Ontario Criminal


Under common law exemplifications admissible without formal notice to accused

Appeal by Crown from acquittal of accused on one charge of wilfully obstructing peace officer in execution of his duty and on two charges of failing to comply with recognizance. Police stopped vehicle in early morning hours of Feb. 25, 2013. Vehicle contained five males and when accused was asked for his identification because of his seatbelt infraction he orally provided police with false name. Crown claimed that accused lied to police because he was bound by two recognizances that required him to be within confines of his residence at that time of night. Police soon discovered his true identity and existence of recognizances. Crown provided package of documents to establish accused’s guilt on failure to comply charges. These documents were certified by local registrar of Superior Court of Justice and they displayed court’s red seal and they were known as exemplifications. Accused was acquitted of two failures to comply charges after judge ruled that documentary evidence tendered by Crown was inadmissible because Crown was alleged to have not met statutory requirement for notice pursuant to s. 28 of Canada Evidence Act. Accused successfully applied for directed verdict of acquittal for obstruction charge because trial judge concluded that there was no evidence that name that accused provided to police was false name. Appeal allowed. New trial was ordered before different trial judge. Under common law exemplifications were admissible without formal notice to accused and judge erred in law by requiring notice. This conclusion required new trial to be ordered for both failures to comply charges. Regarding obstruction charge judge erred when he concluded that there was no evidence that name that accused provided police was false. There was evidence upon which reasonable jury, properly instructed, could return guilty verdict for this charge and new trial was also required for this offence.

R. v. Bailey (Sep. 23, 2014, Ont. S.C.J., Kenneth L. Campbell J., File No. 106/13) 116 W.C.B. (2d) 218.

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