Proposals for a Uniform Electronic Evidence Act 1995

PART I.2 - MISCELLANEOUS

[at which point the current provisions resume]

APPENDIX "B"

COMMENTARY ON THE PROPOSED AMENDMENTS TO

THE CANADA EVIDENCE ACT (COMPUTER-PRODUCED EVIDENCE)

1. New Part on Documentary Evidence

[144] It is not essential that a new Part be created, but it serves to simplify the drafting of definitions that are limited in application to the documentary evidence area. This, however, is a matter that should be discussed with the experts in the Legislative Drafting Section.

2. Definition of terms, s. 18.1

[145] "computer program", "computer system", "data" -- It is necessary to have a standard set of definitions as the terminology in this area is by no means fixed. Linking the definitions to those used in the Criminal Code is of particular importance because most of the proceedings covered by the Canada Evidence Act are criminal prosecutions. A question that remains to be addressed is whether the definitions should be spelled out in these amendments so that reader would not be required to make reference to the Criminal Code.

[146] "duplicate" -- This definition for the most part is taken from s. 119 of the "Proposed Canada Evidence Act", which in turn was based on s. 81 of the Law Reform Commission's Draft Code and Rule 1001(4) of the U.S. "Federal Rules of Evidence". It has been modified to include reproduction of an original by "electronic imaging".

[147] "electronic imaging" -- There does not appear to be a suitable definition of this term in Canada. The definition used by the Canadian General Standards Board in "Microfilm and Electronic Images as Documentary Evidence" (CAN/CGSB-72.11.93) is designed for determining whether an imaging process satisfies their procedures, rather than giving a general description that would be useful in court. The definition offered here is in language that even lawyers understand.

[148] "original" -- This definition contains three paragraphs, each setting out important rules that clarify the existing law.

[149] Paragraph (a) provides the basic principle that in relation to a record, "original" means "the record itself or any duplicate intended to have the same effect by a person executing or issuing the record". The definition is based on the definition in Rule 1001 of the U.S. "Federal Rules of Evidence", which provides: "An 'original' of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it." The term "counterpart" is used almost exclusively in relation to leases. Osborne's Concise Law Dictionary (eighth edition) describes it in the following terms: "A lease is generally prepared in identical forms, called the lease and the counterpart respectively. The lease is executed by the lessor alone and the counterpart by the lessee alone, and then the lease and the counterpart are exchanged." As the Dictionary of Canadian Law defines "counterpart" as being "a part which corresponds, a duplicate", it is assumed that the Canadian practice in relation to the execution of leases is different, and the word "counterpart" may be safely omitted. The word "duplicate" is substituted to ensure that only very reliable copies may be regarded as originals. The term "person" is broad enough to permit non-natural persons (e.g., governments or corporations) to treat a copy as an original. This is consistent with the decision of the Ontario Court of Appeal in R. v. Bell and Bruce, 42 where the court concluded that if the bank regarded a printout as its original record, then it was an original record, even though the bank might regard other forms of record as the original at other times or even at the same time.

[150] Paragraph (b) states that in relation to a photograph, original means "the photograph itself, its negative or any print made from the negative". At common law the negative was usually regarded as the original for purposes of the Best Evidence Rule and this could lead to the necessity of calling witnesses to testify to the authenticity of the print as secondary evidence. Treating the print as an original reduces the technicality of the process and was included in the Law Reform Commission's Draft Evidence Code, the Uniform Evidence Act, Bill S-33 and the "Proposed Canada Evidence Act." It should perhaps be pointed out that where a photograph is taken of a document this provision does not mean that the photograph is an original record of the contents of that document: the photograph is only secondary evidence of the contents of the original document. What the provision means is that in putting forward a photograph as secondary evidence, either the negative or a print may be tendered as the original of the photograph.

[151] Paragraph (c) defines "original" in the following terms for records produced by a computer:

(c) in relation to a record produced by a computer system other than as a result of electronic imaging,

(i) an array of data stored in a computer system that on command is capable of being identified and retrieved as intelligible output by a computer program, or

(ii) a printout or other intelligible output of data supplied to a computer system.

