R. v. MacMullin (A.D.) et al., 2013 ABQB 741

• Judge: Germain, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: December 19, 2013
• Citations: 2013 ABQB 741;(2013), 579 A.R. 205 (QB)

R. v. MacMullin (A.D.) (2013), 579 A.R. 205 (QB)

MLB headnote and full text

Temp. Cite: [2014] A.R. TBEd. JA.056

Her Majesty the Queen v. Allan Dawson MacMullin and Roy Elander

(110295011Q1; 2013 ABQB 741)

Indexed As: R. v. MacMullin (A.D.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Germain, J.

December 19, 2013.

Summary:

The accused MacMullin was charged with 41 counts of fraud over $5,000 for allegedly defrauding financial institutions by fraudulently obtaining mortgage funds. The accused Elander was jointly charged with MacMullin on 26 of those counts. At issue on this voir dire was the admissibility of 90,000 pages of various files and documents representing the paper trail of the alleged fraudulent scheme. The accused challenged the admissibility of the documents on the basis that they constituted hearsay. The accused also alleged a breach of Elander's s. 8 Charter right to be secure from unreasonable search and seizure.

The Alberta Court of Queen's Bench held that, with only minor limitations, the evidence was admissible. The court held that Elander's s. 8 Charter rights were not infringed and that, alternatively, had there been a breach of Elander's privacy rights the documents in question would not have been excluded under s. 24(2) of the Charter.

Civil Rights - Topic 1508

Property - General principles - Expectation of privacy - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 1646

Property - Search and seizure - Unreasonable search and seizure defined - The accused (MacMullin and Elander) were jointly charged with multiple counts of fraud over $5,000 for allegedly defrauding financial institutions by fraudulently obtaining mortgage funds - Elander was a lawyer - Some of Elander's legal files, with the consent of the clients and on the advice of the Practice Advisor, who had custody of Elander's files, were photocopied and provided to the R.C.M.P. - No warrant had been obtained - Elander claimed that since the files contained personal property (working notes and internal memos), the warrantless obtention of these files constituted an unreasonable search and seizure contrary to s. 8 of the Charter - The Alberta Court of Queen's Bench stated that assuming that Elander had a sufficient privacy interest in the files to give him status to bring a Charter application, the clients "owned" the files and Elander had no reasonable expectation of privacy that warranted s. 8 Charter protection - Alternatively, if Elander's s. 8 Charter rights had been infringed, the court, on the basis of the Grant factors (SCC), would not have excluded the evidence under s. 24(2) - See paragraphs 217 to 250.

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 1646 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues (incl. standing) - [See Civil Rights - Topic 1646 ].

Evidence - Topic 1500

Hearsay rule - General principles and definitions - Definition and general rule - The Alberta Court of Queen's Bench referred to the following definition of hearsay: "Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made" - See paragraph 50.

Evidence - Topic 1527

Hearsay rule - Hearsay rule exceptions and exclusions - Where admission of hearsay necessary and evidence reliable - The Alberta Court of Queen's Bench stated that "the Ares v Venner rule on the admission of reliable and necessary documentary evidence should be cast broadly, to better reflect the modern nature of documentary evidence. Current technology and business methods mean that an unprecedented degree of data is recorded and tracked, much of it by automated processes. This means that the Ares v Venner rule has become more and more relevant, particularly in legal actions, such as this one, where much of the evidence is necessarily captured primarily in the documentary record. It is simply a fact of modern life that in situations such as this that witnesses, after they review financial, logistic, scientific, medical, engineering, information technology and many other kinds of records, can say little more than they have no personal knowledge or memory of these materials, but at best these documents do not appear incongruous when evaluated for the truth of their contents, and their materials arise from a generally trusted (i.e. reliable) data source." - See paragraph 73.

Evidence - Topic 1581

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Exceptions to admission - Business records made in the normal course of business were admissible under s. 30 of the Canada Evidence Act - An exception was where the business record was made in contemplation of litigation (s. 30(10)(a)(ii)) - The Alberta Court of Queen's Bench stated that "The prohibition against admission of documents prepared in contemplation of litigation must be to shield the party who commissions those documents, not any other person from whom the contents of those documents are potentially relevant. The second part of subsection 10 specifically relates to a litigation concern. The section says: 'or in contemplation of a legal proceeding'. In my view the contemplation of a legal proceeding exclusion must relate to the opinions given to facilitate or defend litigation between the litigant before the court and his legal opinions obtained in relation to that litigation. ... A pure legal opinion about the merit of a legal position may fall within this exception; however work conducted in a law office that is of a routine nature, such [as] a collection of searches and publicly registerable documents or reporting letters, would have to fall outside the exception. That is neither 'advice' nor 'in contemplation of a legal proceeding', no more than would be a financial account held at a bank." - See paragraphs 158, 198.

