

Section 486.5 Judge: The Honourable Justice Peter Rosinski Heard: July 10 and 11, 2017, in Halifax, Nova Scotia Decision: August 2, 2017 Counsel: Glen Scheuer, for the Crown J. Patrick L. Atherton, for the defence (Duayne Jamie Howe) Trevor McGuigan, for the defence (Patrick Michael James) Patrick MacEwen, for the defence (David John Pearce) By the Court: Introduction [ 1 ] The individual defendants are alleged to have committed various criminal offences in 2012.

They are also charged that they committed them “for the benefit of, at the direction of, or in association with a criminal organization, to wit: the Bacchus Motorcycle Club, contrary to s. 467.12 of the Criminal Code .” [ 2 ] The Crown seeks to prove that the Bacchus Motorcycle Club chapters in Atlantic Canada are all parts of a “criminal organization” as defined in s. 467.1 of the Criminal Code . [ 3 ] To that end, the Crown intends to call evidence at trial, which will be the foundation for the expert opinion testimony of Detective Staff Sgt.

Leonard Gordon Isnor of the Ontario Provincial Police. [ 4 ] This voir dire concerns three such items that the Crown seeks to have ruled as admissible for the truth of their contents. Each makes reference to the Bacchus Motorcycle Club. The defendants oppose their admissibility. [ 5 ] The items originate from searches conducted respectively at the clubhouse of the Hells Angels South (Québec)

chapter in Saint-Basile-le-Grand, and the residence of Roberto Campagna, who was the secretary for that chapter: 1. Six pages of minutes of a meeting on February 18, 2000 held at the Nomads’ clubhouse in Sorel, Québec, entitled “HAMC East Coast Canada” (which include two pages of the Canadian Guidelines or rules for all Hells Angels chapters being 22 rules in total at that time – seized March 28, 2001; the Crown specifically seeks introduction for the truth of its contents of the following passage:

(8) We have just formed a Atlantic coalition with other MC clubs in the Maritimes. Bacchus MC (NB), Highlanders MC (NS), CHC (PEI), Cursed MC (NB). What we are trying to do with these clubs is have a meeting with their members every two months. We had our first one last month. We are teaching them to show more support and how to understand our way. The first meeting went very well.;

2. Five pages of minutes of a national meeting of Hells Angels Clubs’ representatives in Toronto on January 11, 2002 – seizedFebruary 26, 2004; the Crown specifically seeks introduction for the truth of its contents of the following: [Under the Halifax

Chapter report to the national meeting] 1-Bacchus MC from Moncton proposed for Prospect. If you Charter votes No, send the votes to Michael within 30 days. If there aren’tany No votes they will make them prospects. mmccrea@hfx.eastlink.ca. 3.

A one-page typewritten letter dated January 23, 2002 (found immediately behind the last page of the minutes in itemnumber two) also in a black binder containing a total of 151 pages of documents, from the office area at Roberto Campagna’s house –seized February 26, 2004; the Crown specifically seeks introduction for the truth of its contents of the following: Hi Mike As of January 19th Winnipeg has three new prospects Ian Grant, Dion Sterling, and Corey MacInnis “Tiny”. Also we have one newhangaround Jamie Shannon (same date).

Would you please inform the rest of East Coast at your next O.M. or whatever is convenient foryou. Thanks. Also as for the Bacchus MC our vote is 8 no and 0 yes. Love and Respect Mark HAMC Winnipeg [6] The question for the court is whether these items are admissible as exceptions to the prohibition against hearsay evidence. TheCrown suggests three bases upon which they may be ruled admissible: as “business records” under s. 30 Canada Evidence Act; as“business records” under the common law exception to the hearsay rule - Ares v.

Venner (SCC), [1970] S.C.R. 608, andits progeny; under the common law exception to the hearsay rule known as the “principled basis” for the exception –R. v. Khelawon,2006 SCC 57 , [2006] 2 S.C.R. 787. [7] I conclude that each of these three items is admissible. As such they are prima facie proof of the truth of their contents – R. v.Campbell, 2017 ONCA 209, at paras. 7-8. Credibility of the witnesses [8] On this voir dire, I heard from two officers from the Sûreté du Québec, Det. Sgt. Pierre Gravel, and Det. Sgt. Michel Grondin,who were present and received the seized items from the Québec South

chapter clubhouse on March 28, 2001, and at RobertoCampagna’s office on February 26, 2004, respectively. I also heard from Det. Staff Sgt. Leonard Isnor. [9] I am fully satisfied that each of the officers presented their evidence in an honest and reliable manner. I accept their evidence.Specifically, in relation to Sgt. Isnor, I was very impressed by the depth and breadth of his direct and indirect knowledge regarding theHells Angels Motorcycle Club. He was qualified “to give opinion evidence in relation to the Hells Angels Motorcycle Club in thefollowing areas: 1.

The general nature and characteristics of the club; 2. The history, organization, structure and hierarchy of the club; 3. The culture, values and practices of the clubs – including the main purposes/activities of the club; and 4. The language and symbols of the club. [10] Sgt. Isnor has been investigating so-called “outlaw motorcycle gangs” since 1995, and the Hells Angels in Ontario specificallysince the patching over to Hells Angels of numerous existing Motorcycle Clubs in December 2000, though he indicated they hadpreviously had a “huge” indirect influence on the various 1% Motorcycle Clubs within Ontario.

He had substantial and regularinvolvement with investigations regarding the Hells Angels across Canada, including significant contacts with the Québec police. He hassupervised every Hells Angels investigation in Ontario since 2007, until he took over a national supervisory role in April 2015. The issues Why these three items are admissible under the “business records” hearsay exception in s. 30, Canada Evidence Act [11] The defendants argue that the court should not admit the documents on this basis because: 1.

