« Documents des institutions financières » : différence entre les versions
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==Principes généraux== | ==Principes généraux== | ||
Version du 22 juin 2024 à 14:05
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Principes généraux
Section 29 of the Canada Evidence Act governs the admissibility of records from financial institutions. The separate regime from business records recognizes the high degree of reliability in business documents from financial institutions by permitting "any book or record kept in a financial institution" to be "prima facie proof of the transaction they record."[1]
Section 29 states:
- Copies of entries
29 (1) Subject to this section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions and accounts therein recorded.
- Admission in evidence
(2) A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a true copy of it, and such proof may be given by any person employed by the financial institution who has knowledge of the book or record or the manager or accountant of the financial institution, and may be given orally or by affidavit sworn before any commissioner or other person authorized to take affidavits.
- Cheques, proof of “no account”
(3) Where a cheque has been drawn on any financial institution or branch thereof by any person, an affidavit of the manager or accountant of the financial institution or branch, sworn before any commissioner or other person authorized to take affidavits, setting out that he is the manager or accountant, that he has made a careful examination and search of the books and records for the purpose of ascertaining whether or not that person has an account with the financial institution or branch and that he has been unable to find such an account, shall be admitted in evidence as proof, in the absence of evidence to the contrary, that that person has no account in the financial institution or branch.
[omis (4), (5), (6) and (7)]
- Computation of time
(8) Holidays shall be excluded from the computation of time under this section.
[omis (9)]
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.
- Purpose of Section 29
Both s. 29 and 30 are mean to "reduce the barriers to the admissibility of business and banking records."[2]
It is intended to acknowledge Parliament's "vote of confidence in banking records" and avoid "inconvenienc[ing] bankers."[3]
- Types of Records
Financial records generally capture those records relating to "contemporaneous record of customary entries in the usual and ordinary course of business."[4] There is some suggestion that those records held by financial institutions unrelated to banking transactions cannot be authenticated under s. 29, but rather should be admitted as business records under s. 30 of the CEA.[5]
For the purposes of s. 29, "record" can include computer printouts.[6]
- "True Copies"
A "true copy" is any copy that can be said to be accurate in all essential particulars, so that no one can be misled as to the effect of the record.[7] It is preferred but not necessary for the authenticating witness to specifically declare the documents to be "true and accurate" copies. However, the assertion that as to their reliability may be sufficient.[8]
- Relationship with Section 30 of Evidence Act
The notice provisions of s. 30 do not apply for financial records under s. 29.[9]
- "Entry"
An "entry" is "an ordinary financial or bookkeeping entry" which includes any explanatory words that aim to “identify or clarify the entry”.[10] Accordingly the record keeper may include in his affidavit limited explanatory evidence of the entries. However, where it is either self-explanatory, overly interpretive, or on a contentious matter then it should not be included.[11]
- "Financial Institution"
Under s. 29(9) of the CEA, a "financial institution" refers to "the Bank of Canada, the Business Development Bank of Canada and any institution that accepts in Canada deposits of money from its members or the public, and includes a branch, agency or office of any of those Banks or institutions;"
29
[omis (1), (2), (3), (4), (5), (6), (7) and (8)]
(9)
...
"financial institution" means the Bank of Canada, the Business Development Bank of Canada and any institution that accepts in Canada deposits of money from its members or the public, and includes a branch, agency or office of any of those Banks or institutions;
...
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.
- ↑
R c MacMullin, 2013 ABQB 741 (CanLII), 579 AR 205, par Germain J, au para 112
R c McMullen, 1979 CanLII 1867 (ON CA), 25 OR (2d) 301, 100 DLR (3d) 671, par Morden JA
R c Best, 1978 CanLII 2307 (BC CA), 43 CCC (2d) 236, 2 WCB 489 (BCCA), par Carrothers JA
- ↑
MacMullin, supra, au para 115
- ↑
, ibid., au para 116
Douglas Ewart, Documentary Evidence in Canada (Carswell Legal Publication, 1984, au p. 120
S.C. Hill, McWilliams’ Canadian Criminal Evidence, 5th ed (Toronto: Canada Law Book, 2013) pp 23-24
- ↑ R c Tewolde, 2007 ONCJ 555 (CanLII), par G. Campbell J
- ↑ , ibid.