Evidence - Topic 1582

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - The Alberta Court of Queen's Bench generally discussed the admissibility of records from financial institutions under s. 29 of the Canada Evidence Act and business records made in the ordinary course of business under s. 30 - The court stated that "the scheme of the Act is to prevent the wastage of time both from the point of view of a witness and the court. The legislation strongly encourages reliance on affidavit evidence to introduce these documents. That is not to say that the courts should unreasonably reduce the safeguards on the admissibility of documents and allow sloppy affidavits and technically erroneous affidavits to become the norm. However, the key affidavit evidence from the witness should relate to the basis on which Parliament concluded this kind of documentary evidence was reliable, so that affidavit should confirm: 1. the deponent is an employee of the financial institution or other business (for example, brokerage house or law firm); 2. the parent document is a file possessed by that business, and 3. the deponent certifies that the copy presented to the court is a true copy." - See paragraphs 111 to 119.

Evidence - Topic 1582

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - An accused argued that business records made by a third party (eg. mortgage broker) were not records made in the ordinary course of business under s. 30 of the Canada Evidence Act - The Alberta Court of Queen's Bench stated that "the phrase 'made in the usual and ordinary course of business' must be given a wide and liberal interpretation and include records for which a financial institution specifically delegates preparation to a regulated third party, and where the information is collected on its behalf. The relationship between a mortgage broker and a financial institution remains as an independent contractor, but when the financial institution receives and approves that information, and incorporates it into their records that 'external' document becomes an 'internal' record of that financial institution. Nothing else makes sense. There is simply no justification to separate admissibility and non-admissibility under CEA, s. 30 on the basis of division of labour, when a divided process is part of the business practice of the financial institution." - See paragraph 157.

Evidence - Topic 1582

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - At issue was whether records made in the ordinary course of business by financial institutions or other institutions were admissible under ss. 29 and 30 of the Canada Evidence Act where the records were made by a smaller company that was bought out or absorbed by another company and that latter company was seeking to have the records admitted - The Alberta Court of Queen's Bench rejected an accused's submission that ss. 29 and 30 "only contemplate admission of business records where the business that created the records is the one to supply the affidavits to establish the records are admissible under those sections" - The court stated that "it would be appropriate in today's pragmatic business climate, recognizing that there will be from time to time these amalgamations and consolidations in the financial industry, to allow employees of the purchasing institution to submit affidavits based on what they believe to be the business records that were acquired as part of their purchase and also to depose if they feel it is appropriate to do so and factually correct that the records were made in the ordinary course of that predecessor business." - See paragraphs 200 to 208.

Evidence - Topic 1582

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - [See second Evidence - Topic 1600 ].

Evidence - Topic 1586

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Regular entries - Computer or machine made records - [See both Evidence - Topic 1598.2 ].

Evidence - Topic 1598.2

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Government records - Land Titles Office records - The accused (MacMullin and Elander) were jointly charged with multiple counts of fraud over $5,000 for allegedly defrauding financial institutions by fraudulently obtaining mortgage funds - At issue on this voir dire was the admissibility of 90,000 pages of various files and documents representing the paper trail of the alleged fraudulent scheme, including electronic records from the Land Titles Office - The Alberta Court of Queen's Bench held that the electronic Land Titles Office records were admissible under the Land Titles Act and the Government Organization Act - Alternatively, these records would be admissible under the principled exception to the hearsay rule, as they were both necessary and reliable - The court stated that "an electronic version of a LTO document recovered by either LTO staff or a person who uses the LTO database search engine (described as a 'SPIN2' spatial information system record), is presumptively admissible so long as the person who ordered and printed the document is available to indicate the procedure that was followed to obtain that document. ... I suggest, with respect to those who would hold a contrary view, that the time for LTO records to be challenged on a preliminary admissibility basis has passed." - See paragraphs 94 to 104.

Evidence - Topic 1598.2

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Government records - Corporate Registries Office records - The accused (MacMullin and Elander) were jointly charged with multiple counts of fraud over $5,000 for allegedly defrauding financial institutions by fraudulently obtaining mortgage funds - At issue on this voir dire was the admissibility of 90,000 pages of various files and documents representing the paper trail of the alleged fraudulent scheme, including electronic documents obtained from the Alberta Corporate Registries Office - The Alberta Court of Queen's Bench held that the documents were admissible under the Alberta Business Corporations Act - The court stated that "I conclude that legislation authorizes the corporate records as admissible without more, and this includes both: 1. the records for which the Corporate Registry can issue a certificate, such as the formation of a company, and 2. the underlying documents or data submitted in support of that corporate formation. Finally, a document like a procedure card, listing all of the documents that have been entered on a specific corporate file, is admissible as simply being a summary of those documents which are admissible in their own right." - See paragraphs 107 to 110.