The documents have not been authenticated by any person present during those meetings or who could authenticate the

January 23, 2002, letter; therefore, since the documents are not demonstrably originals, they must be considered copies and thepreconditions in s. 30(3), CEA, have not been met; 2. Section 30(1), CEA, limits which business records can be admitted into evidence under this

section to those “where oralevidence in respect of a matter would be admissible in a legal proceeding” and therefore the court must be satisfied that the documentsare sufficiently relevant, material [collectively probative] and not excluded by some other legal rule (including exercising a court’sresidual discretion which considers the documents’ probative value versus the prejudicial effect on the fair trial rights of thedefendants’); 3. Generally the documents are not “business records”, and specifically the January 23, 2002 letter is certainly not; 4.

No witness has been presented who, from direct experience with the documents, can qualify the documents as “businessrecords”. i-Have the documents been authenticated as originals/do they qualify as “business records”? [12] Sgt. Isnor testified about the importance of minutes of meetings to the Hells Angels. He also confirmed that they were a sourceof very valuable information to law enforcement personnel. He has reviewed between hundreds and thousands of minutes of meetings ofthe Hells Angels throughout his career.

At present, worldwide, there are approximately 6000 full members of the Hells Angels and 554chapters. There are 450 members in Canada. While these numbers may have been lesser in the years 2000 – 2004, and even in 2012, thestructure of the Hells Angels has remained the same: they have the following hierarchical levels: world; national; regional; and local –each individual clubhouse or charter/chapter.

He stated that record-keeping is very important because the Hells Angels demandhierarchical compliance from all its of various levels and that if there is not compliance any violators face the consequence of revocationof their charter by the Hells Angels penultimate “world” offices located in Oakland, California, USA. The Hells Angels are incorporated.Those offices are the only ones that can issue or revoke charters.

There is an expectation and obligation to create minutes of meetings,and to disseminate those minutes to individual members at the various levels so they may remain informed, since the organizationoperates on a “one man – one vote” basis. [13] The jurisprudence confirms that s 30 “does not require that an attestation that the document is made in the usual and ordinarycourse, of business or activity of the business or agency concerned, be made by someone who knows that from personal experience andwho was involved in the process of producing the document… No requirement is set out in the Act for personal experience of the affiantwith the process of producing the document.”- R. v.

Oberlander, (FC), [1998] FCJ No. 1380 (TD) per MacKay J atparas 31-32; see also paras. 70-71 in R. v. Ramratte, 2015 ONCJ 567 per Bacchus J; R v Tennina, [2010] OJ No. 6244 (SC) per Quinlan J. [14] In R. v. Wilcox, 2001 NSCA 45, Cromwell J.A (as he then was) stated at paras. 53-56, in relation to s. 30: Next, its admissibility under s. 30 of the Canada Evidence Act must be considered.… [That section] of the act simply requires that therecord be made “in the usual and ordinary course of business”. Unlike the common law exception, s 30 does not require the maker of therecord to be under a duty to make it.

Unlike several of the provincial evidence act provisions, there is no requirement that it be in theusual and ordinary course of business to make such a record.… The brief discussion of s. 30 in R. v.

Zundel, (1987) (ON CA), 35 DLR (4th) 338 (Ont CA) at 403 – 405 is consistent with the view that s. 30 applies only to documents ordinarily made inthe business. . . . [15] It is clear that the maker of the “record” is not required to be present before the record can be admitted as evidence under s. 30Canada Evidence Act. [16] I am satisfied that a “record” can be proved to be so on a balance of probabilities, in any manner that any other document couldbe proved. Thus, I am satisfied, having accepted Sgt.

Isnor’s expert opinion about the organizational structure of the Hells Angels andtheir requirements regarding minutes of meetings etc., in combination with the facts that the documents were seized from what wasclearly a Hells Angels South Québec

Chapter secretary’s business related documents binder, and earlier from the business office of theirclubhouse, that these minutes are a “record” of the business that is Hells Angels Motorcycle Club. [17] “Record” is defined in s. 30(12) of the Canada Evidence Act as follows: Includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded,stored or reproduced, and, except for the purposes of subsections 3 and 4, any copy or transcript admitted in evidence under this sectionpursuant to subsection 3 or 4. [18] The Act does not define what is an “original”, though it does provide in s. 30(3) for “copies”: Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the recordaccompanied by two documents, one that is made by a person who states why it is not possible or reasonably practicable to produce therecord and one that sets out the source from which the copy was made, that attests to the copy’s authenticity and that is made by theperson who made the copy, is admissible in evidence under this

section in the same manner as if it were the original of the record if eachdocument is… [by either an affidavit or certification or other statement]. [19] Subsection 3 aims to present the court with a “true copy” of an extant original, when it is not possible or reasonably practicableto produce an original. [20] Sgt. Isnor testified that, and I accept, the Hells Angels organization obligates its members not to cooperate with any policeinvestigation or Crown prosecution – going so far as to prohibit individual members from discussing anything with law enforcement

personnel without having another member present. Thus, not only is the maker of the original record not known, but even if known, theycould not be expected to assist with production of an “original” or to confirm why the original is unavailable and that what is before thecourt is a “true copy”. [21] I accept the evidence of Sgt.

Isnor, and I conclude that the minutes of the Canadian meeting and the East Coast Canada meetingare a “record made in the usual and ordinary course of business” of the Hells Angels, and although not required by the Canada EvidenceAct, there is a duty upon the responsible secretary at each level of meetings (namely world, national, regional and local) to create andmaintain true copies of those minutes for dissemination to individual members or other authorized parties. [22] In the age of the photocopier, and specifically around the time of these seizures, I infer it would be virtually impossible toascertain which of two identical documents was the “original” and which was the “copy”. [23] In the circumstances of this case, I accept that the documents seized from the clubhouse, and from the office of Mr.

Campagnawere each originals or true copies of the “record” as contemplated by s. 30 of the Canada Evidence Act. [24] I accept that the Hells Angels Motorcycle Club, which is an incorporated entity, falls within the definition of “business”, and byextension so do its local chapters which are individually granted “charters”. [25] I observe specifically that the Québec South Chapter, from which these documents were seized, was itself an incorporatedentity: Les Princes de l’Autoroute Inc.