- ↑
R c McMullen, 1979 CanLII 1867 (ON CA), 47 CCC (2d) (Ont. C.A.), par Morden JA
R c Bell, 65 CCC (2d) 376(*pas de liens CanLII)
- ↑
R c Morash (1982) 17 MVR 34 (SKQB)(*pas de liens CanLII)
citing Commercial Credit Co. of Canada v Fulton Brothers , [1923] AC 798 (PC) (UK)
- ↑ Tewolde, supra
- ↑ Best, supra
- ↑
MNR v Furnasman Ltd, [1973] F.C. 1327 (Fed. Ct. T.D.)(*pas de liens CanLII)
per Addy J, au para 19
R c Bath, 2010 BCSC 1138 (CanLII), par Holmes J - ↑ e.g. Bath, supra
Affidavit
For documents to be admissible under s. 29 of the CEA, the party seeking to admit the document must show pursuant to s. 29(2) that:
- the book or record was, at the time of making of the entry, one of the ordinary books or record of the financial institutions;
- that the original book or record is in the custody or control of the financial institution nad
- the copy is a "true copy"
All these elements can be proven by way of affidavit usually from the manager or accountant of the institution. However, there is no specific requirement as to whom it must be from.
The affidavit will set out:[1]
- that the deponent is an employee of the financial institution;
- that the original (or "parent") document is in possession of that institution;
- that the deponent certifies that the copy presented to the court is a true copy.
- ↑
R c MacMullin, 2013 ABQB 741 (CanLII), 579 AR 205, par Germain J, au para 119
Proof of Official Character
29
[omis (1), (2) and (3)]
- Proof of official character
(4) Where evidence is offered by affidavit pursuant to this section, it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.
[omis (5), (6), (7) and (8)]
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.
Notice
Any records that are admissible under s. 29 do not need notice to produce.[1]
- ↑
R c Best, 1978 CanLII 2307 (BC CA), 43 CCC (2d) 236, 2 WCB 489 (BCCA), par Carrothers JA
Bank Officials Immunity From Subpoena
Section 29(5) protects bank officials from being subject to subpoenas if the documents or records "sought to be produced can be produced in the manner contemplated by this act."[1]
29
[omis (1), (2), (3) and (4)]
- Compulsion of production or appearance
(5) A financial institution or officer of a financial institution is not in any legal proceedings to which the financial institution is not a party compellable to produce any book or record, the contents of which can be proved under this section, or to appear as a witness to prove the matters, transactions and accounts therein recorded unless by order of the court made for special cause.
[omis (6), (7), (8) and (9)]
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.
- ↑
R c MacMullin, 2013 ABQB 741 (CanLII), 579 AR 205, par Germain J, au para 117
Right of Inspection
29
[omis (1), (2), (3), (4) and (5)]
- Order to inspect and copy
(6) On the application of any party to a legal proceeding, the court may order that that party be at liberty to inspect and take copies of any entries in the books or records of a financial institution for the purposes of the legal proceeding, and the person whose account is to be inspected shall be notified of the application at least two clear days before the hearing thereof, and if it is shown to the satisfaction of the court that he cannot be notified personally, the notice may be given by addressing it to the financial institution.
[omis (7), (8) and (9)]
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.
Execution of Search Warrants Upon Financial Institutions
29
[omis (1), (2), (3), (4), (5) and (6)]
- Warrants to search
(7) Nothing in this section shall be construed as prohibiting any search of the premises of a financial institution under the authority of a warrant to search issued under any other Act of Parliament, but unless the warrant is expressly endorsed by the person under whose hand it is issued as not being limited by this section, the authority conferred by any such warrant to search the premises of a financial institution and to seize and take away anything in it shall, with respect to the books or records of the institution, be construed as limited to the searching of those premises for the purpose of inspecting and taking copies of entries in those books or records, and section 490 of the Criminal Code does not apply in respect of the copies of those books or records obtained under a warrant referred to in this section.
[omis (8) and (9)]
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.
Misc Definitions
29
[omis (1), (2), (3), (4), (5), (6), (7) and (8)]
- Definitions
(9) In this section,
"court" means the court, judge, arbitrator or person before whom a legal proceeding is held or taken;
...
"legal proceeding" means any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration.
R.S., 1985, c. C-5, s. 29; 1994, c. 44, s. 90; 1995, c. 28, s. 47; 1999, c. 28, s. 149.