Proposals for a Uniform Electronic Evidence Act 1995

Technical Appendix

[187} Here are some of the main legal references that support the discussion in this consultation paper.

selected statutes

Canada Evidence Act, R.S.C. 1985, c. C-5, ss 29ff
Ontario Evidence Act, R.S.O. 1990, c.E.23, ss 34ff
P.E.I. Evidence Act, R.S.P.E.I. 1988, c. E-ll, s 32ff
New Brunswick Evidence Act, R.S.N.B. 1973, c. E-11, s 49ff
Evidence Act (terrritories), e.g. R.S.N.W.T. 1988, c.E-8, ss 47 ff

United Nations Draft Model Law on Legal Aspects of Electronic Data Interchange

[U.N. document A/CN.9/406, November 1994]

Article 7: Original

(1)

Where a rule of law requires information to be presented in its original form, or provides for certain consequences if it is not, a data message satisfies that rule if:

(a)that information is displayed to the person to whom it is to be presented; and

(b)there exists a reliable assurance as to the integrity of the information between the time wehn it was first composed in its final form, as a data message or otherwise, and the time when it is displayed.

(2) Where any question is raised as to whether subparagraph (b) of paragraph (1) is satisfied:

(a) the criteria for assessing integrity shall be whether the information has remained complete and unaltered, apart from the addition of any endorsement, and any

change which arises in the normal course of communication, storage and display; and
(b)the standard of reliability required shall be assessed in the light of the purpose for which the infomration was composed and in the light of all the relevant circumstances.

Article 8: Admissibility and evidential value of data messages

(1) In any legal proceedings, nothing in the application of the rules of evidence shall apply so as to prevent the admission of a data message in evidence:

(a) on the grounds that it is a data message; or,

(b) if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.

(2) Information presented in the form of a data message shall be given due evidential weight. In assessing the evidential weight of a data message, regard shall be had to the reliability of the manner in which the data message was generated, stored or communicated, to the reliability of the manner in which the integrity of the information was maintained, to the manner in which its originator was identified, and to any other relevant factor.

(3) Subject to any other rule of law, where subparagraph (b) of paragraph (1) of article [7] is satisfied in relation to information in the form of a data message, the information shall not be accorded any less weight in any legal proceedings on the grounds that it is not presented in its original form.

Cases

In R. v. McMullen (1979), 47 C.C.C.(2d) 499 at 506 (Ont. CA.), and in R. v. Bell and Bruce (1982), 35 O.R.(2d) 164, 65 C.C.C.(2d) 377 (Ont. CA.), affirmed without reasons, [1985] 2 S.C.R. 287, 55 O.R.(2d) 287, computer printouts were held to be admissible under the federal banking record provision, s. 29 of the Canada Evidence Act. And in R. v. Vanlerberghe (1976), 6 C.R.(3d) 222 (B.C.CA.), and R. v. Bicknell (1988), 41 C.C.C.(3d) 545 (B.C.CA.), computer printouts were held to be admissible under the business record provision, s. 30 of the Canada Evidence Act. And as to the provincial provisions, see for example Tecoglas Inc. v. Domglas Inc. (1985), 51 O.R.(2d) 196 (Ont. H.C.), in regard to the business record provision, s. 35 of the Ontario Evidence Act.

Setak Computer Services Corp Ltd. v. Burroughs Business Machines Ltd et al (1977), 15 O.R.(2d) 750; 76 D.L.R.(3d) 641 (Ont.H.C.); Re Waltson Properties Ltd. (1976), 17 O.R.(2d) 328 (Ont.H.C.); Matheson v. Barnes & I.C.B.C. [1981] 1 W.W.R. 435 (B.C.S.C.); Adderley v. Breamer, [1968] 1 O.R. 621 (Ont.H.C.).
Northern Wood Preserves Ltd. v. Hall Corp. Shipping, [1972] 3 O.R. 751, affd. 2 O.R.(2d) 335 (Ont. CA.): re other features of the business records rules.

articles

For a discussion of the original requirements at common law, see: Ewart, "Documentary Evidence: The Admissibility at Common Law of Records Made Pursuant to a Business Duty" (1981), 59 Can. Bar Rev. 52. In his article, "Documentary Evidence: The Admissibility of Documents Under Section 30 of the Canada Evidence Act" (1979-80), 22 C.L.Q. 189 at 193, note 11, Ewart states: "At common law, a record containing hearsay could be used as evidence of the truth of its contents only if it was (i) an original entry, (ii) made contemporaneously with the event recorded, (iii) in the routine, (iv) of business, (v) by a person since deceased, (vi) who was under a duty to do the very thing and record it, and (vii) who had no motive to misrepresent." (The two articles appear as chapters of his 1984 work, Documentary Evidence in Canada.)

See also: "Strategic Legal Planning for EDI", (1989) 16 Canadian Business Law Journal 66; Michael S. Baum, "EDI Law", [1990] The EDI Forum 1; Brian D. Grayton, "Canadian Legal Issues Arising from Electronic Data Interchange", (1993), 27 B.C.L.R. 257; and Peter Jones, EDI Law in Canada, EDI Council of Canada, 1992. Ken Chasse has several article in different issues of the Canadian Computer Law Reports.

Two recent U.S. survey articles are Lynch and Brenson, "Computer Generated Evidence: The Impact of Computer Technology on the Traditional Rules of Evidence", (1989) 20 Loyola University Law Jl 919; and Zupanec, D. "Admissibility of Computerized Private Business Records", (1990), 7 A.L.R. 4th 8 at 17..

Quebec Civil Code (the only current Canadian statute)

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