The seized 151-page binder from secretary Roberto Campagna’s office, contained those corporatedocuments, financial statements, Revenue Canada and Revenue Québec documentation, mortgage and renewal documents, as well asbills paid. These are all important documents, found together. The location therein of the minutes from February 18, 2000, and January11, 2002, including the January 23, 2002, letter, suggest those documents are also important to the organization. I observe that theminutes of January 11, 2002, suggest a vote should be taken within thirty days regarding the Prospect status of the Bacchus MC.

TheJanuary 23, 2002, letter falls within the 30 days suggested and references the vote of the Winnipeg chapter. As such, the letter followedin the admissibility slipstream of the January 11, 2002, minutes.

It is also properly considered a business record under s. 30 CEA. ii-Would oral evidence in respect of the matter otherwise be admissible in a legal proceeding? [26] It is suggested that these documents are insufficiently relevant and material [collectively not probative] and that they should beexcluded exercising the court’s residual discretion, which obligates it to consider the probative value of proffered evidence in contrast tothe prejudicial effect on the fair trial rights of the defendants.

The defendants rely on the fact that they have no opportunity to cross-examine the maker of these documents or any other members of the Hells Angels organization. [27] Strictly speaking, relevance requires both logical and legal relevance. Logical relevance exists if there is an apparentrelationship between the evidence and the fact it is said to support. Legal relevance asks whether the evidence though logically relevant,pursuant to a cost-benefit analysis should nevertheless be excluded.

The cost-benefit analysis considers whether the probative value ofthat evidence is outweighed by the prejudicial effect on the fair trial rights of the defendants, whether it involves disproportionate use oftime given its probative value, or if there is a realistic prospect that it will be misleading to the trier of fact, or cause the trier of fact to bein danger of misusing the evidence, out of proportion to its reliability. – see, e.g. R. v. Watson, (1986) (ON CA), 108CCC (3d) 310 (Ont. CA), per Doherty J.A.; R. v. Mohan, (SCC), [1994] 2 S.C.R. 9. [28] However, in assessing relevance, context is critical.

The Crown alleges that in 2012, the Bacchus MC was a criminalorganization. That term is defined in s. 467.1 of the Criminal Code: “Criminal organization” means a group, however organized, that (

a) is composed of three or more persons in or outside Canada; and (

b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed,would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of thepersons who constitute the group.

It does not include a group of persons that forms randomly for the immediate commission of a single offence. “Serious offence” means an indictable offence under this or any other Act of Parliament for which the maximum punishment isimprisonment for five years or more, or another offence that is prescribed by regulation. [29] As Justice Fish stated, commenting on the definition of “criminal organization” in R. v.

Venneri, 2012 SCC 33 , [2012]2 S.C.R. 211: 35 The structured nature of targeted criminal organizations also sets them apart from criminal conspiracies: see Sharifi, at para. 39.Stripped of the features of continuity and structure, "organized crime" simply becomes all serious crime committed by a group of three ormore persons for a material benefit. Parliament has already criminalized that activity through the offences of conspiracy, aiding andabetting, and the "common intention" provisions of the Code (see, e.g., ss. 21 and 465(1)).

The increased penalties and stigma associatedwith the organized crime regime distinguish it from these offences. 36 Working collectively rather than alone carries with it advantages to criminals who form or join organized groups of like-minded felons. Organized criminal entities thrive and expand their reach by developing specializations and dividing labouraccordingly; fostering trust and loyalty within the organization; sharing customers, financial resources, and insider knowledge;and, in some circumstances, developing a reputation for violence.

A group that operates with even a minimal degree of organizationover a period of time is bound to capitalize on these advantages and acquire a level of sophistication and expertise that poses an enhancedthreat to the surrounding community.

37 Counsel for Venneri suggests that the criteria outlined in R. v. Lindsay, (Ont. S.C.J.), and consideredin Battista, should be accepted by this Court as a means by which to gauge whether a given group has the necessary attributes of acriminal organization (see paras. 854-62).

The "common" characteristics of criminal organizations identified in Lindsay may well be"common" to highly sophisticated criminal entities, such as notorious motorcycle gangs, Colombian drug cartels, and American "crimefamilies". 38 Care must be taken, however, not to transform the shared attributes of one type of criminal organization into a "checklist"that needs to be satisfied in every case.

None of these attributes are explicitly required by the Code, and a group that lacks them all maynonetheless satisfy the statutory definition of "criminal organization". 39 The difficulty and disadvantage of setting out what may be perceived as a prescriptive "checklist" is aptly described by AlexandraOrlova and James Moore in the following passage: It is notable that while the definition of an "organized criminal group" refers to some elements that characterize such groups, otherequally valid elements, frequently discussed in legal and academic debates, are omitted.

For example, no references are made to thepotential for the utilization of violence and corruption, which are arguably some of the most commonly utilized methods by organizedcriminal entities. In part, the omissions are understandable as it is rather difficult and arguably not that useful to create a "check-list"definition of organized crime that incorporates all possible elements of organized criminal groups.

The challenge of creating acomprehensive "check-list" stems in part from the lack of consistency between organized criminal groups as well as their constantlychanging and evolving nature as a response to changes in legitimate societal structures. [Emphasis added; footnotes omitted.] ("'Umbrellas' or 'Building Blocks'?: Defining International Terrorism and Transnational Organized Crime in International Law" (2005),27 Hous. J.

Int'l L. 267, at p. 284) 40 It is preferable by far to focus on the goal of the legislation, which is to identify and undermine groups of three or morepersons that pose an elevated threat to society due to the ongoing and organized association of their members.

All evidencerelevant to this determination must be considered in applying the definition of "criminal organization" adopted by Parliament.Groups of individuals that operate on an ad hoc basis with little or no organization cannot be said to pose the type of increased riskcontemplated by the regime. 41 Courts must not limit the scope of the provision to the stereotypical model of organized crime -- that is, to the highly sophisticated,hierarchical and monopolistic model.

Some criminal entities that do not fit the conventional paradigm of organized crime maynonetheless, on account of their cohesiveness and endurance, pose the type of heightened threat contemplated by the legislativescheme. [my emphasis added] [30] The Crown seeks to introduce these minutes and the letter for the truth of their contents. It says they will be relied upon by Sgt.Isnor, if he is qualified to give opinion evidence at the trial proper, as foundational evidence for his opinion that the Bacchus MC was acriminal organization in 2012.

