Proposals for a Uniform Electronic Evidence Act 1995

CONSIDERATIONS IN APPROACHING THE PROBLEMS

[128] In considering how to resolve the problems involved in computer-produced evidence, the Federal Government must, of course, give due weight to the resolution passed by the joint session of the Uniform Law Section and the Criminal Law Section at the 1994 annual meeting of the Uniform Law Conference of Canada that was referred to at the beginning of this paper. That resolution recommended that "the Conference prepare a draft uniform statute on computer produced evidence based on a special rather than comprehensive reform, and with a view to leaving most of the factors of admissibility and weight of the evidence to the discretion of the court." [Emphasis added.]

[129] While too much detail in legislation can create inflexibility, wide, unfettered judicial discretion has the potential for creating uncertainty in the application of the law. This was noted in directions given by the Uniform Law Conference, at its annual meeting in 1979, to the Federal/Provincial Task Force on Uniform Rules of Evidence. In part, those directions read: "Although legislative statement can assist in making the law of evidence more understandable and more certain, provisions which create wide discretions in the trial judge, especially with respect to admissibility, can reduce, rather than increase, the very certainty and uniformity that are rationales for legislating."40[Emphasis added.] This observation has perhaps particular relevance in relation to amendments to the Canada Evidence Act, because it applies primarily in criminal proceedings. We have seen in the foregoing review that uncertainty as to how the law will be interpreted and applied to computer-produced evidence is a major part of the problem, making it difficult for counsel and businesses alike to know what to do to prepare themselves for litigation.

[130] The challenge therefore is to devise a reform proposal that provides a clear statement of the law, while at the same time preserving the ability of the judge to use his/her common sense in making rulings on the admissibility of evidence.

[131] The resolution of the joint session of the Uniform Law Section and the Criminal Law Section also recommended that the draft uniform legislation be "based on special rather than comprehensive reform". This resolution must, of course, be read in the light of the fact that the only subject before the joint session was computer-produced evidence, and the Uniform Law Conference already has a comprehensive Uniform Evidence Act, which was adopted by the Conference, with the support of all jurisdictions, in 1981 after three years of work by the Federal/Provincial Task Force on Uniform Rules of Evidence and numerous special plenary sessions. 41

[132] As Bill S-33, the federal version of the Uniform Evidence Act died on the Order Paper, and there has not yet been any reform of the documentary evidence provisions of the Canada Evidence Act, an "appropriate" solution to the specific problems associated with computer-produced evidence may involve amendments that affect other types of documentary evidence.

[133] SUMMARY OF SUGGESTED REFORMS

This paper has addressed the problems with computer-produced evidence under three headings: Compatibility with the Current Law, Authentication, and New Developments. The following is a summary of the main recommendations for addressing those problems. In addition, there are a few "Miscellaneous Recommendations" designed to eliminate ambiguities and inconsistencies or to make the law in this area more "user friendly". For details, see Appendix "A" (proposed draft amendments to the Canada Evidence Act) and Appendix "B" (the commentary on the proposed draft amendments).

Compatibility with the Current Law

[134]As mentioned above, computer technology is so different from what has gone before in the area of information processing and storage that it clashes with the distinctions the law draws between "record" and "copy" and between "original document" and "secondary evidence". We need to modify our terminology and concepts to accommodate the reality of the computer, and in particular we need to clarify how computer-produced evidence fits into the Best Evidence Rule. The

following are terms that require definition in the amendments in order to attain this objective: (the actual wording of the definitions will be found in the attached draft provisions).

"Record"

[135] Though used in several sections in the Canada Evidence Act, the word "record" is only defined for the purposes of s. 30, and even that definition is not clear insofar as computer-produced evidence is concerned: for example, is a printout the record or a copy for purposes of s. 30? A new definition, applicable to all the documentary evidence provisions, should be introduced, clarifying that the word includes a record capable of being read electronically by a computer or other device. This would include the new technology of electronic imaging.

