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C A N A D A Province de Québec Greffe de Montréal
No: 500‑10‑000073‑906
(500‑36‑000696‑891)
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Cour d'appel
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Le 07 février 1991
CORAM : Juges Monet, Dussault et Fish
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LA PROCUREURE GÉNÉRALE DU CANADA, poursuivante appelante,
c.
NORMAND JARRY, accusé intimé
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LA COUR, statuant sur le pourvoi de l'appelante contre un jugement de la Cour supérieure, district de Montréal, prononcé le 22 février 1990 par l'honorable Claude Guérin qui a rejeté l'appel de l'appelante contre un jugement de la Cour des poursuites sommaires rejetant une dénonciation pour des infractions relatives à la Loi de 1971 sur l'assurance-chômage, S.C. 1970-71-72, chap. 48 (devenue Loi sur l'assurance-chômage, L.R.C. 1985, chap. v-1.)
Après étude, audition et délibéré;
Pour les motifs exposés dans l'opinion écrite de M. le juge Fish à laquelle souscrivent MM. les juges Monet et Dussault;
ACCUEILLE le pourvoi;
ORDONNE la tenue d'un nouveau procès devant la Cour des poursuites sommaires.
VU la nature de l'affaire, la Procureure générale du Canada, avec raison, ne demande aucun frais. JJ.C.A.
OPINION OF FISH, J.A.
Respondent was charged with 10 counts of making false or misleading statements while claiming benefits under the Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48 (now the Unemployment Insurance Act, R.S.C. 1985, c. V-1).
At his trial, the Crown sought to introduce, through an Unemployment Insurance Commission investigator, a claim by respondent for benefits under the Act. Respondent's counsel objected on the following grounds:
PAR LA DEFENSE
Monsieur le Juge, la Défense, à ce stade-ci, va s'objecter à la production d'un document en s'appuyant sur l'article 30 de la Loi sur la preuve qui nous dit que, pour qu'un document soit produit, l'alinéa 7 nous dit:
"Sauf si le Tribunal en décide autrement, aucune pièce, aucun affidavit est admissible en preuve en vertu du présent article, à moins que la partie qui produit la pièce ou l'affidavit n'ait, au moins sept jours avant sa production, donné à chacune des autres parties à la procédure judiciaire un avis de son intention de le produire et ne l'ait, dans les cinq jours qui suivent la réception d'un avis à cet effet donné par l'une de ces parties, produit pour fins d'examen à cette partie."
Cet avis n'a pas été produit, monsieur le Juge et la Cour suprême, dans CLOUTIER c. LA REINE en 1979 nous dit clairement que les dispositions de l'article 30 sont des dispositions de fond et non de forme, en ce qui regarde la production de documents.
This objection was maintained by the trial judge, whose reasons, though delivered orally, were given with care. Essentially, the trial judge concluded that appellant's claim was a business record within the meaning of S. 30 of the Canada Evidence Act, R.S.C. 1970, c. E-10 (now R.S.C. 1985, c. C-5). Its admissibility, he held, was therefore subject to the notice provisions set out in s. 30(7) of that Act.
Such notice had not been giyen and the trial judge, for that reason, maintained respondent's objection.
The parties appear to have proceeded on the basis that this ruling applied to other documents which the prosecution proposed to tender.
Since there was no case without the contemplated documentary evidence, the Crown closed its proof and the charge, of course, was dismissed.
An appeal from that decision, by way of stated case, was dismissed by Guérin, J., of Superior Court.
Guérin J. noted appellant's argument that admissibility of the documents in question was governed by s. 120 (now s. 102) of the Unemployment Insurance Act and not by ss. 28 or 30 of the Canada Evidence Act. He nonetheless dismissed the appeal because, in his view:
L'article 102 de la Loi sur l'assurance-chômage permet au tribunal saisi d'une poursuite de considérer le contenu des documents mentionnés comme ayant été prouvé sans qu'il soit nécessaire de s'assurer de l'authenticité du document.
Les articles 28 et 30 de la Loi de la preuve se rapportent non pas au contenu des documents mais plutôt à la façon dont ces documents doivent être produits devant le tribunal.
Dans le cas qui nous intéresse, les formulaires de demande de prestation d'assurance-chômage et les extraits du régistre de paye font foi de leur contenu suivant l'article 102, mais la production de ce dit document doit être faite en conformité à l'article 30 sous paragraphe 7 qui énonce qu'aucune pièce n'est admissible à moins que la partie qui produit la pièce n'ait donné un avis d'au moins 7 jours.