This definition does a number of things. First, it specifies that a computer-produced record that is the result of electronic imaging is not an original. This is because the electronic image is based on a hard-copy original which at the time that it was electronically scanned could have been (and in some cases perhaps still can be) produced in court. Such a printout is therefore a copy, but because of its great accuracy it falls within the definition of a "duplicate". Second, clause (i) recognizes as an original a record as it exists in the computer's memory. It is difficult to describe this phenomenon. It is not possible simply to define the computer's memory (hard disk, floppy) as an original, for it is a repository of records rather than a record itself. Clause (i) is an attempt to describe an "organized" rather than a random collection of data stored in a computer that is capable of being identified and recovered in the form of intelligible output. As the only way that the original in this sense can be dealt with is through some form of intelligible output it is of more theoretical than practical importance; 43 although there will no doubt be occasions when a litigant who is challenging the authenticity of the printout will apply to the court to have the computer's memory produced for inspection (see proposed new subsection 30(7.1)). Third, clause (ii) defines a printout or other intelligible output as an original record. The term "other intelligible output" would include such things as the image on the computer screen, computer-operated microfilm systems, computer-operated scoreboards and advertising billboards etc. While it can be argued that printouts and other intelligible outputs should be treated as "duplicates" inasmuch as they are the product of an original text stored in the memory of a computer system, given that the record stored in the computer memory can only be ascertained through examining a printout or other intelligible output, practical considerations dictate that they be classed as original records. A final comment is that, unlike the definition of "original" found in the "Proposed Canada Evidence Act", the definition in clause (ii) is not qualified by the words "that accurately reproduces, whether in the same or a modified form" the data supplied to the computer system. 44 It is suggested that these are requirements of authentication, and therefore they are there dealt with in s. 18.13.

[152] "photograph" -- The Canada Evidence Act does not have a definition of this term. This definition is based on the one appearing in the "Proposed Canada Evidence Act". It is not an exclusive definition as it uses the verb "includes" rather than "means". However, it would not include videotape, which uses an electronic rather than a chemical process for recording the image. Videotape recording is recognized as a medium in its own right by the definition of "record".

[153] "public record" -- This is defined for the purposes of the proposed new s. 18.12. It is perhaps not necessary to define it as there are no doubt definitions to be found in the case law. But only a handful of practicing lawyers in Canada are likely to know where the term is defined, therefore including a definition in the Canada Evidence Act is justifiable on the grounds that it will save lawyers' time and therefore reduce their cost of preparation.

[154] "record" -- This is a key term which appears in several of the existing documentary evidence provisions, yet it is only defined for the purposes of s. 30, and even there it is badly defined. This definition, borrowed largely from the "Proposed Canada Evidence Act", is precise enough to avoid the foolish ambiguities of the existing definition of s. 30, but at the same time is broad enough to include records made or stored in equipment such as a computer or other similar devices that technology may develop. It will also provide a definition that will apply to all the sections in the "Documentary Evidence" Part of the Canada Evidence Act where the term "record" is used, unless the context requires otherwise: for example, in s. 23 the term appears to be used in a restrictive sense, and in s. 30(12) it is defined so as to include a "copy" in some subsections and exclude it in others.

[155] "record produced by computer system" -- This definition is intended to make it clear that the word "produced" in this context covers not only the making of the record but also the storage and reproduction of the record by the computer system. It is suggested that "making" also encompasses subsequent alterations of the record.

3. The Best Evidence Provisions, ss. 18.11 and 18.12

[156] As indicated earlier in this consultation paper, the Best Evidence Rule requires that a party wishing to prove the contents of a document to produce the original document unless the case falls within one of the exceptions. The Rule is based on two assumptions, first that if the court is to perform its fact-finding role properly it should have placed before it the best evidence available, and second that secondary evidence of the contents of a document is likely to be less reliable and less accurate than the primary evidence of the original document. While both of these assumptions are still basically sound, they fail to take into account developments in modern technology which permit the production of copies that are extremely accurate -- so much so, indeed, that they are often used interchangeably with the original in day-to-day affairs. Moreover, the old paradigm, based on the distinction between original documents and copies, does not readily fit the reality of electronically stored records.