"Computer"

[136] There is no definition of "computer" either in the Canada Evidence Act or the Interpretation Act. Since most of the proceedings to which the Canada Evidence Act applies are criminal, the same terminology as appears in the Criminal Code, and the definitions found in s. 342.1(2) of the Code, should be used. These terms and definitions ("computer program", "computer system" and "data") were approved in the consultation process on Bill S-33, and were adopted in the "Proposed Canada Evidence Act".

"Original"

[137] As was pointed out above, computer technology does not fit readily into the conceptual framework of the Best Evidence Rule. It is particularly difficult to say whether the intelligible output of a computer system (usually a printout or the image on the screen) should be treated as an "original" or as a "duplicate" (see below). On the one hand, there is obviously a point of origin in the computer system that existed before the intelligible output, and on which the output is based; but, on the other hand, that point of origin cannot be sensed by us unless it is turned into intelligible output. So, while from a theoretical point of view, the particular array of data stored in the computer system should be classed as the original record, from a practical point of view the intelligible output should also be treated as an original, as this is the only way that the data stored in the computer can be (or ever could have been) put into evidence. It is therefore recommended that both be classed as original records. This approach is consistent with that stated by the Ontario Court of Appeal (approved by the Supreme Court of Canada) in R. v. Bell and Bruce (above).

[138] While the above proposed amendments would, to a large extent, overcome the problems of compatibility that currently exist with regard to computer-produced evidence, they would create another anomaly, by attributing a higher degree of legal recognition to a record which is produced by a computer than to a record produced by a technology of equal or superior reliability. It is therefore recommended that as part of the current amending process, amendments be introduced that would recognize that certain types of reproductions, such as photocopies, microfilm and electronic imaging, are so reliable that they essentially "duplicate" the original, and these "duplicates" should be admissible in evidence to the same extent as the original itself, even though the original may still be available. This proposal was the subject of extensive consultation by the Federal/Provincial Task Force on Uniform Rules of Evidence, and it was included in the Uniform Evidence Act and Bill S-33. None of the critics of Bill S-33 opposed the introduction of this change.

Authentication

[139] Apart from cases involving the use of computer printouts in financial institutions, there is a conspicuous lack of clarity and predictability in relation to what sort ofauthentication the courts will require for computer-produced records. Despite the fact that the "business records" provision has been on the books for a quarter of a century, the courts have still not developed any reasoned, consistent approach as to what will be required of a proponent of a computer-produced business record. Moreover, with the exponential growth in the use of personal computers, it is important that the law anticipate litigation involving computer-produced records that do not qualify either as financial or business records. This is not an area that can best be dealt with by individual courts on a case-by-case basis, for not only does it involve complex technical questions but also significant policy considerations. It is therefore recommended that the Canada Evidence Act be amended in the following manner.

1. There should be a statement of what authentication is and who bears the evidential burden with respect to it. This would involve no change from the existing law, but as authentication is generally not well-understood, and there are no handy reference books on the subject, it would be convenient for practitioners and judges to have been the basic rules spelled out in a readily accessible place.

2. The proponent should be required to notify each other party of his intention to tender in evidence a computer-produced record so that the other party will be alerted to the fact and can make preparations accordingly. Notice is also a necessary preliminary to a waiver of proof of authenticity proposed in the next recommendation.

3. In recognition that in the vast majority of cases the authenticity of the record will not be in issue, the amendments should provide that proof of the authenticity of the record shall be deemed to be waived unless within five days after receiving the notice from the proponent the other party has filed with the court a notice requesting proof of the record's authenticity.

4. The amendments should indicate how the proponent of a computer-produced record can satisfy the evidential burden as to its authenticity. This might be done (a) by comparing the record with the data supplied to the computer system, or (b) by evidence that the system reliably processes data of the type in question, and there is no reasonable ground to believe that correspondence between the record and the data supplied has been adversely affected in any material particular by any conduct or circumstance. The amendments should also provide that this evidence may be given either as testimony or by affidavit, and the court may require evidence to be given by the custodian of the record or some other person qualified to testify on this issue.

