Older Uniform Acts

1995 Electronic Evidence Act Proposals

1995 Quebec, QC

Civil Section Documents - Proposals for a Uniform Electronic Evidence Act

By:
John D. Gregory, Ministry of the Attorney General of Ontario
Ed Tollefson, Q.C., for the Department of Justice

[See 1995 Proceedings at page 65.]

[1] Computers are everywhere nowadays. People rely on them for business and for personal matters. This means that what they produce often turns up in the courts, as do most other aspects of contemporary life.

[2] The Uniform Law Conference of Canada has undertaken to adopt uniform legislation to ensure that computer records can be used appropriately in court. We are asking for comment on some draft legislation, to ensure that it will be useful for this purpose.

[3] The present document contains three parts:

A. A brief overview of the law of evidence and how computer records may fit into it now.

B. A draft of a short statute to facilitate the use of computer records in evidence, plus annotations of that statute.

C. A draft of longer statutory provisions to rework all of the law that applies to the admission of records in evidence, including computer records. This draft is also annotated.


[4]

Inviting Response

1. Do we need this kind of legislation at all? Is there a problem?

2. If so, are the current drafts good ways to solve the problem? Are they too restrictive or too permissive?

3. Do you prefer the short statute or the long one, or some intermediate solution?

4. How can the draft statutes, or your preferred statute, be improved?

[5] We hope that the attached text will help you form constructive answers. Other comments are also welcome. Comments may be submitted in English or in French.

[6] If you know someone else who might be interested in the subject, or who might want to comment, feel free to copy this package and pass it on.

[8] Responses will be most useful to us if they are received before July 21, 1995. We will have to submit them to delegates to our annual meeting in time for them to prepare for the discussion in early August. We will then redraft one or both statutes in response to the comments, ideally for adoption during the year.

[9] We will send a copy of our final uniform statute to everybody who sends us comments, unless they do not want to receive it.

[10] Once the Uniform Law Conference adopts a uniform statute, it is up to the federal, provincial and territorial governments to enact it (or some version of it) as part of their laws. If you are interested in the subject, and if you think our final product is useful, you may wish to ask your government to enact it.

[11] This document has three parts:

A. Legal background - principles of documentary evidence
B. Short draft statute and annotations
C. Long draft statute and annotations

[12] An extensive survey of the legal issues in this field, written by Ken Chasse for the Uniform Law Conference, has been published in the Proceedings of the Uniform Law Conference for 1994. It contains references to cases and statutes that deal with electronic evidence. A very brief appendix of legal sources appears at the end of this document.

A. Some principles of documentary evidence

[13] The basic rule of evidence is that it must be the (sworn) oral account of facts of which the witness has personal knowledge. The witness is available in person in court to have his or her account tested by cross-examination.

[14] Information of which the witness does not have personal knowledge is "hearsay", that which the witness heard someone say (or which he/she learned in some other way without experiencing it first hand.) (The witness's opinions make up a distinct class of evidence, which is sometimes relevant to electronic records too.)

[15] Information in documents or other records is hearsay, since the person presenting the information as evidence in court does not have personal knowledge of that information. If the witness had the personal knowledge, it would not be necessary to use the documents to prove the facts in them.

[16] The traditional rule is that hearsay evidence is not admitted. This general rule has been eroded substantially in recent years. An argument can even be made that there is no longer a ban on hearsay evidence. There is simply a rule that hearsay evidence must be demonstrated to be reliable and its admission necessary to the proper adjudication of the case. For the purposes of this paper, we do not need to decide whether the present admissibility of hearsay evidence is a matter of exception or a matter of rule.

[17] Two subsidiary rules of evidence apply to documentary evidence. The first is the "best evidence" rule: to prove something in court, you must use the best evidence that can be produced. "Best" means closest to direct sworn oral evidence. This produces a hierarchy of documents judged on such criteria as when they were made, by whom they were made, their status as "original" documents or copies, and the like.