With leave granted by our colleague Baudouin, the Crown now appeals to this Court from the judgment of Guérin J.
ISSUE
The sole issue before us is stated as follows in appellant's factum (p. 5):
La Couronne doit-elle satisfaire aux exigences de l'article 30 de la Loi sur la preuve au Canada et notamment aux dispositions du paragraphe 30(7) relatives à la signification d'un avis de son intention, lorsqu'elle entend produire un document en preuve conformément aux dispositions du paragraphe 120(1) de la Loi de 1971 sur l'assurance-chômage ?
STATUTORY PROVISIONS
A) Unemployment Insurance Act, 1971
120. (1) In any proceedings under this Act,
a) a document purporting to be a resolution, record or other proceeding of the Commission or other proceeding under this Act or a copy thereof, and purporting to be certified by a Commissioner or the Secretary of the Commission,
b) a document purporting to be, or purporting to be a copy of or extract from,
i) a document in the custody of the Commission or a document issued under this Act, or
ii) any entry in any books or records in the custody of the Commission, and purporting to be certified by the Commission or an officer appointed or employed pursuant to this Act,
c) a document purporting to be certified by the Commission or an officer appointed or employed pursuant to this Act and setting forth the amount of any contributions paid, payable or owing or the amount of any benefit or other amount paid to or owing by any person, and d) a document purporting to be, or purporting to be a copy of or extract from, any employer's register, books, wage sheets, records of wages, ledgers, accounts or other documents and purporting to be certified by an inspector or officer appointed or employed pursuant to this Act to whom they were produced under this Act, is evidence of the facts appearing in the document without proof of the signature or official character of the person appearing to have signed the certificate and without further proof thereof.
B) Canada Evidence Act
28. (1) No copy of any book or other document shall be received in evidence, under the authority of section 23, 24, 25, 26 or 27, upon any trial, unless the party intending to produce the same has before the trial given to the party against whom it is intended to be produced reasonable notice of such intention.
(2) The reasonableness of the notice 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. 307, s. 28.
30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding upon production of the record.
...(7) Unless the court orders otherwise, no record or affidavit shall be received in evidence under this section unless the party producing the record or affidavit has, at least seven days before its production, given notice of his intention to produce it to each other party to the legal proceeding and has, within five days after receiving any notice in that behalf given by any such party, produced it for inspection by such party.
...(11) The provisions of this section shall be deemed to be in addition to and not in derogation of
(a) any other provision of this or any other Act of the Parliament of Canada respecting the admissibility in evidence of any record or the proof of any matter, or
(b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.
DISCUSSION
Section 30 (7) of the Canada Evidence Act provides that "no record or affidavit shall be received in evidence under this section" unless the stipulated notice has been given. By its very terms, this notice requirement is inapplicable to documentary evidence received otherwise than under s. 30.
In this regard, the intention of Parliament is apparent not only from the plain language of s. 30 (7) but also from its legislative context. (1) The immediately preceding section, s. 29, makes admissible copies of certain records kept in financial institutions.
The records covered by s.29 are clearly business records within the meaning of s.30. In some instances, they are also records contemplated by ss. 24 and 26, which are both subject to the notice requirement of s.28. Yet s.29, unlike s.30, contains no requirement of notice.
Section 28, on the other hand, sets out a notice requirement entirely independent of that contained in s.30 (7). Its reach, like that of s.30 (7), has been expressly limited by Parliament -- s.28 applies only to copies of a book or document "received in evidence under the authority of section 23, 24, 25, 26 or 27" of the Act.
(1) "...It is well settled that one section of a statute should be read in the light of other sections thereof relating to the same or to a cognate subjectmatter.": per Schroeder J.A., speaking for the Court in R. v. Ward (1972), 22 C.R.N.S. 153 (Ont. C.A.), at p. 156. This formulation of the rule was expressly concurred in by Pratte J., writing for the majority of the Supreme Court of Canada in R. v. Cloutier, (1979) 2 S.C.R. 709, at p. 722. The importance of legislative context as a guide to statutory interpretation was recently reiterated in R. v. S.(S), (1990) 2 S.C.R. 254 at p. 275, where Chief Justice Dickson cited with approval the view of Pierre-André Côté that "the statute is to be read as a whole, and each of its components should fit logically into its scheme": see The Interpretation of Legislation in Canada (1984) at p. 235.
This legislative layout makes it plain to me that the notice requirements of s.28 and s.30 (7) do not apply to a document tendered in evidence under s.29. They do not govern the admissibility, under s.29, of a "copy of any entry in any book or record kept in any financial institution" -- even though it is clearly a copy of a business record within the meaning of s.30 and, in some cases at least, it is also a copy of a record within the meaning of ss. 24 and 26, for which notice is required by s.28.