5. Finally, there should be a provision parallel to the existing s. 30(6), dealing specifically with computer-produced records that are being admitted into evidence as business records under s. 30(1). Unlike s. 30(6), the new provision should make it mandatory rather than discretionary for the judge to conduct a hearing into the circumstances surrounding the making, storage and reproduction of the record where the judge finds that "there is reasonable ground to suspect" that it may not satisfy the admissibility requirements of s. 30(1), or that its probative value may be in doubt. The subsection should also include a suggested list of matters to be explored. These proposed changes are designed to meet two of the chief complaints against s. 30(6), namely, its uncertainty of application by the courts and its lack of specificity on the question of what the courts will want to know. The judge could, of course, examine any other relevant questions to round out the inquiry.

[140] It may seem that there is duplication between items 4 and 5 above, but in fact there is not. They serve different purposes. Item 4 addresses authenticity only, while item 5 addresses the issue of whether the record is not only what its proponent claims it is but whether it is admissible under s. 30(1) as an exception to the Hearsay Rule, and, if so, whether there is any reason to question its probative value. Furthermore, item 5 does not apply at all to computer-produced records that are not being tendered as records made in the usual and ordinary course of business. In some instances, however, the court might find it convenient to deal with the two steps at the same time.

New Developments -- Electronic Imaging

[141] Earlier in this consultation document, three options for dealing with this emerging technology were discussed. The simplest option would be to treat documents produced by either electronic imaging or microfilm as "duplicates" (which they are) and therefore admissible in evidence to the same extent as if they were originals. Under this option, there would no longer be any need for the microfilm section (s. 31), and it could be repealed. A second option, based on the similarity in the product of the two technologies, would be to treat electronic imaging as being of the same genre as microfilm, which would then be incorporated into s. 31. This option would be attractive primarily in the event that the proposed amendments regarding "duplicates" were not enacted. A third option, which is a variation of the second, could repeal the present s. 31 and replace it with a section which would create a super-category of duplicates, specifically designed to replace the original in court proceedings and for other official purposes. The benefits of the new section would be available in a wider range of circumstances than permitted under the present section. It was felt that as each of these three options had merits, and therefore draft provisions have been prepared for the consideration of those involved in the consultation process.

Miscellaneous Recommendations

[142] The attached proposed draft amendments to the Canada Evidence Act also contain a few amendments that do not fall into any of above three categories but are rather in the nature of house-keeping amendments, which are designed to tidy things up.

  • In relation to the Best Evidence Rule, three amendments: the first, to define "public record"; the second, to assure that when the original record is not available the proponent will present the best secondary evidence that can be obtained by the exercise of reasonable diligence; and the third, to prevent a proponent from adducing secondary evidence of the contents of a record where the unavailability of the original or duplicate is attributable to the bad faith of the proponent. All of these amendments were recommended by the Federal/Provincial Task Force and appeared in the Uniform Evidence Act, Bill S-33 and the "Proposed Canada Evidence Act".
  • In relation to Authentication, an amendment providing for the Governor in Council to make regulations respecting the form and contents of an affidavit by the custodian of the record regarding the nature, reliability, security etc of the computer system. This was recommended by the

Association of Records Managers and Administrators and was included in the "Proposed Canada Evidence Act".

  • In relation to the admissibility of business records, an amendment to clarify that a record made in the usual and ordinary course of business is admissible even if it contains multiple hearsay or opinion. This was recommended by the Federal/Provincial Task Force on Uniform Rules of Evidence and appears in the Uniform Evidence Act, Bill S-33 and the "Proposed Canada Evidence Act".
  • Finally, in relation to the organization of the Canada Evidence Act, an amendment that would put the documentary evidence provisions into a separate and distinct Part of the Act for the convenience of drafting definitions applicable only in that Part.

[143]

Proposed Amendments to the Canada Evidence Act (computer-produced evidence)

1. The Canada Evidence Act is amended by adding thereto, immediately after section 18, the following new headings:

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