[18] The second subsidiary rule is an "exception" to the rule barring hearsay evidence. Courts have long agreed that documents should be admitted to prove the information they contain. The common law developed criteria for admissibility, such as that the documents were produced at the same time as the events they recorded; that they were produced in the ordinary course of the business of the party creating them; and that they were used and relied on by the creator in his/her/its business.

[19] These rules have been replaced or overlaid with statutory rules in the federal and provincial Evidence Acts. Many Canadian statutes classify documentary evidence depending on its origin and its form. Different rules apply to each. Government and other public documents are treated in one way, business records in another, business records that are also banking records in a third.

[20] The courts have interpreted these sections in inconsistent ways, sometimes appearing to apply "bank" standards to other documents, or "other" standards to bank documents. They have also used the common law tests of contemporaneity and the like in applying the statutory tests. This may be in part because they have not distinguished in every case when they were deciding admissibility and when they were judging the weight of the evidence.

[21] These criteria are aspects of the one of the tests for the admission of hearsay evidence: reliability. The other test is necessity. One of the main reasons admitting a document is necessary is because the oral evidence is not available. The person who has direct knowledge of what is reported in the document is not available, or the information is such a routine bit of data among much else that no one could reasonably be expected to recall learning or receiving the particular information to be proved.

[22] The "necessity" test has given rise to some confusion because the term is also used to justify using a copy of a document instead of an original. However, this justification is an aspect of the best evidence rule, not the hearsay rule. Applied to documents, the best evidence rule means that an original document is the preferred evidence. Sometimes this too has been altered by statute. Some statutes provide that a photograph of a cheque is admissible without proving how it came to be produced or used.


[23] Additional provisions have been made for other photographic and microfilmed documents. Some of them show their origins by requiring that the original (paper) documents must be retained for a period of years as well as the microfilm. (Presumably this allows parties to test the reliability of the microfilm by looking at the originals, even though the microfilm is admissible as is.)

[24] As a result, the law is somewhat confusing in theory. Not all the contentious issues have been mentioned here. However, documentary evidence is regularly used without serious problems of principle.

electronic evidence

[25] Electronic evidence is a version of documentary evidence. As a result, both of the above tests for the use of documentary evidence apply to it: the best evidence rule and the hearsay rule. How this is done and how it should change, if at all, is the subject of this consultation.

[26] Electronic evidence is information that is recorded electronically. It may be created electronically or simply stored electronically. It may be on paper at one or more stages of its "life" and electronic at others, such as a fax (though faxes are generally treated as copies of paper records rather than as computer records). It may exist in more than one place at a time - in two computers, for example. An incomplete sample of electronic records would include those in or created by single computers, computer-to-computer communications, with or without intermediaries and with or without transformation of the messages at both ends, magnetic strips on plastic cards, microcomputers on plastic cards (smart cards), electronic mail, bulletin boards and international communications networks.

[27] The different ways in which computers are used to create, store and retrieve business records involve either communications between computers and humans or computer to computer communications, the latter being merely a variety of the former with the intervention of a second computer or multiple computers. From the point of view of the law of evidence the different applications of computer technology will not affect the type of evidentiary provisions necessary to accommodate them, if those provisions concern operations common to all computer applications.

[28] Such operations are, for example, the sources of data and information used in databases, the entry of such data and information, business reliance upon such databases, and software reliability. General or specific references to such operations (placed in the business record provisions for example) would be applicable to all computer-produced business records. On the other hand, the relation between computer technology and microfilm could require a special change to the statutes because traditional microfilming has its own provisions in the Evidence Acts in Canada.

[29] Businesses and their lawyers express considerable interest in EDI (electronic data interchange). This can be defined as computer to computer transmission of data in structured forms, i.e. paperless trading. It does not require special treatment apart from Evidence Act provisions that apply to other computer-produced records. EDI's special legal issues concern contract law, not evidence law, e.g. trading partner agreements containing terms as to establishing the communications network, allocating costs and risks, determining security procedures, and procedures for verifying content, timing and authenticity of messages. They might also contain evidentiary provisions for settling disputes but they do not require intervention by an evidence statute. The validity of a private code of evidence might be addressed in a statute.

