Older Uniform Acts

1994 Electronic Evidence: Computer Produced Records in Court Proceedings

APPENDIX A - Current Canadian statutes

The Business Record Provisions in the Evidence Acts

[108] The federal business record provision, s. 30 of the Canada Evidence Act, R.S.C. 1985, c. C-5, uses the common "usual and ordinary course of business" test for admissibility as follows:

30. (1) Where oral evidence in respect of a matter would be admissible in a legal proceeding, a record made in the usual and ordinary course of business that contains information in respect of that matter is admissible in evidence under this section in the legal proceeding upon production of the record.

[109] That test appears to have been purposefully left undefined so as to be capable of a subjective interpretation to suit each business organization to which it is applied. As to the word "matter" it is still undecided whether it would include statements of opinion.[36]

[110] The other commonly used test in the Evidence Acts, "the circumstances of the making of the record", is made applicable to both admissibility and weight in s. 30 by subsection 30(6)[37], but the desired or undesired circumstances are also not defined:

(6) For the purpose of determining whether any provision of this section applies, or for the purpose of determining the probative value, if any, to be given to information contained in any record received in evidence under this section, the court may, upon production of any record, examine the record, receive any evidence in respect thereof given orally or by affidavit including evidence as to the circumstances in which the information contained in the record was written, recorded, stored or reproduced, and draw any reasonable inference from the form or content of the record.

[111] This provision is capable of the interpretation that any particular "circumstance" could justify exclusion of the records adduced. It is worded so that the "circumstances of the making of the record" can be considered in relation to whether any part of s. 30 applies including the admissibility provisions of subsection 30(1). It is however arguable that the particular circumstances to be considered should be listed. That is why the imaging standard suggests a list of points by which to prepare to prove the admissibility and weight of computer-produced records.[38] Such a listing of factors should be within the business record provision such as s. 30 itself.

[112] Subsection 30(6) is the dominant or overriding provision of s. 30. It is backed up by an unusual provision in s. 30(9) that allows examination or cross-examination by either party:

(9) Subject to section 4 [competency and compellability of accused and spouse as witnesses], any person who has or may reasonably be expected to have knowledge of the making or contents of any record produced or received in evidence under this section may, with leave of the court, be examined or cross-examined thereon by any party to the legal proceeding.

[113] These provisions do not expressly assign the onus of proof of such circumstances to the proponent of admissibility. Because of the complexity and variety of computerized record-keeping, the onus of proving such "circumstances of the making" of computer-produced records should fall upon the proponent of admissibility. That should mean that the usual simplistic testimony as to records made in the "usual and ordinary course of business", without a detailed description of how they are in fact made and kept, should not be enough to gain admissibility. But in practice, it is. Therefore, any added or amended provision for computer-produced records should expressly require proof of specific factors in relation to their making and keeping.

[114] The nature of a s. 30 type provision is to let the court determine what is an adequate record-keeping system and to choose its own tests for making that determination in relation to admissibility and weight. By laying down only the very general tests in subsections 30(1) and 30(6), s. 30 gives the court complete flexibility in determining admissibility and weight. The disadvantages of such a provision are the uncertainty the litigant faces as to how s. 30 will be applied, meaning uncertainty as to what evidence to marshall for court, inconsistent court decisions, and court decisions that bring back the old common law requirements it replaced.

[115] In contrast, the government and public document provisions are merely best evidence rule provisions, i.e. the purpose is to make admissible copies of government records. The method of making and keeping the records is left to the government department involved. It is not examined by the court beyond receiving some evidence that the records were made in "usual and ordinary course of business." This rule could be maintained for public documents only on the principle that public computers are inherently reliable, or presumed to be reliable enough that the onus of showing the contrary should lie on the person asserting it.

[116] For the business records provisions, it would be better to list the factors of record-keeping the court is to consider in its determinations of admissibility and weight. That would put litigants on notice as to the evidence to be marshalled, make the determination of admissibility and weight more efficient, and give authoritative guidance to the business community as to what the law of evidence considers to be the most important functions of making and keeping computer-produced records.[39] That is to say, in relation to computer-produced records the business record provision would require evidence on such specific factors as the sources of information in the database that produced the business records in question, the entry procedures for that information, the compatibility of that information with the business's usual and ordinary course of business, and business reliance upon the database in making business decisions.