Evidence - Topic 1600

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Bank records - [See first Evidence - Topic 1582 ].

Evidence - Topic 1600

Hearsay rule - Hearsay rule exceptions and exclusions - Business records - Particular records - Bank records - The Alberta Court of Queen's Bench stated that "Much of the evidence of the alleged fraud comes from financial records. In many cases financial records are being admitted here where deponents of the affidavits may not even be available and would clearly have no direct knowledge of the information. It is also clear that as the financial business changes the institutions rely less and less on their own internally created documents and more and more on documents that are supplied by third parties. If one were to take a restrictive perspective on the admission of hearsay these facts could, arguably, attack the reliability of these materials. After all, how can they be tested? My perspective is that approach fails to appreciate the flexible and functional operation of the general principle for the admission of hearsay. One cannot exclude the importance of common sense in a ruling of this nature. Nor can one remain uninformed about the rapidly changing business landscape since the fundamental statutory exceptions to the hearsay rule for business and banking records ([Canada Evidence Act], ss 29-30) were enacted. I intend in this judgment to use a generous helping of common sense in two ways: 1. to interpret those statutory exceptions to the hearsay prohibition in a manner that reflects the common law principles that they codify, and 2. if CEA, ss 29-30 do not have the elasticity to allow business records to be admitted through that principled interpretation of the legislation, then admission of hearsay evidence through the common law principled approach and the twin criteria of necessity and reliability will provide a broader but common sense anchor to evaluate the admissibility of these materials." - See paragraphs 84 to 86.

Cases Noticed:

R. v. Smith (A.L.), [1992] 2 S.C.R. 915; 139 N.R. 323; 55 O.A.C. 321; 94 D.L.R.(4th) 590, refd to. [para. 50].

Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965 (P.C.), refd to. [para. 50].

R. v. Khelawon (R.), [2006] 2 S.C.R. 787; 355 N.R. 267; 220 O.A.C. 338; 2006 SCC 57, refd to. [para. 50].

R. v. Starr (R.D.), [2000] 2 S.C.R. 144; 258 N.R. 250; 148 Man.R.(2d) 161; 224 W.A.C. 161; 2000 SCC 40, refd to. [para. 53].

Ares v. Venner, [1970] S.C.R. 608; 14 D.L.R.(3d) 4, refd to. [para. 53].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 83 D.L.R.(4th) 193, refd to. [para. 54].

R. v. D.O.L., [1993] 4 S.C.R. 419; 161 N.R. 1; 88 Man.R.(2d) 241; 51 W.A.C. 241; 85 C.C.C.(3d) 289, refd to. [para. 56].

R. v. K.G.B., [1993] 1 S.C.R. 740; 148 N.R. 241; 61 O.A.C. 1, refd to. [para. 57].

Myers v. Director of Public Prosecutions, [1964] 2 All E.R. 881 (H.L.), refd to. [para. 68].

R. v. O'Neil (B.) (2012), 524 A.R. 351; 545 W.A.C. 351; 2012 ABCA 162, leave to appeal denied (2013), 446 N.R. 393 (S.C.C.), refd to. [para. 70].

R. v. Monkhouse (1987), 83 A.R. 62; 56 Alta. L.R.(2d) 97 (C.A.), refd to. [para. 70].

R. v. Smith (K.R.) (2011), 510 A.R. 37; 527 W.A.C. 37; 2011 ABCA 136, leave to appeal denied (2012), 432 N.R. 400 (S.C.C.), refd to. [para. 88].

R. v. Mapara (S.) et al., [2005] 1 S.C.R. 358; 332 N.R. 244; 211 B.C.A.C. 1; 349 W.A.C. 1; 2005 SCC 23, refd to. [para. 89].

Rizzo & Rizzo Shoes Ltd. (Bankrupt), Re, [1998] 1 S.C.R. 27; 221 N.R. 241; 106 O.A.C. 1; 154 D.L.R.(4th) 193, refd to. [para. 92].

R. v. Araujo (A.), [2000] 2 S.C.R. 992; 262 N.R. 346; 143 B.C.A.C. 257; 235 W.A.C. 257; 2000 SCC 65, refd to. [para. 93].