The Crown has proposed to qualify him at trial as an expert in relation to the Bacchus MC in thefollowing manner: As an expert in the area of organized crime – outlaw motorcycle gangs, able to give opinion evidence in relation to the Hells Angelsmotorcycle Club and the Bacchus motorcycle Club in the following areas: 1-the general nature and characteristics of the clubs; 2-the history, organization, structure, and hierarchy of the clubs; 3-the culture, values and practices of the clubs (including the main purposes/activities of the clubs); and 4-the language and symbols of the clubs. [31] As Justice Beveridge stated in discussing expert opinion evidence in R. v.

Keats, 2016 NSCA 94: 82 I have no doubt about the soundness of the proposition that an expert can rely on matters or sources within his or her field ofexpertise in the profferring of their opinion. But in the circumstances of this case, it does not make Ms. Janssens' observations admissiblevia Ms. Murphy's reports. I will explain. 83 In Lavallee, Justice Wilson, drawing on R. v. Abbey, summarized the principles that govern the admissibility and weight of expertopinion where the expert has relied on information not otherwise proven in court (para. 66): 1.

An expert opinion is admissible if relevant, even if it is based on second-hand evidence. 2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidencegoing to the existence of the facts on which the opinion is based. 3. Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion. 4.

Before any weight can be given to an expert's opinion, the facts upon which the opinion is based must be found to exist. 84 Justice Sopinka, in a concurring judgment, expressed concern over the apparent contradiction in saying an expert's opinion isadmissible, but is entitled to no weight. He drew a distinction between evidence that an expert obtains and acts upon within therealm of their expertise, and evidence that an expert gets from someone, such as a party to the litigation.

The lack of independentproof of the former type of information or evidence need not sap the weight of the opinion; but with the latter, absence of proof

may obliterate the weight of the opinion. He wrote: [82] The resolution of the contradiction inherent in Abbey, and the answer to the criticism Abbey has drawn, is to be found in the practicaldistinction between evidence that an expert obtains and acts upon within the scope of his or her expertise (as in City of St. John), andevidence that an expert obtains from a party to litigation touching a matter directly in issue (as in Abbey). [83] In the former instance, an expert arrives at an opinion on the basis of forms of enquiry and practice that are accepted means ofdecision within that expertise.

A physician, for example, daily determines questions of immense importance on the basis of theobservations of colleagues, often in the form of second- or third-hand hearsay. For a court to accord no weight to, or to exclude, this sortof professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guaranteesof trustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsayevidence in general, exemplified in Ares v. Venner, (SCC), [1970] S.C.R. 608. In R. v.

Jordan (1984), (BC CA), 39 C.R. (3d) 50 (B.C.C.A.), a case concerning an expert's evaluation of the chemical composition of an alleged heroinspecimen, Anderson J.A. held, and I respectfully agree, that Abbey does not apply in such circumstances. (See also R. v. Zundel (1987), (ON CA), 56 C.R. (3d) 1 (Ont.

C.A.), at p. 52, where the court recognized an expert opinion based upon evidence "...of a general nature which is widely [page 900] used and acknowledged as reliable by experts in that field.") [84] Where, however, the information upon which an expert forms his or her opinion comes from the mouth of a party to the litigation,or from any other source that is inherently suspect, a court ought to require independent proof of that information. The lack of such proofwill, consistent with Abbey, have a direct effect on the weight to be given to the opinion, perhaps to the vanishing point.

But it must berecognized that it will only be very rarely that an expert's opinion is entirely based upon such information, with no independent proof ofany of it. Where an expert's opinion is based in part upon suspect information and in part upon either admitted facts or facts sought to beproved, the matter is purely one of weight.

In this respect, I agree with the statement of Wilson J. at p. 896, as applied to circumstancessuch as those in the present case: ... as long as there is some admissible evidence to establish the foundation for the expert's opinion, the trial judge cannot subsequentlyinstruct the jury to completely ignore the testimony. The judge must, of course, warn the jury that the more the expert relies on facts notproved in evidence the less weight the jury may attribute to the opinion. 85 In R. v. B.(S.A.), supra. paternity testing by DNA evidence was crucial to the Crown's case.

Much of the litigation centered on theconstitutional challenge to the DNA warrant provisions. There was also an issue about the Crown's DNA expert. She testified about thetest results of the accused's DNA to that of the child of the complainant. There were nine samples. Two were used as controls. Analysiswas conducted on the remaining seven. One was damaged. Five samples were consistent with the appellant being the father, with itbeing ten million times more likely he was the father than another random Canadian male. 86 One sample was inconsistent. The expert opined that this was a mutation.

They are well-documented in paternity testing, andinternational guidelines provide that at least two exclusions have to be found before "parental exclusion can be determined". She opinedit was forensically significant that five samples showed a match. 87 Berger J.A., in dissent in the Alberta Court of Appeal, would have ordered a new trial on the basis that there was no independentproof that the inconsistent sample was a mutation. 88 Justice Arbour wrote the unanimous reasons for judgment in the Supreme Court.

She rejected the proposition that the expertcould not rely on the international guidelines for her opinion that the incongruent result was a mutation. In doing so, she referred withapproval to Justice Sopinka's reasoning in Lavallee: [62] The appellant submits that the trial judge ought to have given no weight to the DNA expert's evidence, as it relied on an unprovenassumption that the non-matching test sample was a mutation. Sopinka J. in his concurring judgment in R. v.

Lavallee, (SCC), [1990] 1 S.C.R. 852, at p. 899, stressed that courts ought to distinguish between evidence that an expert obtains and acts uponwithin the scope of his or her expertise, and evidence that an expert obtains from a party to the litigation touching a matter directly inissue. He suggested that where the expert relies on the former type of "unproven" evidence, the weight of the expert opinion need not bediscounted. [63] In my view, it is clear that the expert's reliance on the international guidelines was reliance on information obtained and acted uponwithin the scope of her expertise.