It has already been held elsewhere, I should note, that the notice provisions of s.30 do not apply to copies of records admissible under s.29 and they may therefore be produced without notice to other parties: R. v. Best (1978), 43 C.C.C. (2d) B.C.C.A.).
If the notice provisions of s.30 do not apply to s.29, they can hardly apply to s.120 of the Unemployment Insurance Act, 1971. Each of these sections makes admissible documentary evidence which is also admissible under s.30. By virtue of s.30(11), the provisions of s.30 are "deemed to be in addition to and not in derogation of any other provision of this or any other Act". What s.30 does not add to other sections of the Canada Evidence Act, such as s.29, it therefore does not add to other statutory provisions, such as s.120 of the Unemployment Insurance Act, 1971. Since s.30(7) is not a procedural requirement "in addition to" s.29, as the Court concluded in Best, it cannot be a requirement "in addition to" s.120 of the Unemployment Insurance Act, 1971.
It will be helpful to look again at s.30(11) :
(11) The provisions of this section shall be deemed to be in addition to and not in derogation of
(a) any other provision of this or any other Act of the Parliament of Canada respecting the admissibility in evidence of any record or the proof of any matter, or
(b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.
In my view, the purpose of this sub-section is simply to make it clear that s.30 is incremental and not subtractive as regards other statutory provisions or common law rules under which any matter may be proved. Section 30 provides for the admissibility of evidence which is not expressly contemplated by another provision of law. It does not govern, restrict or confine the application of tnose other provisions.
It does not authorize the exclusion of any evidence elsewhere made receivable. Were it otrterwise, s.29 of the Canada Evidence Act and s.120 of the Unemployment Insurance Act, 1971, along with all other inclusionary rules relating to specific kinds of "business records", would add nothing at all to the law. They would be entirely superfluous, providing only for the reception of evidence that is also receivaDle under s.30. Such a result would clearly do violence to the intention of Parliament and to the presumption that none of its statutes are otiose: see Subilomar Properties v. Cloverdale, (1973) S.C.R. 596, at p. 603, per Spence J., speaking for the Court.
The import of s.30(11), in short, is that s.30 renders admissible evidence that is not otherwise receivable, but it does not curtail the admissibility of evidence that is already receivable under another statute or rule.
In the present case the Crown tendered a document (or documents) as evidence under s. 120(1)(d) of the Unemployment Insurance Act, 1971 -- and not under s.30 or any other section of the Canada Evidence Act, Section 30(7), in my view, therefore had no application to the proceedings.
This interpretation is in harmony with the unanimous judgment of the New Brunswick Court of Appeal in R. v. Yerxa (1978), 42 C.C.C. (2d) 177, and with the judgment of the Ontario Court of Appeal in R. v. Hayes (unreported, April 25, 1977, Jessup, Dubin (now C.J.O.) and Martin, JJ.A.), to which it refers (at pp. 181-82):
Counsel also relied on an unreported decision of Mr. Justice Cromarty of the Supreme Court of Ontario, dated February 18, 1977, in the case of Her Majesty The Queen v. Floyd Hayes, being an appeal by stated case from a ruling made by a Provincial Court Judge regarding documents that the Crown attempted to file in the trial of the respondend on five charges of breach of s. 121(1)(a) of the Unemployment Insurance Act, 1971 (being the same offence as is charged in the instant case). The questions propounded in the stated case for the opinion of the Court were:
1. Did I err in law in holding that the photographie copies of microfilm of five Claimant's Reports certified under Section 120(1)(b)(i) and 120(3) of the Unemployment Insurance Act and Extract from Employer's Payroll certified under Section 120(1)d) were inadmissible because no notice had been given to the Respondent of the Crown's intention to produce same as required by Section 30(7) of the Canada Evidence Act ?
2. Did I err in law in holding that section 30 Subsection 11 of the Canada Evidence Act was not applicable so as to relieve the Crown from giving notice as reguired by Section 30(7) of the said Canada Evidence Act in that said Section 30(7) was not in derogation of The Unemployment Insurance Act in respect to the admissibility of the records referred to in the said Act or the proof of any matter as governed by the said act ?
The Court having answered both questions in the affirmative, the appeal was allowed. On a further appeal by the accused the Ontario Court of Appeal in an unreported decision delivered April 25, 1977, answered both questions in the affirmative and dismissed the appeal against conviction.