[157] The proposed provisions re-affirm the validity of the assumption that the courts will perform their fact-finding role in relation to documentary evidence better if they are provided with the best evidence available (s. 18.11). At the same time, however, they would make a "duplicate" (as defined in s. 18.1) admissible in evidence to the same extent as the original, unless the court is satisfied that there is reason to doubt the authenticity of the original or the accuracy of the duplicate (s. 18.12(1)). These proposals recognize that in all but exceptional circumstances it is useless formalism to insist on the production of the original where a "duplicate" is tendered. In relation to computer-produced evidence, the proposals generally define printouts or other intelligible output as "original" records, but computer-produced records that are a result of electronic imaging are defined as "duplicates" (see discussion of s. 18.1 above).

[158] The proposed new provisions also address an apparent inconsistency in the current law. Whereas the Best Evidence Rule requires (apart from the exceptional cases) that the original document be produced, it does not apply so as to create a hierarchy with respect to secondary evidence; therefore, the proponent may choose to produce oral evidence of the contents of a lost original document, even though a carbon copy is available. The justification that is often given for this anomaly is that no rule is needed because the parties will put forward the best evidence available for fear that adverse conclusions may be drawn from their failure to do so, and that to impose a hierarchy of secondary evidence would give rise to "unnecessary complexity and inconvenience". 45 This premise is questionable, as it seems to assume that self-interest will always favour production of the best evidence available. Skeptics would suggest that the appropriate assumption is that parties are more likely to tender whichever form of evidence favours their case: if this were not so, why would the Best Evidence Rule be required at all? Section 18.12(2) makes an ordinary copy admissible where neither the original nor a duplicate is available, and s. 18.12(3) states that where an admissible copy cannot be produced by the exercise of reasonable care, other evidence (usually oral) of the contents of a record is admissible. This approach is also taken in the Uniform Evidence Act (ss. 133-134), the "Proposed Canada Evidence Act" (ss. 122-123) and the California "Evidence Code".

[159] The proposed amendments also contain another inducement to produce the best evidence available, for s. 18.12(4) prohibits the reception of an ordinary copy or other lesser evidence of the contents of a record "where the unavailability of the original or a duplicate is attributable to the bad faith of the proponent." This provision is based on s. 128 of the "Proposed Canada Evidence Act", and also finds antecedents in s. 77 of the Law Reform Commission's Draft Evidence Code and Rule 1004(1) of the U.S. "Federal Rules of Evidence". On the other hand, it was recently rejected by the New Zealand Law Commission, which, after noting that in the United States Rule 1004(1) was rarely invoked, concluded that any such occurrences could be dealt with in New Zealand as a matter of weight. 46

4. Authentication, ss. 18.13, 18.14 and 18.15

[160] It was felt advisable to spell out the existing basic rules of authentication, as this would not only be a convenience to practitioners and judges, but it also would serve as a visible foundation for proposed new measures regarding records produced by a computer system.

[161] Section 18.13 sets out the general rule the proponent of a record has the burden of establishing its authenticity. This rule applies to all documents being tendered for proof of their contents, either for a hearsay or non-hearsay purpose. The opening words of the section preserve exceptions, both of a statutory and common law nature, where the authenticity of the document is either presumed or is to be established in a certain way. (It may well be asked whether for the convenience of the Bar and Bench the Canada Evidence Act should set out these "self-authenticating" and special cases, as was done in Bill S-33, but that is beyond the scope of this consultation document.) The section also states that the burden may be satisfied "by the introduction of evidence capable of supporting a finding that the record is what its proponent claims it to be." This formulation follows that set out in s. 130(1) of the "Proposed Canada Evidence Act", which had as its progenitors provisions in Bill S-33, the Uniform Evidence Act, the Law Reform Commission Draft Evidence Code and Rule 901(a) of the U.S. "Federal Rules of Evidence". It is also the common law position as stated by the Supreme Court of Canada in U.S.A. v. Shephard 47 with respect to the proper test of the sufficiency of evidence to satisfy burden of adducing evidence (which is now more commonly referred to as the "evidential burden"). This is not a heavy burden, for it does not involve any assessment of the credibility of the witnesses -- that is a matter which goes to the weight of the evidence rather than its admissibility.

