Older Uniform Acts

1994 Electronic Evidence: Computer Produced Records in Court Proceedings

APPENDIX C - Law Reform in Canada

[151] Because a very large volume of intensive law reform research and consultation was done in the 1970's and '80's in Canada, based upon the same legislative provisions that are still found in our Evidence Acts, its recommendations should be seriously considered so as to avoid the cost of another consultation process based upon new recommendations.[43] The results of much of that process were reviewed by the Uniform Law Conference of Canada in 1981.

[152] In December 1975 the Law Reform Commission of Canada published its Report on Evidence[44] Its Evidence Code contained the following provisions:

31. The following are not excluded by section 27 [the hearsay rule]

(a) a record of a fact or opinion, if the record was made in the course of a regularly conducted activity at or near the time the fact occurred or existed or the opinion was formed, or at a subsequent time if compiled from a record so made at or near such time;

81. (b) "original" ... when used in relation to data stored in a form readily accessible to a computer or similar device, includes any printout or other output readable by sight, shown to reflect the data accurately;

(d) "writings" and "recordings" mean letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation.

[153]The Evidence Code was very similar to the U.S. Federal Rules of Evidence which came into effect on July 1, 1975. The Evidence Code received a mixed reaction from lawyers and judges during consultation. However, the provisions noted here evoked little response. They were generally found to be acceptable. It was suggested that a notice provision be added.[45]

[154] In June 1976, the Ontario Law Reform Commission published its Report on the Law of Evidence.46 It concluded that s. 30 of the Canada Evidence Act was unsuitable, stating:[47]

From the terminology used in section 30 of the Canada Evidence Act, it appears that this provision is not entirely responsive to the procedures used in recording information in computers. The record produced in court would be a "print-out" of the information and calculations stored in the computer, not "a transcript of the explanation of the record or copy". What is retrieved is not necessarily a copy of what is stored, but the data after it has been processed by the computer. Undoubtedly, an explanation of the whole process is required to determine the reliability of the method of storing information, but the ultimate production in a form usable by the courts is the product of a whole series of processing steps performed upon the original record made for the purpose of storing in the computer. The print-out is in effect a mechanical translation of the data fed into the computer and stored.

[155] The Ontario commission therefore recommended the addition of the following subsection to the Ontario business records provision:[48]

Where a record containing information in respect of a matter is made by use of a computer or similar device, the output thereof in a form which may be understood is admissible in evidence if the record would be admissible under this section if made by other means.

It cited in support the following provision recommended by the Law Reform Commission of New South Wales[49] which was enacted in 1976:

A statement in a record of information made by the use of a computer may be proved by the production of a document produced by the use of a computer containing the statement in a form which can be understood by sight.

[156] Therefore both Commissions in effect recommended against a specialized computer provision, i.e. one that directs attention to factors that are peculiar to computerized record-keeping such as input procedures and software. Theirs is the contrary approach, i.e. the reference to the computer is no more detailed than to state that computer-produced records are a variety of admissible business records if accurate and can be understood.

[157] The Uniform Law Conference of Canada rejected a specialized provision produced by the Federal/Provincial Task Force on Uniform Rules of Evidence. The Task Force was formed in 1977 by the Conference because the Ontario and Canada law reform commissions had taken opposing views to reform of the law of evidence in their respective reports.[50 ] Its Report[51], completed in 1980, explained its choice of an "intermediate course", i.e. a modestly specialized provision:[52]

Certainly the computer is still something of a mystery to the average layman, and not only is there a danger that the finders of fact will be lulled into a false sense of security by virtue of the computer's reputed infallibility, but also computer evidence poses a very real difficulty for persons attempting to attack its reliability because of the lack of a paper trail. The opposing argument is that if a business sees fit to keep its records in a computer as distinct from a traditional account book, why should a higher standard of admissibility be imposed on computer evidence than account book evidence? While there is a possibility of error through faulty programming, machine malfunction, tampering with the data bank, etc., comparable problems exist with the traditional record-keeping systems; moreover, the problem must be viewed in the light of the undoubted increase in accuracy permitted by the computer.

After considering the various alternatives, the majority of the Task Force recommends that the Uniform Evidence Act follow an intermediate course, namely, that in addition to the other requirements for business documents there be only three conditions of admissibility of computer evidence:

1. proof that the data upon which the print-out is based is of a type regularly supplied to the computer during the regular activities of the organization from which the print-out comes;

2. proof that the entries into the data base from which the print-out originates were made in the regular course of business; and

3. proof that the computer programme used in producing the print-out reliably and accurately processes the data in the data base.