It was entirely open to the appellant to challenge the expert on that issue. Absent such a challenge, theexpert was entitled to refer to the sources within her field of expertise to explain and support her conclusions. Berger J.A., dissenting atthe Court of Appeal, is correct that the record offers little information about the international guidelines referred to by the DNA expert(para. 131). However, her expert evidence was tested according to the normal processes of the adversarial system. Dr.

Szakacs was cross-examined by the defence, and the trial judge was satisfied that the current standards in technology and competence had been met. It wasopen to the trial judge to give the opinion of the expert the weight that he considered appropriate and there is no basis upon which thisCourt could interfere with his assessment of that evidence. The trial judge was alive to his obligation to weigh carefully andappropriately the evidence tendered by the DNA expert. ... 89 These principles are relied upon in Terceira, Worrall, and Prosser. The law appears to be the same in the United Kingdom(Kennedy v.

Cordia (Services) LLP, supra. In all of these, the expert relied upon the work of others, or knowledge, within the expert'sfield. I am not satisfied that is the case here. [32] Bearing in mind all the foregoing, I am satisfied that the proffered documents here would otherwise be receivable as oralevidence at a trial – that is, the evidence is sufficiently relevant and material, and that it should not be excluded based on a cost of benefitanalysis.

I note that the documents here are not proffered to directly establish the commission of a criminal offence, but rather indirectlyto provide an evidentiary foundation for the expert opinion, that the Bacchus MC is a criminal organization. Why the documents are admissible under the common law “business records” exception

[33] Again, as Justice Beveridge stated in Keats: 110 Mr. Ewart summarized the common law rule following Ares v. Venner as follows: ...the modern rule can be said to make admissible a record containing (

i) an original entry (ii) made contemporaneously (iii) in theroutine (iv) of business (

v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed orformulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent. Read in this way, the ruleafter Ares does reflect a more modern, realistic approach for the common law to take towards business duty records. 111 This clear articulation of the common law test was approved in R. v. Monkhouse, 1987 ABCA 227 , [1988] 1 W.W.R. 725 (Alta. C.A .)1 and by Cromwell J.A, as he then was in R. v.

Wilcox, 2001 NSCA 45. … 115 Furthermore, there is no shortage of authorities that have clearly turned to the common law to admit business records that failthe CEA requirements (see: R. v. Sunila (1986), (NS SC), 73 N.S.R. (2d) 308 (N.S.S.C.); R.v. Monkhouse, supra.; Éthier v. Royal Canadian Mounted Police Commissioner, [1993] F.C.J. No. 186 (C.A.); R. v. Marini, [2006] O.J.No. 4057; R. v. Crate, 2012 ABCA 144). [34] In R. v. Sunila, (1986) (NS SC), 73 NSR (2d) 308, Justice A.

MacIntosh stated: The third avenue of approach suggested by Crown counsel in this issue is a consideration of the principles enunciated by the SupremeCourt of Canada in Ares v. Venner reported in 1970, 14 D.L.R. (3d), page 4; in other words, dealing with the common law approach tobusiness documents as an exception to the hearsay rule. Documents offered in evidence as proof of their contents are hearsay and canonly be admitted as an exception to the hearsay rule. Ewart, the author of Documentary Evidence In Canada discusses the impact of Aresv. Venner at page 13.

He states as follows: "Care must be taken to avoid confusing the existence of established standards for admitting documents into evidence as exceptions to thehearsay rule, with the perception that the exceptions themselves have been finally and definitively determined. Although this is theposition in England, the Supreme Court of Canada has expressly rejected that view in favour of the opinion that courts in Canada are freeto develop new exceptions.

Accordingly, the courts can modify established criteria and can create entirely new criteria for theadmissibility of all forms of evidence, including documentary evidence. . . . The discretion thus given to Canadian courts is not entirely unstructured. As Wigmore (Wigmore on Evidence) so carefully shows, mostof the exceptions to the hearsay rule which have been created over several centuries can be found to have been constructed on twofundamental principles: necessity, and a circumstantial guarantee of trustworthiness.

Of these two fundamental standards, the second isby far the more compelling: a court can feel relatively comfortable in breaking new ground if it has been satisfied that the circumstancesof the document's creation provide an adequate substitute for the traditional safeguard of cross-examination. The proponent of adocument should seek to persuade the court that the document, because of the circumstances of its creation, is inherently reliable.

If thisis done, then the necessity doctrine can likely be satisfied simply by demonstrating that there is no other equally convenient way to putbefore the court the information in question." Hall, J., who wrote the decision in Ares v. Venner, rejected the position in England as set forth in Myers v. Director of PublicProsecutions, reported in [1965] A.C. 1001, and adopted the minority position which advocated the extension of the hearsay rule byjudicial decision.

He concluded, and I quote: Although the views of Lords Donovan and Pearce are those of the minority in the Myers case, I am of opinion that this Court shouldadopt and follow the minority view rather than resort to saying in effect: This judge-made law needs to be restated to meet modernconditions, but we must leave it to Parliament and the ten legislatures to do the job'.

Hospital records, including nurses' notes, made contemporaneously by someone having a personal knowledge of the matters then beingrecorded and under a duty to make the entry or record should be received in evidence as prima facie proof of the facts stated therein. Thisshould, in no way, preclude a party wishing to challenge the accuracy of the records or entries from doing so. Authority for the proposition that Ares v.

Venner is not confined to hospital records is found in the Setak case I mentioned before,where Griffiths, J. states at page 646: Although the statement refers only to hospital records it may be inferred that this decision settles the law applicable to records of otherbusinesses made in similar circumstances. Pursuant to Ares v.

Venner there are three criteria of admissibility: 1) The record or entry must have been made contemporaneously with the event recorded; 2) The record must be made by someone with personal knowledge of the matters; and 3) The record must be made by someone under duty to make them. [35] Regarding the duty to make the record, Justice Cromwell (as he then was) observed in Wilcox:

51 The duty to maintain the record was thought by the common law to be one of the circumstantial guarantees of the document's trustworthiness. As Sopinka, Lederman and Bryant put it: "...[a business record] was said to possess a circumstantial guarantee of truth based upon the assumption that a declarant would fear censure and dismissal should an employer discover an inaccuracy in the statement.": John Sopinka, Sidney N. Lederman and Alan W.

