Admissibility Documents

• Author: Jonathan Shime/Ian Smith/Grace Hession David
• Pages: 75-98

75

Admissibility of

Documents

5

I. Introduction ............................................. 76

II. Documents in Possession .................................. 77

A. Evidentiary Foundation: Actual or Constructive Possession .. 78

B. Circumstantial Evidence Going to Knowledge, Motive, or

State of Mind ....................................... 80

C. Evidence of Adoption ................................ 82

III. Bank Accounts ........................................... 86

IV. Business Documents ...................................... 88

A. Guarantee of Trustworthiness and Accuracy .............. 92

B. Admissibility at Common Law ......................... 93

V. The Admissibility of Other Documents ........................ 96

A. Evidence of Judicial Proceedings ....................... 96

B. Public Documents and Books ......................... 96

C. Federal Government Book or Record .................... 97

D. Notice ............................................ 97

VI. Charts and Summaries of the Documentary Evidence ............ 97

Appendix 5.1 Section 29 Financial Institution Affidavit ......... 98

© [2021] Emond Montgomery Publications. All Rights Reserved.

76 Prosecuting and Defending Fraud Cases

I. Introduction

Quite often, counsel obtains a fraud file to prosecute or defend, and there is nothing

more than a collection of confusing and overwhelming documents that constitute the

core of the file. The first question that must be answered is, “What documents are

the crucial documents in this case?” As we noted earlier, the services of an expert

may be required at this point. But if the file is somewhat comprehensible on its face, a

very helpful method of making this determination is for counsel to sit down and study

the file. Once counsel has learned the allegations, and ascertained and matched the

dishonesty/deceit/other fraudulent means with the actual deprivation, the next step

becomes one of writing. We find it helpful to write out the case in point form. If coun-

sel can prepare a summary of the case, and associate a document with each bullet point

in the assessment of the case, counsel will know if he or she has a case and if it can

be proven. This process will be instrumental for defence counsel in properly deciding

whether or not there is a defence and what it may be. This process may take some time,

but once counsel has mastered it, he or she will know three important things:

1. what witnesses will be required;

2. what documents have to be filed as exhibits in the case; and

3. whether or not there is a reasonable prospect of conviction.

The old rule of thumb for fraud files is that if the Crown cannot understand the fraud,

then the Crown will not be able to prosecute it.

With this in mind, it is evident why documents are the backbone of a fraud trial.

Documents often stand as corroboration of viva voce evidence from witnesses and

sometimes, on their own, may bear testament to what really happened. Documents

can also provide fodder for cross-examination for both sides of the dispute. Even if

a particular document is very helpful for defence counsel, Crown counsel cannot

be lazy and count on consent as being the impetus for filing the document with the

Court. If the trial judge is doing his or her job, he or she will want a spotless record

for a reviewing court, and that means that the documents have to be properly admis-

sible according to the rules of evidence, even if defence counsel has been courteous

enough to consent to their admission as exhibits in the trial. For this reason alone, it is

crucial to ensure that every document that is to be relied upon is properly admissible.

Documents are not prima facie admissible due to the fact that, on their face, they

contain hearsay. Documents always reflect things that other people said or did outside

of court. They are akin to out-of-court statements by third parties because they often

reflect transactions on the part of more than one party. The only way to climb the

“admissibility tree” and surmount the hearsay problem is for counsel to rely on the

provisions of the Canada Evidence Act (CEA).1 A good grounding in the provisions of

1 RSC 1985, cC-5 [CEA].

© [2021] Emond Montgomery Publications. All Rights Reserved.