[162] Section 18.14(1) is a disclosure provision. It plays the same role with respect to records produced by a computer system as s. 30(7) plays with respect to business records generally, i.e., requiring, as a condition of admissibility for all records produced by a computer system, that the proponent give notice to each of the other parties of his intention to tender the record in evidence. However, in addition it requires the proponent to give notice that the record was produced by acomputer-system. Without such notice the party against whom the record is being tendered would, in many instances, not know that it was computer-produced and therefore would not be as well prepared. The provision also applies to computer-produced records that are being tendered in evidence under s. 30(1) as business records; therefore, for the sake of convenience, and in order to allow notices under the two provisions to be given in the same document, the time for giving the notice under s. 18.13(2) is the same as that under s. 30(7), namely, seven days. There is, however, a question whether seven days is long enough to allow the other parties to carry out any meaningful investigations before the proponent produces the record in the proceedings. Comment on this question, along with any suggestions as to an appropriate time period, would be appreciated.

[163] Under the proposed amendments, in the case of a record produced by a computer system, the "original record" includes both "an array of data stored in the computer system" and "any printout or other intelligible output". To minimize interference with proponent's computer system, s. 18.14(2) provides that unless the court orders otherwise, production of a printout or other intelligible output will constitute compliance with a request under s. 18.14(1) for production of the record for purposes of inspection.

[164] In recognition of the general reliability of computer-produced records, section 18.14(3), provides the proponent with some assistance in establishing proof of authenticity. If the opposing party does not file a notice with the court requesting proof of the record's authenticity, then he will be deemed to have waived such proof. This provision is designed to avoid unnecessary steps: if the authenticity of the record is not in issue, then there is no reason why the proponent should be put to the expense of proving it. As mentioned earlier in this consultation document, proof of authenticity is a condition precedent to admissibility of a record, but it is not a guarantee of admissibility, and even if the record is admitted into evidence it does not prevent evidence being called with a view to undermining its probative value. Moreover, in the case of a computer-produced record that is admitted into evidence under s. 30 of the Canada Evidence Act as a business record, even if a party failed to file a notice requesting proof of authenticity under s. 18.13(3) it may still be possible for him to challenge the admissibility and/or probative value of the record under the proposed new s. 30(6.1) (see below).

[165] Section 18.15(1) sets out how the authenticity of a record produced by a computer system may be established. Paragraph (a) provides for authentication by comparison of the record produced by the computer system with the data supplied to that system and a finding that the two correspond in every material particular. This method of authentication is probably going to be of limited use, for in a large percentage of cases such a comparison will not be possible. (It would likely be the method used to prove the authenticity of a computer-produced copy of a record of a financial institution under s. 29(2), inasmuch as that section requires the authenticating affiant to swear that it is a "true copy" of the record, and in most instances this would be based on a visual comparison.) Paragraph (b) therefore provides an alternative, whereby the authenticity of the record may reasonably be inferred from evidence of the reliability of the system in processing such data, and evidence that there is no "reasonable ground to believe" that the correspondence between the record and the data supplied to the system has been adversely affected in any material particular by "any process or procedure or by any malfunction, interference, disturbance or interruption." Read in conjunction with the statement of the burden of establishing authenticity that is set out in s. 18.13, this provision requires that the proponent produce evidence, which if believed would be capable of supporting a finding that it is more likely than not that the computer-produced evidence is in every material particular the same as the data supplied to the system. 48 Looked at from the standpoint of the party opposing the admission of the computer-produced evidence, a reasonable doubt as to the authenticity of the record is not a sufficient basis for the court to refuse to admit the record into evidence on the basis of lack of authentication; although such a doubt might seriously affect the weight of the evidence.

[166] In order to assure that the court is being provided with the best information possible about the computer system (or systems) in question, the procedures followed, the quality of security measures surrounding storage of the record etc., s. 18.15(2) provides that the court "may require that evidence respecting the authenticity of a record produced by a computer system be given by the custodian of the record or other qualified witness". Section 130(3) of the "Proposed Canada Evidence Act" provides that the court "shall require" that such evidence be given by the custodian of the record or other qualified witness"; but desirable as it is to have the best evidence, it is possible that in certain circumstances such a rigid rule would work an injustice. For example, in some small businesses there may not be any identifiable custodian of the record, but there is a secretary who is very well acquainted with the file and can give evidence as to the hardware and software used and who had access to the file. The secretary may not fall within the definition of an "other qualified witness", but clearly is the person the court should hear from. Therefore, in order to provide greater flexibility s. 18.14(2) uses "may" rather than "shall".