Bryant, The Law of Evidence in Canada , 2d ed. (Toronto: Butterworths, 1999) at pp. 211 - 212. [ 36 ] I accept the evidence that the Hells Angels are a secretive organization, and if involved in criminality, will not likely refer to those circumstances expressly in the minutes of their meetings, such that it may be said the minutes are likely an incomplete picture of all the business that takes place at such meetings. However insofar as the non-criminal organizational aspects are concerned, I am satisfied that those concerns do not undermine the reliability of what those items that are recorded in the minutes.

The organization relies on the accuracy of these minutes. It demands that they be created, maintained, and disseminated to its members.

As noted earlier, in the present circumstances this is tantamount to a duty to create, maintain, and disseminate these documents. [ 37 ] Therefore, keeping in mind that courts have used a flexible and purposive approach to such common-law doctrines, on examination of the common law “business records” exception criteria I find as follows: 1-the minutes, constitute an original or true copy; 2-the minutes would have been made contemporaneously with the meeting that document purports to concern; 3-the minutes were made in the usual and ordinary course of the business; 4-the Hells Angels Motorcycle Club is a “business”; 5-the recorder (secretary) would have had personal knowledge of the items recorded as a result of being present; 6-the recorder (secretary) had a duty to make the records, and to disseminate them; 7- the recorder had no motive to misrepresent the items recorded. [ 38 ] Bearing in mind all of the foregoing, I am satisfied that the minutes of the meetings (including the letter) fall within the common law “business records” exception to the hearsay rule, and they should not be excluded on the basis of a cost-benefit analysis.

Under this analysis as well, the contents are deemed to be prima facie true. Why the documents are admissible under the principled exception to the hearsay rule [ 39 ] Very recently, I have set out the generally applicable principles regarding the principled exception to hearsay: R. v. Howe , 2017 NSSC 177 . Since then, the Supreme Court of Canada released its decision in R. v. Bradshaw , 2017 SCC 35 . In that case, two people were shot to death. Mr. [T] initially admitted he shot both victims, then indicated that he had only shot one of the victims and that Mr. Bradshaw had shot the other.

Mr. [T] was arrested and later performed a re-enactment of the murders implicating Mr. Bradshaw. Mr. [T] pled guilty to second-degree murder, but refused to give sworn testimony at Mr. Bradshaw’s trial. The Crown successfully sought to have his video re-enactment presented as evidence to the jury using the principled exception to the hearsay rule. He was convicted of two counts of first-degree murder. Both a majority of Court of Appeal and the Supreme Court of Canada agreed a new trial was required.

Vigorous dissents were registered by Moldaver and Côté JJ. [ 40 ] Justice Karakatsanis, speaking for the majority of five, put the issue as follows (para. 3): “when can a trial judge rely on corroborative evidence to conclude that the threshold reliability of the hearsay statement is established?” She answered (para. 4): In my view, corroborative evidence may be used to assess threshold reliability if it overcomes the specific hearsay dangers presented by the statement.

These dangers may be overcome on the basis of corroborative evidence if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement.

The material aspects are those relied on by the moving party for the truth of their contents. [ 41 ] She concluded that, while the trial judge relied significantly on the existence of corroborative evidence, that evidence did not “show that the only likely explanation was that “Mr. [T] was truthful about Bradshaw’s involvement in the murders.

It did not substantially negate the possibility that Mr. [T] had lied about Bradshaw’s participation in the murders.” She reiterated that (paras. 26- 32): To determine whether the hearsay statement is admissible, the trial judge assesses the statement’s threshold reliability… [threshold reliability] is established when the hearsay “is sufficiently reliable to overcome the dangers arising from the difficulty of testing it”… [which] arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact… [and] relate to the difficulties of assessing the declarant’s perception, memory, narration, or sincerity and should be defined with precision to permit a realistic evaluation of whether they have been overcome.

The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability)… Procedural reliability is established when “there are adequate substitutes for testing the evidence”, given that the declarant has not “stated the evidence in court, under oath and under the scrutiny of contemporaneous cross-examination.… The substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement. …

A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy… To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement….

While the standard for substantive reliability is high [it] … does not require that reliability be established with absolute certainty… Rather the trial judge must be satisfied that the statement is “so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process”… The level of certainty required has been articulated in different ways throughout this court’s jurisprudence… [ 42 ] She went on to explain (para. 44): In my view, the rationale for the rule against hearsay and the jurisprudence of this court make clear that not all evidence that corroborates the declarant’s credibility, the accused’s guilt, or one party’s theory of the case, is of assistance in assessing threshold reliability.

A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement . If the hearsay dangers relate to the declarant’s sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or sincerity, accuracy will be the issue.

First, corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement… The focus must be on the aspect of the statement that is tendered for its truth.… … Second, at the threshold reliability stage, corroborative evidence must work in conjunction with the circumstances to overcome the specific hearsay dangers raised by the tendered statement… Thus to overcome the hearsay dangers and establish substantive reliability, corroborative evidence must show that the material aspects of the statement are unlikely to change under cross-examination….

Corroborative evidence does so if its combined effect, when considered in the circumstances of the case, shows that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement…. Otherwise, alternative explanations for the statement that could have been elicited or probed through cross-examination, and the hearsay dangers, persist. … [my emphasis added] [ 43 ] She concluded (para. 57): In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should: 1.

Identify the material aspects of the hearsay statement that are tendered for their truth; 2. Identify the specific hearsay dangers raised by those aspects of the statement in the particular circumstances of the case; 3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement; 4.

Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. [ 44 ] Justice Moldaver in his dissenting reasons summarized the impact of Bradshaw as follows (paras. 99 and 117 ): My colleague,Karakatsanis J, concludes that the trial judge erred [in admitting Mr. [T’s] re-enactment].

