Procedural Necessity or Mere Technicality: Documentary Evidence Standards in R. v. McIvor

On March 20, 2008, the Supreme Court of Canada released its decision in R. v. McIvor, 2008 SCC 11. The issue on appeal dealt with the evidentiary requirements for establishing a breach of a conditional sentence order under s. 742.6 of the Criminal Code of Canada. More specifically, the SCC addressed whether the supervisor’s report must include signed statements of witnesses to prove the allegation of a breach of conditions. The Code provision dealing with this concern is s. 742.6(4), which reads:

(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.

Additionally, s. 742.6(9) discusses what the court may do, if it is satisfied that the offender has without reasonable excuse breached their conditional sentence order. The court is permitted, under subsection (d), to terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence. This is what occurred as a result of Ms. McIvor’s initial hearing on the issue of an alleged breach of her conditional sentence.

On September 20, 2005, Ms. McIvor was sentenced to a 12-month conditional sentence for property-related offences. Her conditional sentence required that she (1) not be in the direct company of her co-accused, Dean Pelley, without permission from her sentence supervisor, (2) unless authorized by her supervisor, or required to be outside her residence for a bona fide medical emergency, obey a curfew between the hours of 9pm and 7am, (3) keep the peace and be of good behaviour, and (4) not possess identification, credit cards, cheques or documents in any name other than her own.

It was alleged that Ms. McIvor did breach all four conditions five days later, revelations that came to light when she was involved in a motor vehicle collision. The circumstances surrounding the collision revealed that she was a passenger in a vehicle that was driven by Mr. Pelley, she was outside of her residence past her curfew, she was in possession of stolen property located in the vehicle, and some of the stolen property included identification and other documents in the names of third parties.

At the hearing following this breach, the Crown relied exclusively on the supervisor’s report that set out the relevant conditions, and stated that Ms. McIvor did not have permission to be engaging in the alleged activities. Attached to this report was a police report prepared by the investigating officer, summarizing information provided by several witnesses to the motor vehicle collision. The officer was not a witness to any of the material facts, and his report was not signed. Additionally, no signed statements from any of the witnesses were included in the officer’s report.

Despite these procedural shortcomings, the hearing judge found Ms. McIvor in breach of her conditions. Accordingly, he terminated the conditional sentence order and committed her to custody for the remainder of her sentence. Though defence counsel argued that the breach allegations should be dismissed because the supervisor failed to include the necessary signed statements of witnesses with his report, contrary to s. 742.6(4), the judge said that it would not be appropriate for the court to insist on the “technicality” of requiring a signature, given the scheme of the section.

This decision was overturned by a majority of the B.C. Court of Appeal. Smith J.A. held that the hearing judge misapprehended Ms. McIvor’s argument; the judge had erroneously focused on the issue of whether the report was signed, rather than on the content of the report. While conducting an analysis of the latter, Smith J.A. said that the police report could not be a witness statement within the meaning of s. 742.6(4) because a witness is a person present at, and able to provide information about, an event. Such witnesses would then give statements that refer to written accounts of the facts alleged to constitute a breach. Because the supervisor’s report lacked signed statements of witnesses, it could therefore not be admitted in evidence. The appeal court restored the conditional sentence, setting aside the hearing judge’s previous order.

At the SCC, a similar finding was made. While considering the sole issue of documentary proof under s. 742.6(4), the Supreme Court did not accept the Crown’s argument that whether or not to include signed statements of witnesses should be left entirely to the discretion of the supervisor or the prosecutor, as this argument does not consider the mandatory language of the section. S. 742(6)(4) says that the alleged breach “must” be supported by a written report of the supervisor, which “must” include signed statements of witnesses if they are available.

The SCC also considered parliamentary intent in coming to its decision. The Crown argued that the supervisor’s report is admissible regardless of how it was formulated, but the SCC reasoned that this would mean that the supervisor alone in all cases could provide admissible evidence regarding any breach. This would even be so regardless of if he or she had any direct knowledge of the material facts alleged to constitute the breach. If this was the intention of Parliament, the SCC stated, then there would have been no need to make reference to signed statements of witnesses at all, let alone require that they be included where appropriate. The Crown’s argument was inconsistent with parliamentary intent, and was therefore not adopted by the SCC.

The SCC further noted that the Crown’s position significantly departs from the rules of evidence that ordinarily deal with the scope of a witness’s admissible testimony. In this case, the Crown was asking that the supervisor himself, “from the viewpoint of his desk,” provide evidence that Ms. McIvor breached her conditions. The SCC stated that even proof of service of the report requires a more demanding standard than that proposed by the Crown for proof of the breach, as s. 742.6(6) says that service of the report may be proven by oral evidence under oath, or an affidavit or solemn declaration, by the person claiming to have served it.

After analyzing the Crown’s position in this fashion, the SCC went on to assess s. 742.6(4) under evidentiary rules, finding that the legislative scheme merely allows the Crown to prove the breach by adducing commentary from the evidence it would otherwise have been required to present as viva voce evidence. This finding means that if the statements would not have been admissible as viva voce evidence, then they should similarly not be admitted under s. 742.6(4). Since an unsigned report from an officer who was not present for the material facts would not be admitted viva voce, the SCC was in agreement with the Court of Appeal in not admitting the supervisor’s unsigned statement.

Before concluding, however, the SCC clarified the decision of the BCCA in its characterizing of the documents that may be introduced under the section as “firsthand knowledge.” Rather, the SCC referred to common law evidence rules in noting that a witness’s testimony is not necessarily restricted to personal observations. The SCC acknowledged that in some cases, the supervisor could be in a position to provide all the information necessary to prove the allegation of a breach. For example, the supervisor could speak to the breach of failure to report, or a refusal to attend for counselling. In the case at issue, the supervisor could indeed attest to the fact that he never gave Ms. McIvor written permission to be out beyond her curfew or to be in the company of Dean Pelley. However, the supervisor could not have provided admissible testimony about any of the facts alleged to constitute the breaches if called to testify. To the extent that the supervisor’s report exceeded these boundaries, it was inadmissible as proof of the breach. It therefore became necessary to include signed statements of witnesses from those persons who could provide the information about the material facts.

In its concluding statements, the SCC wrote that this Code section demonstrates a balance between the need for an efficient process and the requirements of procedural fairness. The provision allows the prosecution to present all of its evidence in documentary form, and doesn’t require witnesses to be brought before the court in every case. On the other hand, a minimum level of reliability is assured by the requirement that signed statements of witnesses are included. The SCC drew a distinction between having actual witnesses attesting to material facts by providing their signature, and a police officer repeating information received by witnesses or a supervisor relating information third-hand. Overall, this provision was commended for its successful balancing act between these two competing concerns.

The SCC ultimately held that the hearing judge had no admissible evidence before him upon which to base his finding that Ms. McIvor breached her conditional sentence, and his termination of the conditional sentence order was held to be in error. As Ms. McIvor had already fully served her sentence by the time of the appeal decision, the SCC made no further order.

From a criminal procedure perspective, this case is important in that the SCC has reinforced procedural standards of fairness. More than merely insisting on the requirement of signing statements, the holding in R. v. McIvor explicitly aligns the admissibility of documentary evidence with that of viva voce evidence. The case effectively stands for the principle that the inadmissible evidence of live witnesses is similarly inadmissible in documentary evidence. Though courtroom procedure may be expedited by admitting signed statements in lieu of court attendance, the SCC in McIvor has further solidified the standards that must be upheld in admitting such statements into evidence.