[167] It is left to the courts to determine who is included by the term "other qualified witness", but it would clearly include an expert in computer technology or software or a person who had considerable experience in the operation of the computer system in question. In a prosecution for fraud, for example, where the computer records of the accused were seized, a police expert could testify to capacity of the computer system and software to process the data in question accurately and reliably, as well as to any evidence indicating whether the records, program or equipment used may have been tampered with by somebody other than the accused.

[168] In order to interfere as little as possible with normal business operations, and to keep the cost of litigation reasonable, the proposed amendments permit the custodian or other qualified witness to give their evidence by affidavit "unless the court requires that it be given by way of testimony in court" (s. 18.15(3)). Recognizing that in many cases it would be impossible for such a witness to have personal knowledge of every detail of the operation, s. 18.15(4) permits the making of an affidavit on the basis of "knowledge and belief". 49

[169] Experience may indicate that there are particular issues that ought to be addressed in the preparation of affidavits, and these issues may change relatively quickly in the light of legal or technological developments. It was therefore recommended by representatives of business managers and administrators, during the consultations respecting Bill S-33, that provision be made for the Governor in Council to make regulations respecting the form and contents of these affidavits. This recommendation is incorporated in s. 18.15(5).

5. The Business Records Exception to the Hearsay Rule, s. 30(1)

[170] The proposed new s. 30(1) is not intended to make any change in the existing law but rather to state more directly what the authorities have suggested the existing provision means. For example, the introductory words of the current s. 30(1) -- "Where oral evidence in respect of a matter would be admissible . . ." -- seem to limit the scope of the exception to cases where the record was made by someone with personal knowledge of what was stated in the record, but a number of authorities maintain that it also permits multiple hearsay. 50 Certainly a single-hearsay rule would limit the utility of the exception in a large business, where many reports have to be filed on the basis of what other workers have told the person making the report, and where computers are involved it is often impossible say who made the record. The Federal/Provincial Task Force on Uniform Rules of Evidence found that s. 30(1) did not require the supplier of the information to have personal knowledge, and it recommended unanimously that it not be an impediment to the admissibility of a business document that it contains multiple hearsay or opinion. 51 The section is also ambiguous as to whether an opinion is admissible under s. 30(1) if it forms part of a business record. The better view appears to be that it is admissible, because the section uses the word "matter", which is the word used by Hall J. in Ares v. Venner 52 in describing nurses' reports which may contain opinion. 53 But unless there is some indication that the business adopted the opinion, it would seem illogical to allow it into evidence as a hearsay exception under s. 30(1), for that exception is based on statements being trustworthy because of "business reliance". In the debate on the Report of the Federal/Provincial Task Force, the Uniform Law Conference decided that there should be a sufficient guarantee of trustworthiness to justify admission under s. 30(1) if the opinion was given in the usual and ordinary course of business. 54 This is the approach followed in the proposed amendment.

6. Special Provisions for the Examination of Business Records that were Produced by a Computer System s. 30(6.1)

[171] For purposes of determining whether a record is admissible under s. 30(1) and, if so, what probative value it has, s. 30(6) empowers a court to examine the circumstances in which the record was "written, recorded, stored or reproduced"; but it does not require a court to conduct any examination, and it gives no guidance to a judge in determining whether to conduct such an examination. This degree of latitude may be all right when the courts are dealing with the traditional forms of business records where everybody understands the issues and the terminology. However, the lack of predictability in relation to the courts' treatment of computer-produced evidence is a major problem for those who have to prepare for litigation in the area, and this in turn affects all businesses because they do not know what hard-copy records they have to keep to be on the safe side. The proposed new s. 30(6.1) is designed to improve this situation by providing a threshold at which a court must conduct a hearing for the purpose of examining the background of a computer-produced business record.