She reaches this conclusion on the basis of a restrictive new test that departs from the functional approach to threshold reliability which this Court has endorsed in its modern jurisprudence. … I am satisfied that the re-enactment in the present case was admissible under the third way of establishing threshold reliability [in which features of substantive and procedural reliability may, in conjunction, justify the admission of a hearsay statement- para 131].… I believe that in reaching a different conclusion, my colleague has departed from the functional approach to threshold reliability by: (1) unduly restricting the extrinsic evidence that a court can consider when assessing a statement’s substantive reliability; and (2) adopting a narrow view of the procedural safeguards available at trial that can equip the jury with the tools it needs to assess the ultimate reliability of a statement. [ 45 ] It would appear therefore that the Supreme Court has provided a nuanced refinement of the general principles applicable to the admission of hearsay statements. i - Reasonable necessity [ 46 ] No person is available to directly speak to the minutes of meetings or the January 23, 2002, letter.

I accept Sgt. Isnor’s evidence that no member of the Hells Angels could be expected to cooperate with law enforcement or testify regarding these minutes. While there

are some Hells Angels members who have become informants and likely are in the witness protection program if they are still living, itis reasonably necessary, in my opinion, to have the documents admitted by the means suggested by the Crown here, as there is noreasonable other avenue for this information to be placed before the court. ii-Threshold Reliability [47] As these are documents, and the Crown is seeking to have the court consider their contents for the truth thereof, whether thedocuments are the “best evidence” available also arises as a preliminary issue - R. v.

Betterest Vinyl Manufacturing Ltd., (1989) (BC CA), 52 CCC (3d) 441 (BCCA); Shaghaghi v. Mozaffarian, 2002 BCCA 531, at para. 22. [48] The defendants would argue that the “best evidence” of the minutes of the meeting and letter of January 23, 2002, would be theproduction of the “original” of each document and authentication by a person thereof.

While that may have been the orthodox rule in thepast, the modern rule only requires that an original (which includes true copies or duplicate originals) should be tendered, if available.When an “original” document is unavailable, exceptionally, secondary evidence is admissible to prove the document.

The court must besatisfied that an original document existed, but is unavailable: e.g. has been lost or destroyed, or is in the possession of a third party fromwhom production cannot be compelled. [49] As noted earlier, I am satisfied in the circumstances of this case, that the documents produced reflect sufficient indicia ofreliability as to their making, and there are no compelling reasons to conclude they should not be considered by the court.

I thereforeconclude this “best evidence” complaint should not prevent the court from admitting the documents. [50] Notably, this is not a case where, for example, as a result of a recanting witness’ testimony the court will be asked to comparethe witness’ out-of-court statement with the testimony in court.

If these documents were presented in a prosecution against the HellsAngels, having been found in premises occupied by the Hells Angels, they would be arguably receivable as “documents in possession”of the Hells Angels, which possession entitles the court to draw inferences about their knowledge of the contents and state of mind aboutthe transaction to which the documents relate - R. v. Caccamo, (SCC), [1976] 1 S.C.R. 786. In this case, it appears thedocuments were recognized, adopted or acted upon by the Hells Angels. Cromwell J.A. (as he then was) stated in, R. v.

Wood, 2001NSCA 38: 113 A frequently cited description of this doctrine is from M.N. Howard et al. (eds.) Phipson on Evidence (15th, 2000) at [paragraph]30-10: Documents which are, or have been, in the possession of a party will, as we have seen, generally be admissible against him as original(circumstantial) evidence to show his knowledge of their contents, his connection with, or complicity in, the transactions to which theyrelate, or his state of mind with reference thereto.

They will further be receivable against him as admissions (i.e. exceptions to the hearsayrule) to prove the truth of their contents if he has in any way recognised, adopted or acted upon them. So, as we have seen, documentswhich a party has caused to be made or knowingly used as true in a judicial proceeding to prove a particular fact, are admissible againsthim in subsequent proceedings to prove the same fact, even on behalf of strangers.

Documents furnished by persons specifically referredto for information are evidence against the referrer; though a mere general reference will not have this effect. (citations omitted) (emphasis in original) 114 There are three elements of the doctrine. First, it must be shown that the document was actually or constructively in the possessionof the accused. Second, if such possession is established, the document will be admissible to show the accused's knowledge of itscontents, his connection with and state of mind with respect to the transaction to which it relates.

Third, if it is established that theaccused has recognized, adopted or acted on the document, it becomes admissible for the truth of its contents under the admissionsexception to the hearsay rule.

The first and third of these elements are most relevant for the purposes of this appeal. [51] After a review of the Bradshaw decision, I remain aware that there are dangers that could arise from the difficulty of testing thethreshold reliability of these documents, namely: Procedural reliability (adequate substitutes for testing truth and accuracy) – as would be the case in court where witnesses testify, underoath or affirmation, or are warned about the consequences for untruthful statements, and are cross-examined.

There is no evidence thatthe person who was present was, at the time of making the “statement,” (i.e. the minutes and letter) sworn or informed about theconsequences of untruthful statements, nor are they observable by videotape or audiotape, or subject to cross-examination, such thatconcerns persist about the reliability of their creation and maintenance by the individuals who were found to have had possession thereof,including difficulties of assessing their creator’s perception, memory, narration, or sincerity; and ii.

Substantive reliability (sufficient circumstantial or evidentiary guarantees that the statement is inherentlytrustworthy) – that no witness will testify to the circumstances in which the documents were created and maintained, regarding thepossibility that they were deceitful or mistaken, though evidence that corroborates or conflicts with the documents should also beconsidered. [52] At the first stage I am satisfied more likely than not that I will be sufficiently able to evaluate the circumstances surrounding thecreation and maintenance of the documents.

