James v. Canada
T-622-93
Rothstein J.
27/6/96
5 pp.
Application to introduce into evidence copies of entries in banking documents pursuant to Canada Evidence Act, s. 29-Banking documents attached to affidavits of bank employees who deposed documents ordinary records of bank, maintained in custody and control of bank, entries made in usual, ordinary course of business-Affidavits sworn in 1984 in respect of criminal proceedings arising out of same events in respect of plaintiff's income tax liability-Application allowed-That affidavits sworn in respect of criminal proceedings of no consequence-S. 29 not requiring affidavits be case specific-S. 29 reflecting legislative response to two criteria underpinning exceptions to hearsay rule, i.e. necessity and circumstantial guarantee of trustworthiness: Documentary Evidence in Canada by J. Douglas Ewart, Agincourt, Ont.: Carswell, 1984-Banks stand alone as to extent to which records required as evidence in proceedings to which not party-As to necessity, if copies of bank records not admissible to speak for themselves, banking would halt as original records tied up in court proceedings-Indicating legislative intention s. 29 receive broad, liberal interpretation-As to circumstantial guarantee of trustworthiness, banking records must be reliable for bank to stay in business-S. 29 not stating when affidavit to be sworn in relation to proceedings in which to be used-Twelve years between date affidavit sworn and date used extraordinary, but not undermining circumstantial guarantee of trustworthiness of banking records-That books, records may no longer be in existence possibly prejudicial to plaintiff as not having opportunity of checking original documents-Having regard to issues of necessity, circumstantial guarantee of trustworthiness, any prejudice minimal or non-existent-Open to plaintiff to make submissions as to weight to be given to evidence-Canada Evidence Act, R.S.C., 1985, c. C-5, s. 29 (as am. by S.C. 1994, c. 44, s. 90).