Canadian Criminal Evidence/Documentary Evidence/Public and Judicial Documents

Public Documents

Legislation and Regulations

Under s. 19, 20, 21, and 22 of the Canada Evidence Act, Acts of Parliament and provincial legislation is admissible without proof. There is no need for certification, and all copies are deemed admissible unless proven otherwise.

Official Government Documents

Section 24 states:

Certified copies
24. In every case in which the original record could be admitted in evidence,

(a) a copy of any official or public document of Canada or of any province, purporting to be certified under the hand of the proper officer or person in whose custody the official or public document is placed, or

(b) a copy of a document, by-law, rule, regulation or proceeding, or a copy of any entry in any register or other book of any municipal or other corporation, created by charter or Act of Parliament or the legislature of any province, purporting to be certified under the seal of the corporation, and the hand of the presiding officer, clerk or secretary thereof,

is admissible in evidence without proof of the seal of the corporation, or of the signature or official character of the person or persons appearing to have signed it, and without further proof thereof.

R.S., c. E-10, s. 24.

– CEA

Certificates of provincial incorporation can be admitted under s. 24 and 37 of the CEA.

Aeronautical charts produced by the Government of Canada are admissible without notice due to their inherent reliabillity.

Publicly Accessible Documents under the CEA

Section 25 concerns the admissibility of documents of a "public nature":

Books and documents
25. Where a book or other document is of so public a nature as to be admissible in evidence on its mere production from the proper custody, and no other Act exists that renders its contents provable by means of a copy, a copy thereof or extract therefrom is admissible in evidence in any court of justice or before a person having, by law or by consent of parties, authority to hear, receive and examine evidence, if it is proved that it is a copy or extract purporting to be certified to be true by the officer to whose custody the original has been entrusted.

– CEA

This typically would include books available in a library, newspapers, website printouts, brochures, and other documents that are readily accessible in public.

Public Documents at Common Law

A document is admissible at common law as a public document where the following criteria are satisfied:

1. the document must have been made by a public official, that is a person on whom a duty has been imposed by the public,
2. the public official must have made the document in the discharge of a public duty or function,
3. the document must have been made with the intention that it serve as a permanent record, and
4. the document must be available for public inspection.

A Pre-sentence report may be considered a public document at common law.

Judicial Documents

Judicial Proceedings

Under s. 23, records of judicial proceedings may be entered in as evidence:

Evidence of judicial proceedings, etc.
23. (1) Evidence of any proceeding or record [before any court in Canada for foreign court] or before any justice of the peace or coroner in a province, may be given in any action or proceeding by an exemplification or certified copy of the proceeding or record, purporting to be under the seal of the court or under the hand or seal of the justice, coroner or court stenographer, as the case may be, without any proof of the authenticity of the seal or of the signature of the justice, coroner or court stenographer or other proof whatever.

– CEA

Court Orders and Documents

An information and probation order that were not made under seal or signed by a judge of the court (thus not admissible under s. 23 of the CEA) are admissible as a public document defined in s. 24(a) under the common law. To be admissible it must:

1. be made by a public official upon whom a public duty had been imposed
2. made by the public official in the discharge of a public duty or function
3. intended to serve as a permanent record;
4. were available for public inspection.

In proving probation order, an original certified copy of the order may be submitted as an exhibit without notice at the common law.. This likewise is the case in proving an order of disqualification from driving.

Notice

All documents and records, whether private or public, are addressed under s. 28 of the Canada Evidence Act:

Notice of production of book or document
28. (1) No copy of any book or other document shall be admitted in evidence, under the authority of section 23, 24, 25, 26 or 27, 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.

(2) The reasonableness of the notice referred to in subsection (1) shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days. R.S., c. E-10, s. 28.

– CEA

While government records are admissible under s. 24, s. 28 still requires that there be at least 7 days notice for their admission. Late notice to produce documents however is not necessarily fatal.

Notice must be given to the accused of intention to admit the recognizance under s. 23, 28. Notice must include information on the offence specified, location of the offence, and accused person.

Exemplification of Court Documents

At common law, court documents, including court orders, are admissible without notice where the court document is an original or a photocopy under seal. This has been considered available under the hearsay exception for public documents and judicial proceedings. However, it has been said that the court still retains the discretion to exclude these documents where the defence is prejudiced by the lack of notice.

Exemplifications are photocopies of official court documents that have the official seal of the court. It cannot apply to any non-court generated document attached to the court file. Section 28 has no application to exemplified document.

A regular copy of the document is all that is necessary to serve to comply with s.28 of the CEA. There is no requirement that the copy be certified.

Police Documents

Notice of Intention to produce a certificates of analysis require notice. Where it is a certificate for a breathalizer test, section 258(7) applies:

No certificate shall be received in evidence pursuant to paragraph (1)(e), (f), (g), (h), or (i) unless the party intending to produce it has, before the trial, given to the other party reasonable notice of his intention and a copy of the certificate.

This requires that the crown prove that service was made, that it was made in a reasonable time, and that the notice communicated the intention to produce the materials at trial.

Where notice to produce a certificate of analysis is served upon an accused person, there is a rebuttable presumption that the person understand the notice.