[117] The British Columbia, Manitoba, Nova Scotia, Ontario and Saskatchewan Evidence Acts use a double "usual and ordinary course of business" test. For example, the Ontario Evidence Act, R.S.O. 1990 c.E.23, states:

35. (2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of such act, transaction, occurrence or event if made in the usual and ordinary course of any business and if it was in the usual and ordinary course of such business to make such writing or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter.

[118] Opinions could not be included in such business records.[40] (Section 30 of the Canada Evidence Act might allow opinions in admissible business records.) The courts seem to have interpreted the double phrase as giving the same result as though it were a single phrase.[41] The original intention of the double phrase was to require not only the making of the record but also the type of record made to be within the usual and ordinary course of the originator's business.[42]

[19] The Prince Edward Island Evidence Act, R.S.P.E.I. 1988, c.E-11, like the federal provision, uses a single phrase:

32. (2) Any writing or record made of any act, transaction, occurrence or event is admissible as evidence of that act, transaction, occurrence or event if made in the usual and ordinary course of any business.

[120] It does not require contemporaneity of recording, as do the British Columbia, Manitoba, Nova Scotia, Ontario and Saskatchewan provisions, "at the time of such act, transaction, occurrence or event or within a reasonable time thereafter." Nor is there such an express contemporaneity requirement in the federal provision. However one could be introduced as part of the required "usual and ordinary course of business."

[121] But should it? If that phrase is to be given meaning by the usual and ordinary course of business of the business organization from which the records come, then contemporaneous recording of transactions will be required only if that was in fact the usual practice. But if the test is objective, then a fixed contemporaneity requirement could be read into "the usual and ordinary course of business." However, the theory of the test suggests that the meaning should be subjective. That is, businesses will make accurate records in accordance with their usual practices in order to maximize profit, such that the interest of the business is compatible with purposes of the law in obtaining accurate evidence. Therefore contemporaneity is not necessarily part of the "usual and ordinary course of business" test of admissibility.

[122] In short, some business record provisions require contemporaneity of recording between transactions and the making of records and some do not, or leave to the court as a matter of interpretation whether to read such a requirement into the provision.

[123] All six of these Evidence Acts limit the "circumstances of the making of the record" to weight by expressly preventing them from affecting admissibility. For example, the Ontario Evidence Act states:

35. (4) 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.

[124] This same provision is in the Prince Edward Island statute, meaning that contemporaneity of recording can apply only to weight, whereas in other provinces it applies to admissibility.

[125] Subsection 30(6) of the Canada Evidence Act allows such "circumstances" to be applied to admissibility. Therefore "the circumstances of the making of the record" test can have a different meaning and apply to different issues from one jurisdiction to the next.

[126] The New Brunswick Evidence Act, R.S.N.B. 1973, c. E-11, uses a different test for admissibility:

49. A record or entry of an act, condition or event made in the regular course of a business is, in so far as relevant, admissible as evidence of the matters stated therein if the court is satisfied as to its identity and that it was made at or near the time of the act, condition or event.

[127] Thus the "circumstances of the making of the record" would play no part as to admissibility other than the requirement for contemporaneous making in the regular course of a business. And like the other provincial provisions, it contains no words that would allow opinions to be in admissible business records, unlike the word "matter" that is in s. 30(1) of the federal provision.

[128] The new Civil Code of Quebec makes specific reference to computer-produced records. As a result, its provisions are set out in Appendix B among the other statutes that deal expressly with this issue. It does however contain a brief general statement on business records as an exception to the hearsay rule. Article 2870 speaks of documents "drawn up in the ordinary course of business of an enterprise", whose reliability is "presumed to be sufficiently guaranteed."

[129] The Northwest Territories, R.S.N.W.T. 1988 c. E-8, s47; and Yukon, R.S.Y. 1986, c.57, s. 37, use the same business records provision, which imposes a more detailed and onerous test of admissibility than is found in the provincial legislation:

47. (1) In this section "business" includes every kind of business, occupation or calling, whether carried on for profit or not.

(2) A record in any business of an act, condition or event is, in so far as relevant, admissible in evidence if

(a) the custodian of the record or other qualified person testifies to its identity and the mode of its preparation, and to its having been made in the usual and ordinary course of business, at or near the time of the act, condition or event, and

(b) in the opinion of the Court, the sources of information, method and time of preparation were such as to justify its admission.

