Older Uniform Acts

1994 Electronic Evidence: Computer Produced Records in Court Proceedings

RECOMMENDATION:
(Option 3): THE UNIFORM LAW CONFERENCE SHOULD ADOPT SPECIAL RULES ON ELECTRONIC EVIDENCE.

[96]These special rules can be written in terms consistent with the United Nations work, i.e. show people how to meet the criteria set out in the draft model law. They should so far as possible be the same for banking, other business and public documents. They should also contain provisions on microfilm and imaging of the kind described below. Finally, they should expressly allow private agreements on evidentiary rules to apply to the parties to the agreement.

Supplementary discussion

banking documents

[97] Traditionally, banking documents (in the statutes, the records of financial institutions) have been given easier admission than other business records. Two main reasons appear: first, banks are considered particularly meticulous is keeping their records, as they have to watch other people's money. Second, banking records are often used in litigation to which the bank is not a party. As a result, banks face the risk of having many of their staff or original records tied up in lawsuits that do not involve them. Therefore, both the common law (in some jurisdictions) and statutes (in most jurisdictions) made special rules to allow records and copies or records to be admissible.

[98] Do the same considerations apply to electronic records? Should the bank's computer systems operators have to testify in all sorts of lawsuits to which the bank is not a party, to demonstrate the reliability of the records? Or should the apparently broad ruling in Bell and Bruce be allowed to stand untouched, at least for financial institutions, if not for all business records, namely that the creator's own reliance was a sufficient guarantee of reliability of the record to allow its admission?

public documents

[99] Public documents have had favourable treatment in the courts for similar reasons as bank documents, plus a general presumption of regularity of public acts. Records are routinely prepared by public bodies for official purposes, and this has been widely recognized. In addition, copies of public documents are easily admitted; the "best evidence" rule that requires originals where possible does not apply to public documents at all.[31]

[100] It is arguable that public computers may be subject to the same weaknesses as private computers. While common law relics of the business records test like the duty to prepare the record may not be relevant, other tests of reliability might be applicable. On the other hand, perhaps admissibility should be more easily granted to such records, leaving their weight to be attacked once they are admitted.

microfilm rules

[101] The microfilm provisions in evidence statutes are traditionally referred to as photographic document provisions.[32] They should be amended to include electronic imaging[33] and other computer processes applied to both microfilm and electronic imaging.

[102] Second, all retention periods for original records should be removed, such as the six year retention period that is in most of the photographic document provisions in the provincial Evidence Acts.[34] They specify the time for which paper original records are to be kept before destruction. (These rules do not apply to public documents.[35])

[103] Third, these provisions should be made applicable to all business and government organizations. For example, the definitions of "government" and "corporation" in the uniform statute, as reflected at present in s. 31 of the Canada Evidence Act for example, which limit the operation of that section to federal and provincial governments and a select group of business organizations, should be replaced with a comprehensive definition of "business" as in s. 30, the business record provision, so that s. 31 is available to all business and government organizations.

[104] Fourth, a copy from the resulting microfilm or computer record should be stated to have the same legal status as the original paper record. Therefore, the original paper record should be destroyed so as give its imaged replacement an equal authority.

[105] As to electronic imaging, three states, Missouri, Louisiana and Virginia, have recently amended their microfilm laws to include, "electronic transfer to other material using electronic processes", and "electronic digitizing process capable of reproducing an unalterable image of the original source document", and "copies from optical disks."

[106] The following provision is suggested to replace the operative parts of the existing provisions:

Where a record of any business or government organization is photographed, microphotographed, or transferred to other material using photographic, optical or electronic processes,

(a) in the course of an established practice in order to keep a permanent record thereof; and

(b) the process accurately reproduces and perpetuates the original record in sufficient detail and clarity; and

(c) the original record is destroyed by or in the presence of such person or of one or more employees or delivered to another person in the ordinary course of business, or lost;

a copy of the resulting record is as admissible and has the same probative value as the original record.

In determining whether the process sufficiently reproduces and perpetuates the original record in sufficient detail and clarity regard may be had to national standards prepared by Canadian General Standards Board and approved by the Standards Council of Canada applicable to microfilm and electronic images.

civil and criminal evidence

[107] The rules proposed here are intended to apply equally to civil and criminal litigation. Two main distinctions appear between these types of action, and neither is relevant to the admissibility or weight of electronic evidence. First, in civil actions the parties may have consented in advance to the admissibility of certain kinds of evidence, including hearsay, or to the use of certain kinds of foundation evidence. Second, in criminal actions the records sought to be adduced are often records created by the opposing side, as when the Crown wants to use records of an accused business on a fraud charge. The accused is not personally compellable to account for the electronic records, though a systems operator for the accused would be.


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