Electronic Evidence 1996


Footnote: 1Uniform Law Conference of Canada, 1995 Proceedings, p. 67.

Footnote: 2E.A. Tollefson, "Admissibility of Computer-Produced Evidence in Proceedings Within Federal Jurisdiction", Uniform Law Conference of Canada, 1995; Ken Chasse, "Computer-Produced Records in Court Proceedings", Uniform Law Conference of Canada, June 1994. For a short-form statute, see John Gregory, "Proposals for a Uniform Electronic Evidence Act", Uniform Law Conference of Canada, 1995; for a long-form statute, see Tollefson, supra, at 21-40. These papers are available at the Web site of the Uniform Law Conference: http://www.law.ualberta.ca/alri/ulc.

Footnote: 3Another important topic is electronic data interchange (EDI). In EDI, of which e-mail is perhaps the most familiar example, two (or more) parties can exchange information over computer or phone lines. I have chosen not to discuss this topic, partly for reasons of space, but also because I am inclined to agree with the view expressed by Chasse, supra note 2, at 5, that EDI is likely to be more problematic in contract law rather than evidence law. For example, if goods are bought and sold by EDI, it may be that the purchase order states that title will pass on delivery, while the seller's invoice states that title will pass when the order is placed. But this is just the familiar "battle of the forms" in an electronic guise. (On the "battle of the forms", see Stephen M. Waddams, The Law of Contracts, 3d ed. [Toronto: Canada Law Book, 1993], ¶¶65-72.) For a more detailed discussion of EDI, see John D. Gregory, "Electronic Documents in Ontario's Photoradar System" (1995) 6 J.M.V.L. 277 at 279-280.

Footnote: 4Other media, such as bar codes and punched cards, can also be used to represent data. See Chasse, supra note 2, at 4, for further examples of the electronic representation of data.

Footnote: 5E.g., Canada Evidence Act, s. 30(12) ("record" defined as including "the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced ..."); Ontario Evidence Act, s. 35 ("record" defined as "any information that is recorded or stored by means of any device"). The recent New Brunswick amendments relating to electronic evidence define "document" as "any record of information, however recorded or stored, whether in printed form, on film, by electronic means or otherwise". Evidence Act, R.S.N.B. 1973, c. E-11, as am. by S.N.B. 1996, c. 52, s. 1 (not in force).

Footnote: 6It is possible that, in some courtroom of the future, computer terminals would be available to all participants in the trial, so that computer records could be viewed without being produced on paper. This possibility does not substantially affect the basic issues to be discussed in this paper.

Footnote: 7The "original document" rule should be thought of as a special case of the "best evidence" rule, though it is doubtful whether the "best evidence" rule has strict application elsewhere. See S.A. Schiff, Evidence in the Litigation Process, 4th Student ed., vol. 2 (Toronto: Carswell, 1993) at 811 and at 842.

Footnote: 825 O.R. (2d) 301, 47 C.C.C. (2d) 499 (C.A.), aff'g 42 C.C.C. (2d) 67, 6 C.R. (3d) 218 (Ont.H.C.J.) [hereinafter McMullen cited to O.R.].

Footnote: 9Ibid. at 304, quoting from case stated by trial judge.

Footnote: 10Ibid. at 305, quoting from Linden J.

Footnote: 11Ibid. at 309.

Footnote: 12(1982), 35 O.R. (2d) 164, 65 C.C.C. (3d) 377 (C.A.) [hereinafter Bell and Bruce cited to O.R.]. Bell and Bruce was affirmed in very brief reasons that expressed agreement with the Court of Appeal: [1985] 2 S.C.R. 287.

Footnote: 13For a "copy" to be admissible under s. 29(2), the financial institution must have the "record" in its "custody and control". This requirement obviously entails that the record has not been destroyed.

Footnote: 14Ibid. at 166, original emphasis.

Footnote: 15Ibid. at 167.

Footnote: 16In the same vein, the Court seemed impressed by the fact that the print-out was "the only source of reference available to the bank as to the state of the bank account, saving the possibility of compiling a new statement by seeking out the original deposit slips, cheques, etc."; similarly, the Court was unconcerned by the fact that there was no direct proof of how some other bank statements offered in the case were generated. Ibid. at 167.

Footnote: 17Chasse, supra note 2, at 10, says that Bell and Bruce "refined" McMullen. Others believe that Bell and Bruce implicitly overrules McMullen. Tollefson, supra note 2, at 5, points out that if Bell and Bruce does supersede McMullen, it leaves the following question unanswered: "what is the record where there is a printout which is relied upon on a daily basis, but the information still remains on the memory of the computer?" The two cases may not be logically incompatible, but each has a different view of the meaning of the words in the statute.

Footnote: 18In a number of other cases, the courts have tried to fit computer-generated documents into the language of the Canada Evidence Act , but without detailed discussion and without any attention to the question of the reliability of the system that produced the record. The British Columbia Court of Appeal has held that a computer print-out is a "record" within the meaning of s. 30 of the Canada Evidence Act: R. v. Vanderberghe (1976), 6 C.R. (3d) 222 (B.C.C.A.) (computer print-out of a bank's records); R. v. Bicknell (1988), 41 C.C.C. (3d) 545 (B.C.C.A.)

