R. v. Boutilier, 2023 ONSC 3763

CITATION : R. v. Boutilier, 2023 ONSC 3763 COURT FILE NO.: 505/22 DATE: 20230623 ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: ) ) His Majesty the King Applicant ) ) ) Henry Limheng, Counsel for the Crown - and - ) ) ) Heaven-Lee Boutilier Respondent ) ) ) Cormac Donovan, Counsel for the Respondent ) ) HEARD: June 21, 2023 THE HONOURABLE JUSTICE M.

BORDIN REASONS FOR DECISION Overview [ 1 ] Heaven-Lee Boutilier is charged with one count of Fraud Over $5,000 and one count of Uttering a Forged Document. [ 2 ] The Crown seeks to admit RBC banking records for the truth of their contents to establish that copies of the cheques tendered are digital copies of the originals, are made out to the person named on the cheque, the account against which they are cashed, and the amount of the cheques.

The RBC records consist of two monthly account statements and copies of cheques. [ 3 ] The Crown also sought admission of Tangerine banking records containing account information, copies of cheques and electronic account printouts of transactions on an account. [ 4 ] The Crown asserts these banking records are admissible for the truth of their contents as real evidence, under the s. 30 business records provision of the Canada Evidence Act ( “ CEA ”), and the common law business records exception.

The Crown did not seek admission of the RBC records under s. 29 of the CEA . [ 5 ] In support of its motion with respect to the Tangerine records, the Crown relied on the preliminary inquiry evidence of Mr. Evans. Mr. Evans is a financial crime investigator with Tangerine Bank at the relevant time. The Tangerine records were produced

pursuant to a production order. Mr. Evans identified the Tangerine database as the source of the Tangerine bank records. He testified that the Tangerine database was 100 percent accurate. [ 6 ] Mr.

Evans also swore an affidavit in which he deposed that: a. the records of entries at Tangerine were done in the usual and ordinary course of business and are maintained in the custody and control of Tangerine; and b. the Tangerine bank records are true copies of ordinary records of Tangerine which were made in the usual and ordinary course of business at the times indicated. [ 7 ] No such evidence was called with respect to the RBC records. In support of its motion with respect to the RBC records, the Crown relied on the testimony of Mr. Coulombe, owner of Carlington Construction Inc.

The Crown’s explanation is that the RBC banking records were being tendered through Mr. Coulombe and his company as holder of the account, not through a production order or through the RBC. [ 8 ] Ms. Boutilier concedes that the threshold admissibility of the Tangerine banking records has been satisfied but the weight, reliability and significance of the records is a matter for the trial judge.

The Crown agrees that resolves the issue with the Tangerine records. [ 9 ] The Crown concedes that no evidence was tendered from RBC to satisfy any evidentiary requirements to establish that the RBC records are real evidence or can be admitted pursuant to ss. 29 and 30 of the CEA , or the common law business records exception. The Crown asserts that I can take judicial notice of the necessary evidentiary requirements and can rely, as supplemental evidence, on Mr. Coulombe’s evidence. [ 10 ] With respect to the RBC documents, Ms.

Boutilier says that there is no evidentiary foundation for admission of the RBC banking records pursuant to the common law business exception, the Canada Evidence Act , or as real evidence. Further, Ms. Boutilier says that it is not appropriate to take judicial notice of evidence that is mandated by the CEA for the admission of banking and business records. Mr. Coulombe’s Evidence [ 11 ] On or about March 14, 2020, Mr. Coulombe’s personal corporate work vehicle was stolen. There was a company cheque book inside the vehicle. The cheque book was associated with an RBC account. Mr.

Coulombe was the only one with authority to issue cheques on the RBC corporate account. [ 12 ] Mr. Coulombe identified the RBC bank statement dated February 29, 2020 to March 31, 2020, as being a bank statement of Carlington Construction Inc.’s RBC account. He also identified cheques numbered 183 through 186 as being corporate cheques which he did not write or sign. He said that the bank statements and cheques are received from the bank and available online as part of the monthly banking fees paid to the bank. Mr. Coulombe did not identify the second bank statement the Crown seeks to have admitted.