The reason for the first condition is that the court should be satisfied that the computer system not only is capable of processing the kind of information upon which the print-out is based, but also that it does so regularly and routinely. Like the usual and ordinary course of business requirement, this guarantees that the data processing is done in a proven rather than experimental fashion. The second condition is there to assure that in the case of this particular entry into the data base regular procedures were in fact followed. The third condition is simply to provide the court with some expert evidence of the reliability of the programme itself: normally this would be done on the basis of evidence of a business experience with the computer programme over a period of time, but if this experience were lacking (for example, if this was the first time that the business had used this particular computer system or programme), it would be necessary to call an expert who could testify to the accuracy and reliability of the programme from a technical point of view.

[158] This recommendation was rejected. Therefore the Uniform Evidence Act at the end of the Task Force's Report contains provisions that perpetuate the key phrases of s. 30 of the Canada Evidence Act.53 The minutes of the proceedings of the special plenary sessions of the Uniform Law Conference of Canada that reviewed the Task Force's recommendations give the following reasons for rejecting them:[54]

Rejected. Members of the majority expressed the following reasons for their decision: (1) if a computer printout is used by a business in its usual and ordinary course of business, that provides sufficient guarantee of reliability; (2) the provision in the recommendation would require the calling of many additional witnesses; and (3) in some cases it would be impossible to satisfy the conditions even though the evidence was reliable.

[159] The arguments to the contrary are: There is no standard "usual and ordinary course of business" for computerized record-keeping as there might be for traditional record-keeping. This provision needs definition which is the reason for the factors listed in a specialized provision. As to witnesses, a single knowledgeable supervisor could alone provide sufficient foundation evidence for admissibility. And thirdly, there is no basis for saying that reliable evidence could not satisfy the listed conditions. In fact, if the conditions cannot be satisfied, the evidence would not be reliable.

[160] The next law reform step was Bill S-33, "An Act to give effect, for Canada, to the Uniform Evidence Act adopted by the Uniform Law Conference of Canada." It received First Reading in the Senate on November 18, 1982, and died at Second Reading. Hearings on its provisions were held from January to June 1983 by the Standing Senate Committee on Legal and Constitutional Affairs. Further consultation was recommended, which was carried out by the Department of Justice. The result was a further draft Act circulated for consultation but not tabled. It was entitled the Canada Evidence Act, 1986. Its provisions and those of Bill S-33 are almost the same. They are very similar to the provisions of the Uniform Evidence Act approved by the Uniform Law Conference of Canada in 1981.[55 ] If the Conference decides in 1994 to adopt new business record and microfilm provisions for computer-produced records, the Conference should also consider how they would fit into the 1981 or 1986 provisions as well.

[161] The main provisions from both the Canada Evidence Act, 1986, and Bill S-33 of interest here are these:

119. In this section and sections 120 to 149,

"computer program" has the same meaning as in section 301.2 [now s.342.1(2)] of the Criminal Code;

"computer system" has the same meaning as in section 301.2 [now s.342.1(2)] of the Criminal Code;

"data" has the same meaning as in section 301.2 [now s.342.1(2)] of the Criminal Code; [Draft Canada Evidence Act, 1986, s.119]

"duplicate" means a reproduction of the original from the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction or by other equivalent technique that accurately reproduces the original; [draft Canada Evidence Act, 1986, s.119; Bill S-33, s.130]

"original" means

(a) in relation to a record, the record itself or any facsimile intended by the author of the record to have the same effect,

(b) in relation to a photograph, the negative or any print made from it, and [draft Canada Evidence Act, 1986, s.119; Bill S-33, s.130]

(c) in relation to a record produced by a computer system, any printout or other intelligible output that accurately reproduces, whether in the same or a modified form, the data supplied to the computer system; [draft Canada Evidence Act, 1986, s.19]

OR

130. "original" means ...

(c) in relation to stored or processed data or information, any printout or intelligible output that reflects accurately the data or information or is the product of a system that does so. [Bill S-33, s.130]

Best Evidence Rule

120. Subject to this Act, the original is required in order to prove the contents of a record. [draft Canada Evidence Act, 1986, s.120; Bill S-33, s.131]

121. The proponent of a record produced by a computer system may establish that it is an original by

(a) evidence that on comparison the record produced by the computer system corresponds in every material particular to the data supplied to that system; or

(b) evidence that the computer program used by the computer system to produce the record reliably processes data of the type in question and that there is no reasonable ground to believe that the record does not correspond in every material particular to the data supplied to the computer system. [draft Canada Evidence Act, 1986, s.121]

122. A duplicate is admissible to the same extent as an original unless the court is satisfied that there is reason to doubt the authenticity of the original or the accuracy of the duplicate. [draft Canada Evidence Act, 1986, s.122; Bill S-33, s.132]

123. Where an admissible duplicate cannot be produced by the exercise of reasonable diligence, a copy is admissible in order to prove the contents of a record in the following cases:

(a) the original has been lost or destroyed;

(b) it is impossible, illegal or impracticable to produce the original;