(print-out of computer records of phone calls). In contrast, the view in Nova Scotia is that the computer's memory is the "record" and that a print-out is the "copy": R. v. Sunila and Solagman (1986), 26 C.C.C. (3d) 331 (N.S.S.C.T.D.) (print-out of information stored in a computer during investigation by Canadian Forces a "copy" under Canada Evidence Act s. 30); R. v. Hanlon (1985), 69 N.S.R. (2d) 266, 163 A.P.R. 266 (Co.Ct.) (print-out of information stored in Department of Fisheries computers a "copy" under Canada Evidence Act ss. 26, 28(1)).

Footnote: 19See Chasse, supra note 2, at p. 5 and Appendix D, and Tollefson, supra note 2, at 14-15, for a discussion of imaging. It may be implausible for a firm to go to the trouble of printing out and the optically imaging these records. I include imaging not for realism but to enrich the hypothetical.

Footnote: 20This hypothetical is based on a simplified, but computerized, version of the facts in Myers v. D.P.P., [1965] A.C. 1001, [1964] 2 All E.R. 881 (H.L.). The point at issue in the case was whether microfilmed records, though hearsay, were admissible. Because of the absence of any statutory or established common law exception to the hearsay rule for records of this sort, the House of Lords held that

they were not admissible. In Canada, they would likely be admissible under s. 30 of the Canada Evidence Act. My focus here is not on the hearsay aspect, but on the record-keeping aspect.

Footnote: 21See note 5 supra, and Tollefson, supra note 2, at 5.

Footnote: 22E.g. Canada Evidence Act , s. 30(12); Ontario Evidence Act, s. 34(1)(b).

Footnote: 23Tollefson, supra note 2, at 6, points out that, under s. 30, if a print-out is a "record", its proponent need only prove that it was made in the usual and ordinary course of business; but if it is a "copy", foundation evidence is required. "The irony is that the document which is presented in evidence in each case is identical".

Footnote: 24Section 35(1) states: "'record' includes any information that is recorded or stored by means of any device."

Footnote: 25Chasse, supra note 2, at 16. I am not concerned with the billing of phantom disbursements to the client, since this phenomenon could occur regardless of the firm's record-keeping system.

Footnote: 26This would seem to be the result if s. 35 was applied as it stands: s. 35(4) provides that "The circumstances of the making of such a writing or record, including lack of personal knowledge by the maker, may be shown to affect its weight, but such circumstances do not affect its admissibility."

Footnote: 27Statutes dealing with documentary evidence typically do not distinguish between business records offered by a party to an action and business records obtained from third parties, but see Ontario Evidence Act, s. 33. In Tecoglas, Inc. v. Domglas, Inc. (1985), 51 O.R. (2d) 196 (H.C.J.) a party was permitted to offer its own computer records to prove its damages at trial where the records had been subject to scrutiny during discovery. The court seemed unconcerned about the possibility that the records had been deliberately or negligently altered. The recent New Brunswick amendments, supra note 5, do not make this distinction either, but do require that a printout of an imaged record be a true copy (new s. 47.1(3)(c)) and that a printout of an electronically stored document be unaltered from its original storage (new s. 47.2(2)(b)).

Footnote: 28Cf. Tollefson, supra note 2, at 3 and at 6.

Footnote: 29Chasse, supra note 2, at 25-26. The recent New Brunswick amendments do not adopt this check-list approach, preferring instead a more general requirement that the document be shown to be unaltered: supra note 27.

Footnote: 30Schiff, supra note 7, at 842.

Footnote: 31Chasse, supra note 2, at 13; see also UNCITRAL Draft Model Law, ibid. at 52-53, which does not distinguish between "best evidence" and authenticity where computer-generated evidence is offered when an "original" would otherwise be required.

Footnote: 32R. v. Smith (1992), 75 C.C.C. (3d) 257. This trend is so pronounced that "[a]n argument can even be made that there is no longer a ban on hearsay evidence." Chasse, supra note 2, at 2; see also Tollefson, supra note 2, at 9.

Footnote: 33The recent amendment to the New Brunswick Evidence Act does not expressly refer to the hearsay issue; printouts of electronic images and printouts of computer records are "admissible in evidence in all cases and for all purposes for which the original document would have been admissible." Evidence Act, R.S.N.B. 1973, c. E-11, as am. by S.N.B. 1996, c. 52, s. 1 (not in force).

Footnote: 34For example, the extent to which a business can save space by microfilming paper records and then destroying the originals is fairly clear (see, e.g., Ontario Evidence Act, s. 34), but the extent to which the same records could be imaged is completely unclear. The recent amendment to the New Brunswick Evidence Act is clearly designed to facilitate the admission of print-outs of optically imaged documents, requiring that the electronic storage be "in the course of an established practice in order to keep a permanent record of it", that the original be destroyed, and that the printout be "a true copy of the original document": Evidence Act, R.S.N.B. 1937, c. E-11, as am. by S.N.B. 1996, c. 52, s. 1 (not in


Footnote: 35This point is emphasized by Gregory, supra note 3, at 278-279.

Footnote: 36See note 2 supra.

Footnote: 37Tollefson, supra note 2, Appendix A, offers a comprehensive reform of the law of documentary evidence. Gregory, supra note 2, at pp. B1-B9, presents a more modest proposal that would deal only with computer-generated evidence. New Brunswick's recent amendments deal with electronic record-keeping only, and do not attempt a complete revision of documentary evidence law.

Footnote: 38Chasse, supra note 2, at 24-26; Tollefson, supra note 2, at 36-37; Gregory, supra note 2, at p. B4.

Footnote: 39Chasse, supra note 2, at 68 briefly discusses existing standards for imaging, which could be applied in determining admissibility and weight.

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