[30] Electronic imaging is a different example. The word "imaging" is commonly used in the information and image management industry itself to mean electronic imaging, which is the capture of exact images or pictures of documents onto optical or magnetic disk by means of an image scanner. It is expected to replace microfilming in the next few years. The electronic records so scanned become part of a computer memory. Technically they may be able to be altered, once in the memory, in undetectable ways, depending on how they are recorded. As a result, those interested in using imaging technology have prescribed standards for handling the information to increase the security of the information. Imaging straddles the common law and statutory rules relating to microfilm records and business records. Since these two are not consistent, we may need some new rule on imaging.

statutory reform

[31] Some other countries have amended their laws to deal with electronic evidence. Examples appear in Ken Chasse's paper. In Canada, the only general provisions appear in the new Quebec Civil Code. The specific sections appear in the technical appendix to this paper.

some legal guideposts

[32] With this much by way of background, we can now look more closely at the legal issues posed by electronic evidence. Here are some of the key points on which the discussion will turn.

[33] *Admissibility and weight: Should the electronic record be allowed into the courtroom discussion at all? If so, what factors are relevant in determining its effect? Some statutory rules provide that some features of the production of a record may not affect admissibility. Some may affect both admissibility and weight, at which point the question becomes one of clarity of legal rule: how can one manage one's records in away to ensure their best use in litigation, or how can one challenge the use of records produced by the other side?

[34] *Statute and common law: The common law rules for documents were detailed and narrow. Statutes have generally been more flexible and broader. However, they have also been vague enough that courts have reverted to the common law, or created a new common law of statutory reading, to interpret them. Electronic records challenge the vagueness of the statutes even more thoroughly. Should new statutory provisions pick up some of the common law standards and apply them expressly to electronic records, or define the new rules in more detail by some other means?


[35] *Types of document: Is the classification of rules by type of document (business, bank, government) adequate for electronic records, or does the electronic nature of the record unite the statutory classes so similar rules should apply to all?

[36] *Criminal and civil proceedings: The current law, both common and statutory, does not distinguish between evidentiary rules in different types of proceeding, though of course the Canada Evidence Act applies largely to criminal actions and the provincial statutes to civil. Is there any case for deliberate variation?

[37] *Role of consent: Is there anything in the nature of evidence that would prevent private parties from setting out by contract what criteria will be used for the admission and the weighing of evidence in litigation between themselves? Is the only concern one of equality of bargaining power in creating such a contract?

[38] Rules of law on this topic should seek to achieve three ends: accurate evidence of reliable records; fairness between proponent and opponent of the evidence; and workability in practice.

[39] Three approaches are possible in reforming and harmonizing the law in this area.

1. to add special subsections for computer-produced records to the existing business record provisions and possibly for imaged records to the microfilm provisions:

*the existing provisions seem to be adequate for traditional precomputer business records and therefore do not have to be disturbed for those records. However most current records are now computer-produced so special rules may be useful for them.

2. to re-write those provisions into an single integrated set of provisions having common definitional, procedural and other support provisions (as the Uniform Law Conference, among others, proposed in the early 1980s):

*this would produce the same legislation for all types of business (and other) records, rather than having separate provisions for computer-produced records and imaged records. If imaging becomes widely used as expected, the two sets of provisions will often have to be used together. Therefore they should be integrated for efficiency so as to reflect that reality.

3. to do nothing and let the existing business record provisions deal with computer- produced records as best they may:

*computer-produced records are being admitted under the existing provisions without the creation of court decisions or new statutes that could inhibit their admissibility or weight.

[40] The next two sections of this consultation paper set out what each of the first two options might look like as a statute. The annotations sometimes refer to a Model Law on Electronic Commerce adopted in May, 1995, by the United Nations Commission on International Trade Law (UNCITRAL), which may become an international standard for law in this field. The text of relevant sections of the Model Law are in the appendix.

[41] The short draft statute was prepared for the Uniform Law Conference. It may be
enacted on its own or incorporated into the current provincial, territorial or federal evidence statutes.

