R. v. Kennedy

R. v. Kennedy

Exhibit VD1 is inadmissible. The court found the entry lacked sufficient circumstantial guarantees of trustworthiness (it was a brief comment that may be an incomplete record and employees were not required to use that form), and necessity was not established because the maker was available; further, the statutory...

Source-derived case information.

Citation
2008 NSPC 73
Parties
Prosecution: Her Majesty the Queen; Defendant: James Kennedy
Court
Nova Scotia Provincial Court
Jurisdiction
Canada
Judgment Date
10 December 2008
Procedural Posture
Criminal Fisheries Act Prosecution / Voir Dire (pre Trial Admissibility)
Outcome
Exhibit VD1 excluded; document not admitted into evidence
Legal Topics
Hearsay, Business Records, Admissibility, Canada Evidence Act S.30(7), Vessel Monitoring System (vms)
Source Language
english
Criminal Law Evidence Law Administrative/regulatory Enforcement Hearsay Business Records Admissibility Canada Evidence Act S.30(7) Vessel Monitoring System (vms)

Source-derived case record

Summary, issues, holding and outcome

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Parties

Her Majesty the Queen

Prosecution

James Kennedy

Defendant

Procedural Posture

Criminal Fisheries Act Prosecution / Voir Dire (pre Trial Admissibility)

Legal Issues

  1. 1 Whether the JouBeh/MetTrac computer printout (Exhibit VD1) required notice under s.30 of the Canada Evidence Act
  2. 2 If notice under s.30 was required, whether the court should waive the notice requirement under s.30(7)
  3. 3 Whether the document is admissible under the common law business records exception or the principled hearsay exception (reliability and necessity)

Ratio Decidendi

Exhibit VD1 is inadmissible. The court found the entry lacked sufficient circumstantial guarantees of trustworthiness (it was a brief comment that may be an incomplete record and employees were not required to use that form), and necessity was not established because the maker was available; further, the statutory notice requirement in s.30(7) was not complied with and waiver would be inappropriate given the document's potential significance and lack of effective prior notice. Therefore the s.30(7) requirement was not waived and the document is excluded.

Court Disposition

Exhibit VD1 excluded; document not admitted into evidence

Orders

  • Exhibit VD1 is excluded from evidence