R v John

R. v. John

2018 ONCJ 787
Ontario Court of Justice — Justice D.A. Harris | November 2, 2018

Background

David John was charged with operating an electrical contracting business without a license and failing to obtain permits for work at two properties on Wettlaufer Terrace in Milton between May and June 2015. The homeowners, Rafael Rivera and Jeff Chiasson, had hired someone identifying himself as David John to do electrical work. When John didn't show up for trial, it proceeded without him. The justice of the peace convicted him on all four charges and sentenced him to $10,000 fines per offence plus five days in jail.

The case relied heavily on a statement John allegedly made to investigator Roger Neal (a retired police officer working for the Electrical Safety Association), plus records from the ESA showing no permits were issued and John wasn't licensed. John appealed, arguing the evidence was improperly admitted and the sentence was unfair.

Issues

1. Whether John's statement to investigator Neal should have been admitted without a voir dire on voluntariness
2. Whether the ESA business records were properly admitted as evidence
3. Whether the identification evidence was sufficient
4. Whether the sentence was appropriate

The Evidence Problems

Justice Harris found multiple serious errors. First, investigator Neal was clearly a "person in authority" — a retired cop working as an investigator who swore the charges and prepared the Crown brief. Under the Ibrahim rule, any statement to a person in authority must be proven voluntary beyond a reasonable doubt through a voir dire. The justice of the peace never held this hearing and simply let Neal testify about John's alleged admissions.

Second, the ESA records were hearsay evidence that didn't meet the requirements for business records exceptions. The witnesses couldn't prove the records were made contemporaneously by someone with personal knowledge under a duty to record. Under Ontario's Evidence Act section 34.1, electronic records need specific preconditions that weren't established.

The court noted that even in ex parte proceedings (trials where the defendant doesn't appear), the Crown must still prove guilt beyond a reasonable doubt using proper evidence rules. A defendant's absence doesn't lower the evidentiary standards.

The Sentencing Disaster

Justice Harris was particularly critical of the sentencing process. The Crown asked only for fines, but the justice of the peace unilaterally decided to add five days imprisonment. Ontario Court of Appeal precedent requires trial judges to give good reasons before exceeding the Crown's sentence request, especially in ex parte trials.

Worse, the justice made inflammatory comments about John being a "travel by night operator" and suggested he would "throw the paperwork in the recyclable" — all without any evidentiary basis. She also made assumptions about John's "attitude" for not appearing, without knowing why he was absent.

Key Takeaway

Even when you don't show up for trial, the Crown still has to follow proper evidence rules — and they didn't here.

The Court of Appeal ordered a new trial because without the improperly admitted statement and records, there was no evidence John was unlicensed or that he failed to get permits. The case shows that procedural fairness and evidence rules protect defendants even in their absence.