[172] The conditions that trigger s. 30(6.1) are, first, that the record in question was produced by a computer system, and, second, "that due to events or circumstances associated with any stage of its production there is reasonable ground to suspect that the record may not satisfy the requirements for admission in evidence under subsection (1), or, if admitted in evidence, the record's probative value may be adversely affected". This threshold requirement means that the opposing party cannot succeed under this subsection by painting a picture of what might of occurred; rather, there must be evidence sufficient to satisfy the judge that there is reasonable to suspect that something is amiss. (However, it would appear that even following the introduction of the proposed new subsection (6.1) the court would continue to have the power to act under s. 30(6) on whatever basis it saw fit.)

[173] If a court finds that these conditions exist, then it is required by s. 30(6.1) to conduct a hearing to address the issue (of whether the record is admissible in evidence, and if so what probative value it should be given), at which hearing additional evidence in respect thereof may be received, which evidence may be given by affidavit unless the court requires that it be given by way of testimony in court. This evidence may include evidence in relation to

(a) the nature and sources of the data and instructions supplied to the system at all relevant times;

(b) the procedures that were followed, and the procedures that should have been followed in the preparation and supply of data to the system, and in the storage, transmission and production of the record by the system; and

(c) any process, procedure, malfunction, interference, disturbance or interruption that adversely affected, or might reasonably be thought to have adversely affected the supply of data to the system, or the storage, transmission or production of the record by the system.

[174] It is important to note that s. 30(6.1) would not create any new ground for excluding business records. The test for determining the admissibility of business records of all types would continue to be that set out in s. 30(1). Under s. 30(6.1), the courts would be doing nothing more with respect to records that are produced by a computer system than they can do at the present time under s. 30(6). The purpose of s. 30(6.1) is only to make the courts more vigilant in administering the existing rules of admissibility.

[175] Some may argue that inasmuch as the test of admissibility under s. 30(1) is whether the record was "made in the usual and ordinary course of business", whatever happened afterwards in terms of storage, transmission and reproduction of the record is irrelevant. Therefore, a court would not be feel obliged to make conduct the hearing prescribed by s. 30(6.1). However, it is suggested that in the case of a record produced by a computer system, the process of making the record is not completed until the printout or other intelligible output is produced by the system. For purposes of day-to-day business use, and for production in court, it is the printout or other intelligible output that constitutes the original record. Therefore, circumstances throughout the process, from input to output, that may adversely affect the end product, are of legitimate concern to the court in determining whether the record was made in the usual and ordinary course of business.

7. Amendment to the Notice Provision, s. 30(7)

[176] This amendment makes s. 30(7) subject to the provisions of s. 18.14 so far as business records produced by a computer system are concerned.

8. Affidavit Evidence, s. 30(8)

[177] The existing s. 30(8) is modified by adding a provision that where evidence is offered by affidavit under this section, "it is sufficient for a matter to be stated to the best of the knowledge and belief of the affiant". This makes the requirement the same as with respect to affidavits of authentication under s. 18.14(4) above, and the same reasons apply.

9. Special definition of "record" for purposes of s. 30, new s. 30(12).

[178] The old definition of "record" in s. 30(12) is replaced by a new definition set out in s. 18.1 which applies throughout the Part. The new definition is broad enough to include not only original records but copies, but the old definition provided that copies were not records for the purposes of subsections (3) and (4). To avoid having to do extensive re-drafting of s. 30, an exception to the general definition of "record" now will appear in s. 30(12).

10. Options for dealing with Microfilm and Electronic Imaging, s. 31

[179] At the present time, special provision is made in s. 31 for the admissibility of microfilm copies in certain very limited circumstances. However, there is nothing specific concerning the new technology of electronic imaging, which scans an original document and is capable of storing and reproducing that image electronically with great accuracy through a computer system. Some suggest that electronic imaging has a number of advantages over microfilm (requires less storage space, access through computers etc.) and therefore is likely to replace it as the preferred method of accurate, full-text, long-term storage. As these two methods of reproducing documents share many similarities any proposal for dealing with imaging should be compatible with the law in relation to microfilming for evidentiary purposes. Three options are proposed for consideration.

Option #1 -- Repeal s. 31.