R. v. Sharpe (J.R.), [2001] 1 S.C.R. 45; 264 N.R. 201; 146 B.C.A.C. 161; 239 W.A.C. 161; 2001 SCC 2, refd to. [para. 93].

R. v. A.D.H. (2013), 444 N.R. 293; 414 Sask.R. 210; 575 W.A.C. 210; 2013 SCC 28, refd to. [para. 93].

R. v. McMullen (1979), 25 O.R.(2d) 301; 100 D.L.R.(3d) 671 (C.A.), refd to. [para. 112].

R. v. Best (1978), 43 C.C.C.(2d) 236; 2 W.C.B. 489 (B.C.C.A.), refd to. [para. 112].

R. v. Jahanrakhshan (K.) (2013), 335 B.C.A.C. 178; 573 W.A.C. 178; 2013 BCCA 128, refd to. [para. 120].

R. v. Lodoen (L.A.) (2009), 480 A.R. 327; 2009 ABPC 274, disagreed with [para. 162].

R. v. Bell (1982), 35 O.R.(2d) 164; 65 C.C.C.(2d) 377 (C.A.), affd. [1985] 2 S.C.R. 287, refd to. [para. 162].

R. v. Harrer (H.M.), [1995] 3 S.C.R. 562; 186 N.R. 329; 64 B.C.A.C. 161; 105 W.A.C. 161, refd to. [para. 166].

R. v. McLarty (No. 3) (1978), 45 C.C.C.(2d) 184 (Ont. Co. Ct.), refd to. [para. 185].

R. v. Flett (D.E.) (2013), 419 Sask.R. 193; 2013 SKQB 155, refd to. [para. 186].

R. v. Grant (D.), [2009] 2 S.C.R. 353; 391 N.R. 1; 253 O.A.C. 124; 2009 SCC 32, refd to. [para. 221].

Lavallee, Rackel & Heintz et al. v. Canada (Attorney General), [2002] 3 S.C.R. 209; 292 N.R. 296; 312 A.R. 201; 281 W.A.C. 201; 164 O.A.C. 280; 217 Nfld. & P.E.I.R. 183; 651 A.P.R. 183; 2002 SCC 61, affing. (2000), 255 A.R. 86; 220 W.A.C. 86; 184 D.L.R.(4th) 25 (C.A.), refd to. [paras. 222, 230].

Multiform Manufacturing Co. et autres v. R. et autres, [1990] 2 S.C.R. 624; 113 N.R. 373; 32 Q.A.C. 241, refd to. [para. 232].

R. v. Porisky (R.A.), [2012] B.C.T.C. Uned. 68; 2012 BCSC 68; 2012 D.T.C. 5038, refd to. [para. 232].

R. v. Amell (D.P.) (2013), 414 Sask.R. 152; 575 W.A.C. 152; 2013 SKCA 48, refd to. [para. 232].

Siggelkow v. Canada (Attorney General) et al., [2013] A.R. Uned. 146; [2013] C.T.C. 139; 2013 ABQB 116, affd. [2013] A.R. Uned. 451; 2013 ABCA 388, refd to. [para. 232].

R. v. Wise, [1992] 1 S.C.R. 527; 133 N.R. 161; 51 O.A.C. 351; 70 C.C.C.(3d) 193, refd to. [para. 236].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 130 D.L.R.(4th) 235, refd to. [para. 236].

Statutes Noticed:

Business Corporations Act, R.S.A. 2000, c. B-9, sect. 259, sect. 272 [para. 108].

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 29(1), sect. 29(2), sect. 29(4), sect. 29(5), sect. 29(9) [para. 111]; sect. 30(1), sect. 30(2), sect. 30(3), sect. 30(6), sect. 30(10), sect. 30(11), sect. 30(12) [para. 113].

Government Organization Act, R.S.A. 2000, c. G-10, Schedule 12, sect. 9 [para. 94].

Land Titles Act, R.S.A. 2000, c. L-4, sect. 13, sect. 201 [para. 94].

Authors and Works Noticed:

Driedger, Elmer A., The Construction of Statutes (2nd Ed. 1982), p. 87 [para. 92].

Ewart, J. Douglas, Documentary Evidence in Canada (1984), pp. 12, 13 [para. 59].

McWilliams, Peter K., Canadian Criminal Evidence (5th Ed. 2013), pp. 23, 24 [para. 116].

Counsel:

James G. Pickard and Leah Boyd (Alberta Justice), for the Crown;

Alex S. Millman (Alexander Millman Law Office), for the accused, A. MacMullin;

Greg J. Worobec and K. Johnson (Worobec Law Offices), for the accused, R. Elander.

This matter was heard before Germain, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following judgment on December 19, 2013.