[42] The longer draft was prepared for the federal Department of Justice. For that reason, it is written in the form of amendments to the Canada Evidence Act, but it could be used with little variation by a province or territory that wished to use it in the place of the related provisions of the existing evidence statute. Some of the introductory discussion overlaps with that in this consultation paper, with more attention to the technical law.

B. Short draft statute and annotations

[43] The statute is set out as a whole, followed by the text again with annotations to appropriate sections.

[44]

Uniform Electronic Evidence Act

Application

1. This Act applies to any legal proceeding conducted under the laws of [enacting jurisdiction].

Definition(s)

2. "Data record" means information generated, stored or communicated by electronic or analogous means.

Admissibility of data record

3. In a legal proceeding, nothing prevents the admission into evidence of information on the ground that it is in the form of a data record.

Weight of data record

4. If the probative weight of information in a data record is challenged, the weight may be assessed according to one or more of:

(a )the reliability of the means by which the data record was generated, communicated or stored;
(b )the reliability of the means by which the integrity of the information was maintained;
(c) the reliability of the means by which the information is displayed for the use in the proceeding;
(d) the means by which the originator of the information is identified;
(e) any other factor relevant to its weight.

Original record

5(1 )Information in the form of a data record has the same status in evidence as an original version of the information if the information is printed on paper or otherwise displayed in a way that accurately reproduces the information in the form in which it was composed, as a data record or otherwise.

(2) Information may be held to be accurately reproduced in a data record despite any addition or change that arises in the normal course of storage, communication or display.

(3) The proponent of a data record may demonstrate that the information is accurately reproduced by evidence that the process or system used to reproduce it reliably reproduces information of the type in question and that the proponent has no reason to doubt the accuracy of the reproduction in the present case.

(4) In subsection (3), "reliably" means with a degree of reliability appropriate to the likely use of the record.

(5) Information stored as a data record in the form of optical images [or microfilm] is presumed to be accurately reproduced for the purposes of subsection (1) if it is stored in compliance with the applicable standard of the Canada General Standards Board current at the time of storage and maintained in compliance with the standard as amended from time to time.

variation by agreement

6. The provisions of this Act may be varied by agreement.

-- OR --

A person may agree with another person that as between them, the admissibility, weight or accuracy of a data record may be determined in a manner set out in their agreement, or that the criteria in this Act may be satisfied in a manner set out in their agreement.

other rules of law

7. The provisions of this Act operate in addition to and not in derogation of

(a) any other provision of [enacting jurisdiction] respecting the admissibility in evidence of any record or the proof of any matter, or

(b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.

[45]

"Short form" statute annotated

Application

1.This Act applies to any legal proceeding conducted under the laws of [enacting jurisdiction].

[46] Comment:Enacting jurisdictions must decide whether this Act is to stand on its own or form part of their evidence statute. If it is incorporated into the general
statute, then this section will not be needed. In any event this section should track the application provision of the relevant Evidence Act.

Definition(s)

2. "Data record" means information generated, stored or communicated by electronic or analogous means.

[47] Comment:This is taken from the United Nations Model Law, without examples and without its reference to "optical" means, which seems either ambiguous or redundant. "Communicated" may add to the definition some certainty that a record stored in one computer is admissible even if it had been generated in another.

[48] One can define the data record to be the information or the medium containing the information. The drafting of the other sections, and to some extent the concepts themeselves, depends on which option is chosen.

[49] NOTE: If one defined "record" broadly enough to include electronic records, then one could apply the usual rules that deal with records. We then might not need to provide for some of what is in this draft Act. It might yet be helpful, however, to provide for treating electronic records as originals, and possibly to deal with agreements on evidentiary standards. A redefinition of "record" may work better in a long form statute like that in part C, below, than in a short form such as this.

Admissibility of data record

3. In a legal proceeding, nothing prevents the admission into evidence of information on the ground that it is in the form of a data record.

[50] Comment: This probably states existing law. It is intended to remove doubt. The information in the form ofthe data record must still be otherwise admissible. For example, if it is a business record, it must comply with the usual exceptions to the hearsay rules that apply to business records. The proponent of the record may have to lead evidence that it is a business record, etc.