[180] Most microfilming and electronic imaging is now done by government or businesses as part of their usual and ordinary course of business, and this is likely to continue to be the case. This means that there is a large overlap between the operation of s. 30(1) and s. 31. Assuming that the foregoing legislative proposals are accepted, there will be further overlapping, as images prepared either by microfilming or electronic imaging would fall within the definition of a "duplicate" (see above, s. 18.1), and, as such, by virtue of s. 18.12(1), would be admissible to the same extent as an original record. The rationale for this option therefore is that with the introduction of the proposed new provisions there would no longer be any need for a special provision for microfilm evidence.

[181] This is the simplest and cleanest option, and it is consistent with the existing Uniform Evidence Act and the "Proposed Canada Evidence Act".

Option #2 -- Amend s. 31 only to the extent necessary to treat electronic imaging as the equivalent of microfilming.

[182] By simply coupling appropriate references to "electronic imaging" with the existing references to photography in subsections (2) and (3) of s. 31, electronic imaging would become the alter ego of microfilming. (The definitions of "electronic imaging" and "duplicate" are found in s. 18.1. If for any reason the proposed amendments in relation to "duplicates" were not enacted, the definition of "electronic imaging" could be incorporated into s. 31 and the reference to a "duplicate" in subsections (2) and (3) of the proposed new s. 31 could simply be dropped, for the word "print" could apply equally to the product of electronic imaging as to a photograph.)

[183] The rationale for linking electronic imaging directly with the well established process of microfilming is that it would have the effect of giving the new technology greater popular recognition and would probably hasten its adoption by government and major businesses as the preferred form of accurate, full-text, long-term storage. However, this rationale probably only holds true if the proposed amendments, making "duplicates" admissible to the same extent as originals, were for some reason not acted upon. Otherwise, it would be much easier to prove an electronic image of a document as being a "duplicate" under s. 18.12 than (as required by s. 31) to find a witness, or witnesses, with personal knowledge (1) that an electronic image was made of the original document for the purpose of making a permanent record thereof and (2) that the document was subsequently destroyed in the presence of one or more of the employees of the government or corporation, or was lost or delivered to a customer. If these restrictions were eliminated, s. 31 would be a more attractive option than it is now, but it is the restrictions that provide the theoretical basis for this exception to the Best Evidence Rule.

Option #3 -- Repeal and replace the existing s. 31 with a broader provision that would create a category of duplicates specifically designed to replace the original in court proceedings and for other official purposes.

[184] When the existing s. 31 was introduced, it was intended to create a special category of exception to the Hearsay Rule, based on microfilm's capacity to reproduce the original record with a high degree of accuracy and on the necessity created by the destruction of the original. To add to the mystique, it was restricted to important records of government and large corporations. Option #3 is really a modern-day version of this special class of reproduction. It would be more than a "duplicate", for it would not only be admissible in evidence to the same extent as the original, but it would in fact replace the original for court proceedings and other official purposes. Because the process would involve the taking of an image of the original in accordance with nationally recognized standard procedures (although not necessarily one particular standard), it would have a cachet that other forms of "duplicate" would lack.

[185] Even though it is proposed that the restrictions under the existing s. 31 be eliminated, and that the new provision be made available to all businesses (as defined in s. 30) for the full range of business and financial documents, it is not expected that this type of copying would be used as a matter of course. As the cost of making the reproduction in accordance with nationally recognized standard procedures would be considerably more than the cost of making other forms of "duplicates", it likely would be restricted to records that may be the subject of litigation or are otherwise of considerable significance. It is anticipated that, after microfilming or imaging, in the great majority of cases the original hard copy would continue to be destroyed, but destruction of the original would not be a condition of admissibility of the copy as it is under the existing s. 31. There are a number of situations where for historic or archival purposes preservation of the original is desirable. With this special role, this section could comfortably co-exist with the proposed new s. 18.12

11. New Part I.2 (Miscellaneous)

[186] The reasons for this are purely technical. The alternative would be to include ss. 37 - 42 in Part I.1 (Documentary Evidence) or Part II (taking evidence relating to proceedings in courts out of Canada). The sections do not fit happily with either part, so a new part would seem to be the appropriate solution.

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