Law and analysis [ 13 ] Parliament has legislated the admissibility of records such as the RBC records. As the Crown did not proceed under s. 29 of the CEA , I raised the

section with both parties in submissions. [ 14 ]

Section 29 of the CEA addresses the requirements for admission of a copy of any entry in any book or record kept in any financial institution as proof of the entries and of the transaction and accounts in the record. Specifically, s. 29 of the CEA provides: Copies of entries 29

(1) Subject to this section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions and accounts therein recorded. Admission in evidence

(2) A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this

section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a true copy of it, and such proof may be given by any person employed by the financial institution who has knowledge of the book or record or the manager or accountant of the financial institution, and may be given orally or by affidavit sworn before any commissioner or other person authorized to take affidavits. financial institution means the Bank of Canada, the Business Development Bank of Canada and any institution that accepts in Canada deposits of money from its members or the public, and includes a branch, agency or office of any of those Banks or institutions; legal proceeding means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration.

[15] The decision of the Alberta Court of Appeal in R. v. Brar, 2020 ABCA 398, application for leave to appeal dismissed (SCC), was not, but should have been, brought to the court’s attention.

Brar set out the purpose of s. 29 of the CEA: [28] The purpose of s 29 of the CEA is to permit true copies of financial institutions’ books or records to be entered into evidence,thereby relieving those institutions and their customers from the inconvenience of having to bring their original books and records intocourt “for production in legal proceedings and to facilitate the proof of the matters entered in bank records”: R v McMullen, at para 7, 100 DLR (3d) 671 (ONCA) [McMullen]. [16] At paras. 31 and 32, the court in Brar considered what proof must be provided under s. 29, who may provide it, and how theproof may be provided: [31] The statutory language is clear: “A copy of an entry in the book or record described in subsection (1) shall not be admitted inevidence under this

section unless it is first proved that the book or record was, at the time of the making of the entry”, (

a) one of the ordinary books or records of the financial institution; (

b) that the entry was made in the usual and ordinary course of business; (

c) that the book or record is in the custody or control of the financial institution; and, (

d) the copy is a true copy of it. Proof may be given “orally or by affidavit sworn before any commissioner or other person authorized to take affidavits.” [32] The

section stipulates that “any person employed by the financial institution who has knowledge of the book or record or themanager or accountant of the financial institution” may provide such proof (emphasis added), which supports the

interpretation that onlygeneral knowledge is required by a s 29 affiant or witness. [17] At paras. 35 through 40, the Alberta Court of Appeal in Brar considered the legal authorities, s. 29’s long history, and confirmedthat “[i]t is incontestable that computerized records of a financial institution qualify as “records” under s. 29.” [18] Finally, at para. 42, the Alberta Court of Appeal noted that the legislation and the case law speaks to a low threshold for theadmission of records under both ss. 29 and 30 of the CEA. [19] However, there must be some evidence to satisfy the statutory requirement.

The evidence must come from an appropriate personat the financial institution. Mr. Coulombe is not such a person. Further, the evidence of Mr. Coulombe does not establish that the RBCrecords are of the ordinary books or records of the financial institution, that the entries were made in the usual and ordinary course ofbusiness, that the records are in the custody or control of the financial institution, and the copy is a true copy of it.

This may perhaps beassumed, but that is not evidence. [20] The Crown has not been able to direct me to legal authority for the proposition that it is not necessary to have an evidentiaryrecord to support the admission of bank statements or cancelled cheques. Instead, the Crown urges the court to take judicial notice of therequired evidence. [21] Essentially, the Crown asserts that bank records such as the RBC statements and copies of the cheques are records recorded andgenerated by computers and automatically reflected in the account in question.

Further, the Crown submits that businesses andindividuals routinely rely on and act on bank statements, such as the RBC account statements. It may be that this is so notorious orgenerally accepted as not to be the subject of debate among reasonable persons and would be capable of immediate and accuratedemonstration by resort to readily accessible sources of indisputable accuracy. [22] While it is tempting to accede to the Crown’s request to take judicial notice, in my view it is improper to do so. First, I ammindful of the warning in R. v.