I have concluded that they are “business records”, and I note there are not the concernsraised that would be if there was a recanting statement maker in this case. [53] At the second stage I must (para. 57 Bradshaw): 1. Identify the material aspects of the hearsay statement(

s) that are tendered for their truth [as noted above the Crown hasspecifically done so]; 2. Identify the specific hearsay dangers raised by those aspects of the statement(

s) in particular circumstances of the case

[is the “statement” made under circumstances which substantially negate the possibility that the maker was untruthful or mistaken – i.e. do the circumstances and any corroborative/conflicting evidence provide a rational basis to reject alternative explanations for the statement other than the maker’s truthfulness or accuracy?

No witness who was present or created the documents will be testifying, thus no one can be cross-examined thereon; this means there is no way to test the accuracy or truthfulness, or to challenge the completeness of the statements, including the meaning of the words contained in the statements; and whether there is any motivation to fabricate or lie]; 3.

Based on the circumstances and the dangers identified, consider alternative, even speculative, explanations for the statements [the Hells Angels are a secretive organization, aware that the police sometimes will seize their documentation during searches, and thus have a motivation to maintain minimal information in written form, and perhaps even purposefully maintain incorrect information]; 4.

Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. [ 54 ] These documents have been sufficiently authenticated by the evidence presented in the voir dire , and expert opinion evidence of Sgt. Isnor, as I noted above.

They are minutes of meetings of the Hells Angels Canadian Officers Meeting January 11, 2002 and of the Hells Angels East Coast Canada regional meeting February 18, 2000, as well as a letter dated January 23, 2002 from the Hells Angels Winnipeg

chapter to Michael McCrea, of the Halifax Hells Angels chapter, who was the person to be notified (by email: mmccrea@hfx.eastlink.ca) by each of the Canadian Hells Angels chapters regarding the motion that the Bacchus MC from Moncton become a Prospect club of the Hells Angels. [ 55 ] I reject the suggestion that the Hells Angels purposefully created these documents to mislead law enforcement personnel or its rivals. The documents are relatively innocuous by their nature.

The content is innocuous vis-à-vis any concerns that the release of that information would render vulnerable the Hells Angels. [ 56 ] Trial evidence that is corroborative, [in that it tends to negate the possibility that there is a rational basis to reject alternative explanations (including speculative) for the statement other than the maker’s truthfulness and accuracy therein] includes: i. Regarding the February 18, 2000 minutes that the Hells Angels had formed an Atlantic coalition with other MC clubs in the Maritimes including the Bacchus MC, Highlanders MC, CHC MC, Cursed MC: • Sgt.

Isnor noted that the reference in the February 18, 2000 meeting minutes (item 8) is consistent with his memory of events he investigated at that time. • Staff Sgt. MacQueen was with the RCMP in New Brunswick (Albert County area in particular) from 1998 to approximately 2005.

He dealt with and personally observed what he considered most of the major, “outlaw motorcycle gangs” (ie 1% three-piece patch motorcycle clubs) from central and eastern Canada within that time period, associating with the Bacchus MC: the Outlaws (Ontario), the Hells Angels (British Columbia, Ontario, Québec and Halifax), the Vagabonds (Ontario), the Para Dice Riders (Ontario), the Red Devils (Ontario), the Mariners (New Brunswick), Highlanders (Nova Scotia), the East Coast Riders (Nova Scotia), and Fore Runners (PEI).

His observations are generously corroborated by photographs taken at the Albert County Bacchus MC Clubhouse (which is the founding

chapter Bacchus MC Clubhouse) during police searches on October 7, 2005, and April 4, 2007- Exhibits 40, 42 and 43. ii. Regarding the January 11, 2002 minutes, showing the Halifax

chapter of the Hells Angels was proposing to the national Hells Angels meeting, that “Bacchus MC from Moncton proposed for Prospect”, I accept the expert evidence that the level of club associations between the Hells Angels and others favourably considered by them involve a graduation from: Hang around club, to Prospect, to patching- over to become a Hells Angels chapter. • Bacchus MC appears to have been a Hang Around

Chapter – see the Bacchus MC Albert County Christmas card photographs 40-41, 51 and 53 Exhibit 40, seized from the Albert County Clubhouse on October 7, 2005 –the front of which reads “Hells Angels Hang Around Charter” and appears to be signed by the membership inside – which in typewritten print also says “Bacchus- since August 13, 1972”, and “Hang Around since June 23, 2001”. See also a card from the Hells Angels Halifax

chapter stamp signed on behalf of all members [Wolf, Danny, Neil, Bernie, Art, Mike, Paul, and Speedy], and hand-written [Grub and Frenchie] congratulating Charlie Burrell on his wedding – photo 79 – 80, Exhibit 43. iii. Regarding the January 23, 2002, letter from Mark HAMC [which I accept has been definitively identified as an acronym for Hells Angels Motorcycle Club] to “Mike.” • I note that the Halifax

chapter membership included Mike McCrea at that time and that it was his email address (mmccrea@hfx.eastlink.ca) that was provided to other Canadian Hells Angels Clubs to register their votes thirty days after January 11, 2002, regarding Bacchus MC becoming a Prospect chapter. [ 57 ] The January 23, 2002, letter read in part: Would you please inform the rest of East Coast at your next 0M or whatever is convenient for you. Thanks. Also as for Bacchus MC our vote is 8 no and 0 yes.

[ 58 ] These items tend to corroborate that Bacchus MC was a Hells Angels Hang-around chapter, but did not progress to become a Prospect Hells Angels Chapter. Having considered other explanations, including speculative ones, I conclude the only remaining likely explanation for these documents is that the maker was truthful about them and that they are accurate in so far as the material aspects thereof are concerned. [ 59 ] Sgt. Isnor testified that, in his expert opinion, both sets of minutes bear the indicia of other Hells Angels minutes.

In all the circumstances and with his enormous reliable experience and knowledge he was satisfied that they were authentic. [ 60 ] I conclude that both sets of minutes and the January 23, 2002, letter are admissible for the truth of their contents, pursuant to the principled exception to the hearsay rule, recently reiterated in R. v. Bradshaw , 2017 SCC 35 . Furthermore, a cost-benefit analysis does not require the exclusion of this evidence. Conclusion [ 61 ] I find that these three documents are admissible for the prima facie truth of their contents. Rosinski, J.