R. v. Martin (A.), (1997) 152 Sask.R. 164 (CA)

• Judge: Cameron, Sherstobitoff and Jackson, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: April 10, 1997
• Jurisdiction: Saskatchewan
• Citations: (1997), 152 Sask.R. 164 (CA);1997 CanLII 9717 (SK CA);[1997] 6 WWR 62;8 CR (5th) 246;140 WAC 164;152 Sask R 164

R. v. Martin (A.) (1997), 152 Sask.R. 164 (CA);

    140 W.A.C. 164

MLB headnote and full text

Her Majesty The Queen (appellant) v. Albert Martin (respondent)

(File No. 6868)

Indexed As: R. v. Martin (A.)

Saskatchewan Court of Appeal

Cameron, Sherstobitoff and Jackson, JJ.A.

April 10, 1997.

Summary:

The Canadian Wheat Board operated a cash advance payment system which per­mitted farmers to receive an advance pay­ment on the security of existing grain, by making solemn declarations swearing that he or she was able to deliver a certain quantity of grain. An accused was charged with six counts of defrauding the Canadian Wheat Board of more than $1,000 contrary to s. 380 of the Criminal Code by making solemn declarations which misrepresented the ton­nage of wheat and barley he had in store eligible for delivery. A jury acquitted the accused. The Crown appealed.

The Saskatchewan Court of Appeal allowed the appeal, set aside the acquittal and ordered a new trial.

Criminal Law - Topic 2005

Fraudulent transactions - Fraud - Elements of fraud - An accused was acquitted by jury on six counts of defraud­ing the Canadian Wheat Board - In allow­ing the Crown's appeal, the Saskatchewan Court of Appeal held that the trial judge misdirected the jury on the elements of fraud - See paragraphs 55 to 68.

Criminal Law - Topic 2008

Fraudulent transactions - Fraud - Jury charge - [See Criminal Law - Topic 2005 ].

Criminal Law - Topic 4357.1

Procedure - Jury charge - Directions re theory of Crown - An accused was charged with defrauding the Canadian Wheat Board - The Crown's case depended upon proving the quantity of stored grain - The trial judge refused to permit a Saskatchewan Crop Insurance auditor to convert measurements of stored grain (recorded on production summary forms) into a grain quantity, but permitted an explanation on conversion - The Saskatchewan Court of Appeal concluded that the judge erred in not permitting the auditor to perform the conversions - The forms were admissible as a record made in the ordinary course of business (Canada Evidence Act, s. 30) - The person who prepared the forms testified that he took the measurements - The auditor's testi­mony was not hearsay - Putting the for­mulae before the jury did not lessen their complexity and their effectiveness depended on proper application - The jury address might have left the jurors with the impression that they were not required to perform the conversion - See paragraphs 11 to 24.

Criminal Law - Topic 4399.6

Procedure - Jury charge - Directions re elements of offence - [See Criminal Law - Topic 2005 ].

Criminal Law - Topic 4399.8

Procedure - Jury charge - Directions re role of judge and jury - [See Criminal Law - Topic 4357.1 ].

Evidence - Topic 1504

Hearsay rule - General principles and definitions - What constitutes hearsay - [See Criminal Law - Topic 4357.1 ].

Evidence - Topic 1582

Hearsay rule - Exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - [See Criminal Law - Topic 4357.1 ].

Evidence - Topic 1582

Hearsay rule - Exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - An accused was charged with defrauding the Canadian Wheat Board by making solemn declara­tions which misrepresented the quantity of grain in his possession available for de­livery - The Crown, through the Director of the Statistics Branch at the Saskatchewan Department of Agriculture and Food, sought to present to the jury tables of estimated crop yield averages - The Statistics Branch had produced the tables from data received from Statistics Canada and other sources - The trial judge refused to admit the tables because they contained double hearsay - The Saskatchewan Court of Appeal concluded that the tables were admissible as a record made in the ordinary course of business (Canada Evidence Act, s. 30) - See para­graphs 25 to 54.

