R. v. Verde, 2012 ONCJ 368

COURT FILE No.: Oshawa Courthouse 12-RA25092 DATE: 2012·06·04 Citation: R. v. Verde , 2012 ONCJ 368 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — APOLLO ALEX VERDE Before Justice Peter J. Wright Heard on June 1, 2012 and June 4, 2012 Ruling on Application released on June 4, 2012 Ms. Tammy D’Eri ...................................................................................................... for the Crown Ms.

Kim Schofield ..................................................................... for the accused Appollo Alex Verde Wright J.: [ 1 ] This ruling involves the admissibility of copies of certified court documents - recognizance and information - by way of an Application by the Crown on notice to the defendant pursuant to s. 28 of the Canada Evidence Act ( C.E.A .) [ 2 ] The defendant is charged with obstructing a peace officer and failing to comply with recognizance (2 counts) and theft over 5000 dollars on March 30, 2012. [ 3 ] The Crown seeks to admit into evidence a certified copy of the recognizance and a certified copy of the court information to which it relates. [ 4 ] The Crown relies upon the Canada Evidence Act (C.E.A .) s. 23 and s. 28, together with a Notice of Intention to produce the subject documents, which Notice was served upon the defendant in support of its application.

The Canada Evidence Act (C.E.A.) [ 5 ] The C.E.A . s. 23 provides, in part as follows: 23.

(1) Evidence of any proceeding or record….of…any court in any province… may be given in any action…[by]…certified copy of the proceedings or record… [ 6 ] This

section provides that a certified copy of court documents can be admitted into evidence. [ 7 ] The C.E.A . s. 28 provides, in part as follows: 28.

(1) No copy of any document shall be admitted into evidence, under the authority of

section 23…on any trial unless the party intending to produce the copy has, before the trial, given to the party against whom it is intended to be produced reasonable Notice of that intention … [ 8 ]

Section 28 enacts a notice provision that applies to documentary evidence proposed for admission under s. 23 of the C.E.A . [ 9 ]

Section 28 of the C.E.A. requires reasonable notice of a party’s intention to adduce a copy as evidence under a listed provision. The Notice [ 10 ] The notice contemplated by s. 28 C.E.A . must be given to the party against whom it is intended to produce a certified

copy of the document. [ 11 ] No form of notice is required under s. 28. Nor is there any express requirement that a copy of the subject documents accompany the notice. On the other hand, reasonableness of the notice is not just a function of timing. Content, information and volume of the notice is important in determining whether the notice is, in all circumstances, reasonable. [ 12 ] The notice tendered in this case, as Exhibit A for identification purposes, was served on the defendant on April 24, 2012.

Clearly that is more than seven days prior to the commencement of the trial as required by the C.E.A . s. 28 (2). [ 13 ] The Notice reads in part as follows: TAKE NOTICE that at your trial regarding the matter of: Breach of recognizance committed between February 14/12 and March 30, 2012 The Crown will tender in evidence the following document: A certified copy of the recognizance and a certified copy of the court information or indictment to which it relates.

On the 7 th day of March 2006 (date of order) Dated at Oshawa this 24 th day of April 2012. [ 14 ] By that notice, the defendant is made aware that the documents sought to be admitted will be a recognizance and information somehow related to the fail to comply charge alleged to have been committed March 30, 2012. The Recognizance [ 15 ] The notice does not indicate how this generally described recognizance relates to the offence of breach of recognizance.

There is more: • The location of the offence is not indicated. • The jurisdiction, in which the recognizance was issued, is not identified – be Ontario or elsewhere. • Whether this is the only recognizance related to this defendant is note indicated. [ 16 ] On reading the notice alone, the defendant would not know what recognizance was alleged to have been breached. [ 17 ] Nevertheless, the Crown submits that here any lack of specificity in the notice is cured by virtue of the fact that the defendant received copies of the actual documents referred to in the notice through the process of disclosure.

These documents – recognizance and information – while not attached to the Notice when it was served on the defendant are set out in Exhibit A (aforementioned). [ 18 ] This submission is problematic for two reasons and rejected. [ 19 ] Firstly – there is no evidence before the court that copies of the subject recognizance were part of the disclosure – that is merely an assertion. It is clear that when the notice was served upon the defendant on April 24, 2012, the subject documents referred to thereon, did not accompany the notice and were not therefore served on the defendant.

In short, there is no evidence that the defendant was served with a copy or copies of the recognizance or the information referred to in the notice and which form part of Exhibit A in these proceedings. [ 20 ] Secondly – A close examination of the recognizance, which forms part of Exhibit A, actually exacerbated the court’s concern for these reasons: 1. A partially typed and partially handwritten recognizance of bail issued from the British Columbia Provincial Court, December 7, 2005 – not March 7, 2006 as specified in the notice. 2.

That same partially typed and partially handwritten recognizance of bail issued from the British Columbia Provincial Court, December 7, 2005 appears to have undergone a variation on March 24, 2006. Indeed, the following handwritten endorsement appears on the recognizance under date March 24, 2006: “24-March-06 – cancelled and replaced by O.R. dated 24-March-06” which date is not March 7, 2006 as set out in the notice. 3. A typed recognizance of bail issued from the British Columbia Provincial Court dated March 24, 2006 – this is not March 7, 2006, as set out in the notice. The Information

[ 21 ] The Notice does not indicate how this generally described information or indictment to which it – the recognizance – relates to the offences of breach of recognizance.

There is more: • The offence is not specified. • The location of the offence is not specified. • The jurisdiction in which the information was sworn is not identified – be it Ontario or elsewhere. • Whether this is the only information related to the defendant is not indicated. • On reading the notice alone, the defendant would not know what offence was alleged to have been committed or what information where indictment is alleged. [ 22 ] Again, the Crown submits that here any lack of specificity in the notice is cured by virtue of the fact that the defendant received copies of the actual documents – the information or indictment - through the process of disclosure. [ 23 ] These documents – the information – were not attached to the notice when it was served upon the defendant April 24, 2012 were set out in Exhibit A. [ 24 ] This submission is problematic and rejected for two reasons. [ 25 ] Firstly, on the issue of disclosure – for the same reason set out earlier in this ruling as it relates to the recognizance and the lack of any evidence proving that the defendant was ever served with a copy of the information. [ 26 ] Secondly, an examination of Exhibit A reveals not one but two informations.

One of the informations alleges fraud. The other information alleges fail to attend court. Ruling [ 27 ] Upon a careful consideration of the Canada Evidence Act , the notice tendered – Exhibit A, the evidence, the jurisprudence [i] and submissions of counsel, I am not satisfied that reasonable notice has been given to the defendant in accordance with s. 28 of the Canada Evidence Act of its intention to produce certified copies of recognizance or information set out in Exhibit A. None of the documents will be admitted into evidence. [i] R. v. Lacemen [2004] O. J. No. 5576 ; R. v. Brace, R. v. Francis [2004] O.J.

No. 4503 ; R. v. Levene [2004] O.J. No. 5463 ; R. v. C.S. [1997] O.J. No. 6090 , R. v. Tran [1998] O.J. No. 6497 and R. v. Alderson [2006] O.J. No. 1899 . Note: The official version of these reasons for judgment is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. These reasons for sentence may have undergone editing changes