In the instant case counsel for the accused relied on s.28 of the Canada Evidence Act which he submitted created not only a procedural duty on a party intending to produce documents but also a procedural right in the party against whom the documents are to be tendered so that such party may have an opportunity to make full answer and in defence (sic). Section 28 reads:
28(1) No copy of any book or other document shall be received in evidence, under the authority of section 23, 24, 25, 26 or 27 upon any trial, unless the party intending to produce the same has before the trial given to the party against whom it is intended to be produced reasonable notice of such intention.
(2) The reasonableness of the notice shall be determined by the court, judge or other person presiding, but the notice shall not in any case be less than seven days.
It is to be noted the requirement of notice is limited to books and documents sought to be introduced "under the authority of section 23, 24, 25, 26 or 27". Assuming, without deciding, that a payroll record of the Victoria Public Hospital comes within one of the named sections so as to permit proof thereunder, it is clear that the certified extract of the payroll in the instant case was tendered and received in evidence under s.120(1)(d) of the Unemployment Insurance Act, 1971 and not under any of the specified sections of the Canada Evidence Act.
In my opinion s.120(1)(d) was enacted to facilitate proof in any proceeding under the Unemployment Insurance Act, 1971 of the contents of payrol1 records to avoid the necessity of calling the employer or any person in the employ of the employer as a witness, and that nothing in the Canada Evidence Act imposes any condition upon the admissibility of such a document if it is tendered under s.120, as was done in the instant case.
Yerxa was applied in Quebec Superior Court by Corriveau J. in R. v. Poirier (unreported, Baie-Comeau, No. 655-36-000016-894 October 30, 1989).
Advancing the contrary position, respondent relies on s. 30(11) of the Canada Evidence Act, which I have already considered and on R. v. Cloutier, (2) to which I now turn.
(2) Supra, note 1.
R. v. Cloutier is, in my respectful view, of no assistance to respondent. In that case, the Crown sought to introduce an air waybill as part of its case. Article 6 of Schedule 1 of the Carriage by Air Act, R.S.C. 1970, c. C-14 (now R.S.C. 1985, c. C-26), provides that an air waybill shall be made out in three original parts. In virtue of article 11, the waybill is prima facie evidence of certain matters which the Crown sought to prove. At trial, it tendered in evidence a document describing itself as "Copy 4 (Delivery Receipt)".
Writing for the majority, Pratte J. stated (pp. 729-30):
It seems clear that Exhibit P-O-1 is not one of the three original copies of a waybill referred to by Article 6, quoted above; it is a copy of a waybill which was intended, when duly completed, to be used as an original delivery receipt.
In my opinion, therefore, Exhibit P-O-1 could not be admitted in evidence unless accompanied by the affidavit prescribed in s. 30(3) of the Canada Evidence Act. In view of this conclusion, there is no need for me to express an opinion on the other arguments put forward by appellant against the introduction of this exhibit.
I read this passage to mean that the exhibit in question was not admissible without s.30(3) affidavit because it was not a waybill within the meaning of the Carriage by Air Act. Though not a waybill, it was nonetheless a copy of a business record and therefore admissible, independently of the Carriage by Air Act, under s.30(3) of the Canada Evidence Act. Justice Pratte did not mention -- let alone overrule -- Yerxa, Hayes, or Best, the three appellate court judgments I have referred to above. Though not conclusive, this omission could hardly be the result of oversight and, to that extent, Cloutier does favour the view that Yerxa, Hayes, and Best remain good law.
CONCLUSION
In the modern era of criminal justice, the Crown is expected to disclose to the defence, in a timely manner, its case against the accused. The dark days of ambush and surprise are largely a phenomenon of the past.
It may therefore seem unnecessary, from a practical point of view, to specially provide by statute that the accused must receive reasonable notice of the documentary evidence to be produce at her or his trial.
Timely notice to the defence is not simply a matter of fairness, but also a sensible way to prevent any delay to which an accused would be entitled if taken by surprise at trial.
It does seem incongruous to require notice with respect to certain documents of a public nature and to permit the reception without notice of a copy of an entry in a payroll register.
Nonetheless, the law expressly requires notice in some instances and not in others and, for the reasons explained, I feel bound to hold that the provisions of s.30(7) of the Canada Evidence Act do not apply to evidence adduced under s.120 of the Unemployment Insurance Act, 1971.
Why Parliament has so decided is not as clear to me as that Parliament has clearly so decided.
In the result, I would maintain the appeal and order a new trial. J.A.
INSTANCE-ANTÉRIEURE
(C.S. Montréal 500-36-000696-891; 500-27-001889-882)