[130] Thus in addition to "the usual and ordinary course of business", certain "circumstances of the making of the record" are expressly linked to admissibility. And the onus of proving such circumstances is cast upon the proponent of admissibility because the court must be satisfied as to their adequacy. Such circumstances are contemporaneity, the sources of information, and the method and time of preparation. The required standard for the last three is left to the opinion of the court, i.e. the provision does not specify the sources of information, the method of preparation, or the time of preparation. That would allow flexibility so that different record-keeping systems and different groups of proffered records can be subjected to requirements that vary with their importance and complexity.

[131] We see that Canadian business record provisions present a collection of diverse wordings and issues.

banking record provisions

[132] There have been provisions for bank records in evidence statutes for several decades because bank records are used in so many proceedings in which banks are not one of the parties. Section 29 of the Canada Evidence Act is typical. Its admissibility provisions state:

29. (1) Subject to this section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions and accounts therein recorded.

(2) A copy of an entry in the book or record described in subsection (1) shall not be admitted in evidence under this section unless it is first proved that the book or record was, at the time of the making of the entry, one of the ordinary books or records of the financial institution, that the entry was made in the usual and ordinary course of business, that the book or record is in the custody or control of the financial institution and that the copy is a true copy thereof, and such proof may be given orally or by the manager or accountant of the financial institution and may be given orally or by affidavit sworn before any commissioner or other person authorized to take affidavits.

[133] This provision expressly makes a copy admissible. Where it is intended to allow a copy to be used instead of the original record it is necessary to so state because of the best evidence rule's general demand for an original. An acceptable original is one made at or near the time of the events it records. The best evidence rule states that proof of a record must be made by means of the unaltered original record unless the absence or alteration of that original is adequately explained.

microfilm provisions

[134] The Ontario provision is typical of the provincial provisions. Its admissibility subsections state:

34. (2) Where a bill of exchange , promissory note, cheque, receipt, instrument, document, plan or a record or book or entry therein kept or held by a person,

(a) is photographed in the course of an established practice of such person of photographing objects of the same or a similar class in order to keep a permanent record thereof; and

(b) is destroyed by or in the presence of such person or of one or more of the person's employees or delivered to another person in the ordinary course of business or lost,

a print from the photographic film is admissible in evidence in all cases and for all purposes for which the object photographed would have been admissible.

(3) Where a bill of exchange, promissory note, cheque, receipt, instrument, agreement or other executed or signed document was so destroyed before the expiration of six years from,

(a) the date when in the ordinary course of business either the object or the matter to which it related ceased to be treated as current by the person having custody or control of the object; or

(b) the date of receipt by the person having custody or control of the object of notice in writing of a claim in respect of the object of notice in writing of a claim in respect of the object or matter prior to the destruction of the object,

whichever is the later date, the court may refuse to admit in evidence under the section a print from a photographic film of the object.

[135]The federal provision is s. 31 of the Canada Evidence Act:

31. (2) A print, whether enlarged or not, from any photographic film of

(a) an entry in any book or record kept by any government or corporation and destroyed, lost or delivered to a customer after the film was taken,

(b) any bill of exchange, promissory note, cheque, receipt, instrument or document held by any government or corporation and destroyed, lost or delivered to a customer after the film was taken, or

(c) any record, document, plan, book or paper belonging to or deposited with any government or corporation,

is admissibile in evidence in all cases in which and for all purposes for which the object photographed would have been admitted on proof that

(d) while the book, record, bill of exchange, promissory note, cheque, receipt, instrument or document, plan, book or paper was in the custody or control of the government or corporation, the photographic film was taken thereof in order to keep a permanent record thereof, and

(e) the object photographed was subsequently destroyed by or in the presence of one or more of the employees of the government or corporation, or was lost or was delivered to a customer.

[136] The new Civil Code of Quebec states:

2840 Proof of a document a reproduction of which is in the possession of the State or of a legal person established in the public interest or for a private interest and which has been reproduced in order to keep permanent proof thereof may be made by the filing of a copy of the reproduction or an extract that is sufficient to identify it, together with a declaration attesting that the reproduction complies with the rules prescribed in this section.

A certified true copy or extract of the declaration may be received in evidence with the same force as the original.

2841 In order for a reproduction to make the same proof of the content of a document as the original, it is necessary that it accurately reproduce the original, be an indelible picture of it and allow the place and date of reproduction to be determined.

It is also necessary that the reproduction of the original have been carried out by a person specially authorized by the legal person or by the Keeper of the Archives nationales du Québec.


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