(c) the original is in the possession or control of an adverse party who has neglected or refused to produce it or is in the possession or control of a third person who cannot be compelled to produce it;

(d) the original is a public record within the meaning of section 136 or is recorded or filed as required by law;

(e) the original is not closely related to a controlling issue; or

(f) the copy qualifies as a business record within the meaning of section 142. [draft Canada Evidence Act, 1986, s.123; Bill S-33, s.133]

124. Where an admissible copy cannot be produced by the exercise of reasonable diligence, other evidence may be given of the contents of a record. [draft Canada Evidence Act, 1986, s.124; Bill S-33, s.134]

125. (1) The contents of a voluminous record that cannot conveniently be examined in court may be presented in the form of a chart, summary or other form that, to the satisfaction of the court, is a fair and accurate presentation of the contents.

(2) The court may order the original or a duplicate of any record referred to in subsection (1) to be produced in court or made available for examination and copying by other parties at a reasonable time and place. [draft Canada Evidence Act, 1986, s.125; Bill S-33, s.135]

126. Where a record is in a form that requires explanation, a written explanation by a qualified person accompanied by an affidavit setting forth his qualifications and attesting to the accuracy of the explanation is admissible in the same manner as the original. [draft Canada Evidence Act, 1986, s.126; Bill S-33, s.136]

127. The contents of a record may be proved by the testimony, deposition or written admission of the party against whom they are offered, without accounting for the non-production of the original or a duplicate or copy. [draft Canada Evidence Act, 1986, s. 127; Bill S-33, s. 137]

128. The court shall not receive evidence of the contents of a record other than by way of the original or a duplicate where the unavailability of the original or a duplicate is attributable to the bad faith of the proponent. [draft Canada Evidence Act, 1986, s.128; Bill S-33, s.138]

129. (1) No record other than a public record to which section 137 applies and no exemplifications or extract of such a record shall be received in a party's evidence in chief unless the party, at least seven days before producing it, has given notice of his intention to produce it to each other party and has, within five days after receiving a notice for inspection given by any of those parties, produced it for inspection by the party who gave the notice.

129 (2) In a civil proceeding, the provisions of subsection (1) apply only to a business record within the meaning of section 142 or a record to which section 73, 135, 138, 140 or 141 applies. [draft Canada Evidence Act, 1986, s.129; Bill S-33, s.139]

Authentication

130. (1) Authentication of a record means the introduction of evidence capable of supporting a finding that the record is what its proponent claims it to be.

(2) The proponent of a record has the burden of establishing its authenticity.

(3) The court shall 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 orally or by affidavit.

(4) The Governor in Council may make regulations respecting the form and contents of the affidavit referred to in subsection (3).

(5) Where evidence under subsection (3) is offered by affidavit, it is not necessary to prove the signature or official character of the affiant if his official character purports to be set out in the body of the affidavit. [draft Canada Evidence Act, 1986, s.130]

140. The proponent of a record has the burden of establishing its authenticity and that burden is discharged by evidence capable of supporting a finding that the record is what its proponent claims it to be. [Bill S-33, s.140]

Business and Government Records

142. In this section and sections 143 to 148,

"business" means any business, profession, trade, calling, manufacture or undertaking of any kind carried on in Canada or elsewhere whether for profit or otherwise, including any activity or operation carried on or performed in Canada or elsewhere by any government or any department, ministry, branch, board, commission or agency of any government or any court or tribunal or any other body or authority performing a function of government;

"business record" means a record made in the usual and ordinary course of business; "financial institution" means the Bank of Canada, the Federal Business Development Bank and any institution incorporated or established in Canada that accepts deposits of money from its members or the public and includes any branch, agency or office of any such Bank or institution. [draft Canada Evidence Act, 1986, s.142; Bill S-33, s.152]

143. (1) A business record is admissible whether or not any statement contained in it is hearsay or a statement of opinion, subject in the case of opinion, to proof that the opinion was given in the usual and ordinary course of business.

(2) Where part of a business record is produced in a proceeding, the court, after examining the record, may direct that other parts of it be produced. [draft Canada Evidence Act, 1986, s.143; Bill S-33, s.153]

144. (1) Where a business record does not contain information in respect of a matter the occurrence or existence of which might reasonable be expected to be recorded in the record if the matter occurred or existed, the court may admit the record in evidence for the purpose of establishing the absence of that information and the trier of fact may draw the inference that the matter did not occur or exist.

(2) In the case of a business record kept by a financial institution or by any government or any department, branch, board, commission or agency of any government under the authority of an Act of Parliament, an affidavit of the custodian of the record or other qualified witness stating that after a careful search he is unable to locate the information is admissible and, in the absence of evidence to the contrary, is proof that the matter referred to in subsection (1) did not occur or exist. [draft Canada Evidence Act, 1986, s.144; Bill S-33, s.154]

145. (1) For the purpose of determining whether a business record may be admitted in evidence under this Act, or for the purpose of determining the probative value of a business record admitted in evidence under this Act, the court may examine the business record, receive evidence 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.