Weight of data record

4.If the probative weight of information in a data record is challenged, the weight may be assessed according to one or more of:

(a) the reliability of the means by which the data record was generated, communicated or stored;
(b )the reliability of the means by which the integrity of the information was maintained;
(c) the reliability of the means by which the information is displayed for the use in the proceeding;
(d) the means by which the originator of the information is identified;
(e) any other factor relevant to its weight.

[51] Comment:This section is intended to assist the court in judging the weight of the evidence. It is not intended to require the court to look at each factor in each case. The list may assist the proponent in deciding what might be useful to support the electronic record. Sometimes the electronic record will not be disputed at all, and the proponent should not have to satisfy a lot of requirements for theoretical reasons.

[52] Is there any danger that this section will invite attack, or have the effect of requiring proponents of data records to bring this kind of foundation (supporting) evidence even if the electronic character of the record is not in issue at all? Some people think that foundation evidence should be led in every case. Do you agree?

Original record

5(1) Information in the form of a data record has the same status in evidence as an original version of the information if the information is printed on paper or otherwise displayed in a way that accurately reproduces the information in its material form, whether it was first composed as a data record or otherwise.

[53] Comment:This section avoids the question whether a data record "is" an original record. It allows a data record to serve the function of an original in evidence law, if that data record meets certain conditions. (Deeming the data record to "be" the original leads to problems where there is a "real" paper original and a data image of it.]

[54] BUT can one have both the paper original and the computer image in evidence at the same time, or must, or should, the court prefer the paper if it is available? The "best evidence" rule would suggest yes. However, it applies only to evidence produced by a particular party. If A has a paper record and B has an image of it, B is allowed to produce the image as his or her best evidence, if the paper is not accessible. (If A is a party, then he or she can be compelled to produce it for the court.)

[55] This short form statute does not abolish the best evidence rule. Should it? Should we take the clear step of turning the investigation from the integrity of an object (a paper record, a photo) to the integrity of the system that (re)produces it to a court? Such a step would apply only to data records and not to evidence in general.

[56] The Act, even in a minimalist version, should at least prevent the argument that a printout is a copy in some meaningful way or that there is a single original somewhere useful where the data are entered into the computer. The point is to make what is displayed from/by the data record function as the original record, without being the original. That prevents creating multiple "originals" as the data record is copied and printed many times.

[57] Do we need an express rule to say that a printout is an acceptable way of displaying the information in the data record (here or in another section)? The proponent of electronic evidence will always have to demonstrate that the display or printout does show the record. This is a separate question from whether the record/display accurately represents the "original", if there is another original somewhere.

[58] Information in the form of data records may represent a range of "original" formats. These could be ranked according to whether the information put into the system (input) was in a fixed format or not. However, the proposed statute should work equally well for the whole range, if it is properly conceived and drafted.

[59] On one end of the range is an imaged document that reproduces a physical format of the piece of paper. A traditional microfilm does the same, but it is not a data record.

[60] In the middle are word-processed documents and, further along, e-mail messages, which may have physical forms, paragraphing, footnotes, and the like. Computer- originated faxes and computer-originated microfilm are in this part of the range too, as they keep their format on paper or on film as it was created in the machine.

[61] At the flexible end of the spectrum are computer records of data simply entered. There has to be some format to retrieve or use the information, but making it looks on the screen the way it looks on the page may not be very important to the user. The ability to manipulate the data may be more important, and the data may never be retrieved in the form or order in which they were entered into the system. e.g. business numbers like sales figures.

[62] This section relies on article 7 of the Model Law, which refers to the integrity of the information as it was "first composed in its final form". "Final form" really means "the form material to the use for which the proponent wants to introduce it". That could extend to a draft, or an admittedly amended version. This draft deletes the reference to finality. Should we use the wording suggested here?

[63] Consider the difficulty of proving that the record one has in one's computer is the same as what went into the other party's computer to be sent to you. If two versions are different, how can it be shown where the difference arose? If there is only your version, how do you demonstrate its accuracy? By a generic test like "this system usually produces good results"? See subsection (3).