Spence, 2005 SCC 71, [2005] 3 S.C.R. 458, at paras. 60-62 that the permissible scope of judicial noticeshould vary according to the nature of the issue under consideration and that more stringent proof may be called for of facts that are closeto the dispositive issues between the parties.

The RBC records sought to be admitted are very close to the dipositive issues here and thefacts the Crown is required to prove to establish the elements of the offence. [23] Secondly, taking judicial notice of the necessary facts to support admission of the RBC records would subvert and circumvent s.29 of the CEA which sets out the evidence required to be tendered to admit bank records.

I am not prepared to do so. [24] Instead of proceeding under s 29 of the CEA, the Crown urges the court to admit the RBC records under the statutory or commonlaw business records exception and to take judicial notice of the necessary evidence. The Crown has provided no authorities in whichbank records such as the RBC records have been admitted in such a fashion. [25] In my view, the evidence tendered by the Crown does not satisfy the test in Ares v. Venner, (SCC), [1970] SCR608. Mr.

Coulombe did not give evidence that the records were made contemporaneously by him or someone having personalknowledge of the matters recorded, or that they were made in the ordinary course of business. I would have to read-in, assume, or takejudicial notice of such evidence. For the reasons set out above, I am not prepared to do so. [26] The Crown says that the RBC records can be admitted for the truth of their contents pursuant to the less stringent requirements ins. 30 of the CEA. I do not agree. [27] Section 30(1) of the Canada Evidence Act provides a mechanism for admitting business documents: 30

(1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinarycourse of business that contains information in respect of that matter is admissible in evidence under this

section in the legal proceeding

on production of the record. [28] The words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with thescheme of the Act, the object of the Act, and the intention of Parliament. As noted, s. 29 of the CEA specifically provides for admissionof bank records. On the other hand, s. 30 addresses records made in the usual and ordinary course of business generally. There would beno need and no point to s. 29 if the bank records could be admitted under s. 30 of the CEA.

Reading the sections together with a view tothe scheme and object of the CEA, it is my view that the legislature intended financial institution records to be admitted pursuant to s. 29,not s. 30. [29] Finally, the Crown submits that the RBC records can be admitted for the truth of their contents because they are real evidence. Asnoted by the court in R. v. Aremu, 2018 O.J. No. 2461, there is support in recent authorities for the proposition that where electronicallystored information was recorded by an automated process, the evidence is real evidence, not hearsay.

As such, it is admissible for thetruth of its contents. However, if the electronically stored information is created or input by human beings as a record of theirobservations or statements, then the evidence is not real evidence and is not admissible for its truth without some other rule ofadmissibility such as the business records exception in

section 30 of the Canada Evidence Act: see Aremu para. 6 and the authoritiesreferenced therein and R. v. Mondor, 2014 ONCJ 135 , at paras. 17 through 19. [30] No authority was provided admitting bank records as real evidence. The authorities tendered by the parties indicate that evidencemust still be led to establish that the electronic evidence is real evidence. No such evidence was tendered by the Crown. [31] Finally, admitting bank records as real evidence in the face of s. 29 of the CEA appears to be unnecessary.

If it were possible to doso, it should at least require the same level of proof as is required by s. 29. The Crown has not tendered the necessary evidence and forthe reasons set out above, I am not prepared to take judicial notice of the necessary evidence. Conclusion [32] The Crown has not led evidence on this motion to establish the admission of the RBC records pursuant to s. 29 of the CEA orcommon law.

Section 30 of the CEA is not applicable, but if it were, the Crown has not led the necessary evidence. [33] On the evidence before me, the Crown’s motion is dismissed. ___________________________ M. Bordin, J. Released: June 23, 2023 CITATION: R. v. Boutilier, 2023 ONSC 3763 COURT FILE NO.: 505/22 DATE: 20230623

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: His Majesty the King Applicant - and - Heaven-Lee Boutilier Respondent REASONS FOR DECISION M. Bordin, J. Released: June 23, 2023