Evidence - Topic 1582

Hearsay rule - Exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - In addressing the admissibility of records made in the usual and ordinary course of business (Canada Evidence Act, s. 30(1)), the Saskatchewan Court of Appeal stated that the "[o]pening words of s. 30(6) appear to permit a con­sideration of weight to be made when the court considers admissibility. But if this means a court must reject a record because it contains double hearsay, it places docu­ments prepared in the ordinary course of business in a fundamentally different cate­gory than documents admitted pursuant to the common law business duty exception. ... weight is an issue to be addressed after the document is accepted as evidence. The circumstances in which the information was gathered or the record produced, or the lack of such evidence, may affect the weight to be given to it by the trier of fact, but it does not affect its admissibility." - See paragraph 48.

Evidence - Topic 1582

Hearsay rule - Exceptions and exclusions - Business records - Regular entries - Entries or records made in the regular course of a business - The Saskatchewan Court of Appeal stated that "[a]s a general rule, documents made in the ordinary course of business [Canada Evidence Act, s. 30(1)] are admitted to avoid the cost and inconvenience of calling the record keeper and the maker. As a matter of necessity the document is admitted. Proof that a document is made in the ordinary course of business prima facie fulfils the qualifi­cation that in order for hearsay to be ad­mitted it must be trustworthy." - See paragraph 49.

Cases Noticed:

R. v. Vézeau, [1977] 2 S.C.R. 277; 8 N.R. 235, refd to. [para. 2].

R. v. Evans (B.J.), [1993] 2 S.C.R. 629; 153 N.R. 212; 28 B.C.A.C. 81; 47 W.A.C. 81, refd to. [para. 2].

Myers v. Director of Public Prosecutions, [1965] A.C. 1001, refd to. [para. 32].

Ares v. Venner, [1970] S.C.R. 608, refd to. [para. 32].

R. v. Anthes Business Forms Ltd. (1975), 22 N.R. 589; 19 C.C.C.(2d) 394 (Ont. H.C.), affd. (1975), 22 N.R. 547; 26 C.C.C.(2d) 349 (Ont. C.A.), affd. (1977), 22 N.R. 541; 32 C.C.C.(2d) 207 (S.C.C.), refd to. [para. 40].

R. v. Penno (1977), 35 C.C.C.(2d) 266 (B.C.C.A.), refd to. [para. 41].

R. v. Grimba (1978), 38 C.C.C.(2d) 469 (Ont. Co. Ct.), refd to. [para. 42].

R. v. Biasi (1982), 62 C.C.C.(2d) 304 (B.C.S.C.), refd to. [para. 43].

R. v. Boles, Gani and Hendrickson (1985), 57 A.R. 232 (C.A.), refd to. [para. 44].

R. v. Ross (W.) (1992), 92 Nfld. & P.E.I.R. 51; 287 A.P.R. 51 (Nfld. T.D.), refd to. [para. 44].

R. v. Zlatic (Z.), [1993] 2 S.C.R. 29; 151 N.R. 81; 54 Q.A.C. 161, refd to. [para. 57].

Statutes Noticed:

Canada Evidence Act, R.S.C. 1985, c. C-5, sect. 30(1), sect. 30(6), sect. 30(12) [para. 34].

Authors and Works Noticed:

Ewart, J.D., Documentary Evidence in Canada (1984), pp. 12 [para. 31]; 46, 47 [para. 32]; 88, 89 [para. 39].

Counsel:

J.H. Clyne Harradence, Q.C., for the re­spondent;

C. Snell, Q.C., for the Crown.

This appeal was heard on September 17, 1996, before Cameron, Sherstobitoff and Jackson, JJ.A., of the Saskatchewan Court of Appeal.

Jackson, J.A., delivered the following judgment for the Court of Appeal on April 10, 1997.