(2) Where evidence respecting the authenticity or accuracy of a business record is to be given, the court shall require the evidence of the custodian of the record or other qualified witness to be given orally or by affidavit. [draft Canada Evidence Act, 1986, s.145; Bill S-33, s.155]

(3) Where a business record referred to in subsection (2) or record produced by a computer referred to in section 121 is a business record of a financial institution, the evidence of the custodian or witness shall be given by affidavit unless the court finds that the interests of justice require that it be given orally. [draft Canada Evidence Act, 1986, s.145(3)]

OR

(3) Where evidence under subsection (2) is offered by affidavit, it is not necessary to prove the signature or official character of the affiant if his official character purports to be set out in the body of the affidavit. [Bill S-33, s. 155(3)]

146. Any person who has or may reasonably be expected to have knowledge of the making or contents of any business record or duplicate or copy of it produced or received in evidence may, with leave of the court, be examined or cross-examined by any party. [draft Canada Evidence Act, 1986, s.146; Bill S-33, s.156]

147. (1) In a proceeding to which a financial institution is not a party, a business record of the financial institution is, in the absence of evidence to the contrary, proof of any matter, transaction, or account contained in the record.

(2) Unless the court for special cause orders otherwise, in a proceeding to which a financial institution is not a party,

(a) the financial institution is not compellable to produce any original business record of the institution if it produces a duplicate of the record admissible under section 122; and

(b) no officer or employee of the financial institution is compellable to appear as a witness to prove the matter, transaction or account to which the record relates.

[draft Canada Evidence Act, 1986, s.147; Bill S-33, s.157]

148. (1) On application by a party to a proceeding, the court may allow the party to examine and copy any business record of a financial institution for the purposes of the proceeding.

(2) Notice of an application under subsection (1) shall be given to any person to whom the business record to be examined or copied relates at least two days before the hearing of the application and, where the court is satisfied that personal notice is not possible, the notice may be given by addressing it to the financial institution. [draft Canada Evidence Act, 1986, s.148; Bill S-33, s.158]

(3) Nothing in this Act shall be construed as prohibiting any search of the premises of a financial institution under the authority of a warrant to search issued under any other Act of Parliament, but unless the warrant is expressly endorsed by the person who issues it as not being limited by this subsection, the authority conferred by the warrant to search the premises of a financial institution and to seize and take away anything therein shall, as regards the business records of the institution, be construed as limited to the searching of the premises for the purpose of inspecting and taking copies of the records. [draft Canada Evidence Act, 1986, s.148(3)]

Probative Force of Records

149. Where an enactment other than this Act provides that a record is evidence of a fact without anything in the context to indicate the probative force of that evidence, the record is proof of the fact in the absence of evidence to the contrary. [draft Canada Evidence Act, 1986, s.149; Bill S-33, s.159]

[162] These provisions appear to be a compromise between a detailed specialized computer provision and the present s. 30 of the Canada Evidence Act. They do contain special requirements applicable to computer produced records. And much of the language of s. 30 Canada Evidence Act is perpetuated in ss. 142 to 148. This means that courts would have to continue to rely on the phrases, "usual and ordinary course of business" (s. 142) and "the circumstances of the making of the record" (s. 145) under the 1986 proposal.

[163] A more specialized provision would replace or supplement s. 145 with specific key features of computerized record-keeping rather than merely leaving the court to choose its own features by way of phrases such as "the circumstances of the making of the record." For example, s. 145 could gain the same provisions as proposed at page 25 above for specialized rules for computer evidence, based on the National Imaging Standard reproduced in Appendix D below.

[164] In addition, the amendments recommended elsewhere in this paper to the photographic document provisions so as to include electronic imaging could be made part of the definition of the "original" in s. 119 above and added to the business and government records provisions in ss. 142 to 148 and s. 149. The definition of "business" in s. 142 includes "any government or any department, ministry, branch, board, commission or agency of any government or any court or tribunal or any other body or authority performing a function of government."

[165] The extra provisions would be:

119. In this section and sections 120 to 150,

"original" means

(a) in relation to a record, the record itself or any facsimile intended by the author of the record to have the same effect,

(b) in relation to a photograph, the negative or any print made from it, and [draft Canada Evidence Act, 1986, s.119; Bill S-33, s.130]

(c) in relation to a record produced by a computer system, any printout or other intelligible output that accurately reproduces, whether in the same or a modified form, the data supplied to the computer system; [draft Canada Evidence Act, 1986, s.19]

(d) in relation to a record produced by electronic imaging or other process stated in section 149, any printout that accurately reproduces the image or record produced in accordance with section 149.

149. [See proposed text at page 31.]


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