(2) Information may be accurately reproduced in a data record despite any addition or change that arises in the normal course of storage, communication or display.

[64] Comment:This language is taken from the Model Law, but without its reference to an "endorsement", which does not seem either clear or clearly achievable.
Ontario's regulation on electronic documents for photoradar permits limited additions to tickets filed electronically, but does not expressly have them serve the function of originals.

(3) The proponent of a data record may demonstrate that the information is accurately reproduced by evidence that the process or system used to reproduce it reliably reproduces information of the type in question and that the proponent has no reason to doubt the accuracy of the reproduction in the present case.

[65] Comment:This is drawn largely from the 1986 draft of the Canada Evidence Act.

(4) In subsection (3), "reliably" means with a degree of reliability appropriate to the likely use of the record.

[66] Comment:This test is drawn from the Model Law, Article 7. Does the rule overlap unduly with s. 4? The two sections serve different purposes: s. 4 to
determine weight, s. 5 to determine capacity to be an "original" for any rule of evidence law requiring production of an original.

(5) Information stored as a data record in the form of optical images [or microfilm] is presumed to be accurately reproduced for the purposes of subsection (1) if it is stored in compliance with the applicable standard of the Canada General Standards Board current at the time of storage and maintained in compliance with the standard as amended from time to time.

[67] Comment:A short form statute should arguably NOT deal with imaging specifically. An imaged record is simply a kind of information (namely the form of
words on paper) that is being offered as a data record. It is admissible under s. 3, if a copy of the "original" is ever admissible. Where the original is destroyed, the image will be the best evidence. Its weight as a copy is determined under s. 4.

[68] On the other hand, imaging is increasingly common, and a statute providing certainty for its use may be helpful. The present provision is not intended to limit users to the CGSB standard. Images may well be admissible and probative without meeting that standard. The standard provides a presumption of integrity, however.

[69] The reference to microfilm may be dubious. The CGSB standard covers microfilm, but most evidence statutes do so too. Most microfilm provides a photographic record, not a data record. We should perhaps limit this provision to computer- originated microfilm records. If so, what language is appropriate?

[70] A short form statute does not seem to be the place to try to remove the six-year- retention rule for traditional microfilm records. We will just ensure that a similar rule is not imposed on imaging.

variation by agreement

6. The provisions of this Act may be varied by agreement.

-- OR --

A person may agree with another person that as between them, the admissibility, weight or accuracy of a data record may be determined in a manner set out in their agreement, or that the criteria in this Act may be satisfied in a manner set out in their agreement.

[71] Comment:Do we have to say that the usual contractual defences apply to the agreement - e.g. fraud, failure of consideration? That probably goes
without saying.

[72] Which version of this section is preferable?
Should we say that the agreement creates only a presumption of admissibility? Probably the parties should be left to decide how firmly they will bind themselves to their private standard.

other rules of law

7. The provisions of this Act operate in addition to and not in derogation of

(a) any other provision of [enacting jurisdiction] respecting the admissibility in evidence of any record or the proof of any matter, or
(b) any existing rule of law under which any record is admissible in evidence or any matter may be proved.

[73] Comment:This is taken from s. 30(11) of the 1986 draft Canada Evidence Act.

Other statutory provisions prevail. Common law rules may apply too. For example, a number of statutes allow for electronic evidence for particular purposes. In addition, this short form statute does not replace the business records rule or other exceptions to the hearsay rule.

[74] BUT we do not want to let the courts import into our electronic records rules either old rules from other statutes requiring original or signed documents, or the old common law business records tests (personal knowledge, duty to know etc) that they have imposed on some of the statutory business records rules

[75]Does each enacting jurisdiction have to review all its existing statutes for possible conflicts and decide whether the new rule or the old should prevail? Or can we devise a satisfactory general rule on conflicts?

[76] Should the new statute say that in the case of conflict, the most permissive provisions prevail? Should it make an exception if the conflicting provisions expressly override this statute? In other words, legislation could require a record to be on paper, or signed by hand, but only if it said so in so many words.

[77] Does this short form work with the present special provisions about banking and public documents?

C. Long form statute to cover all documentary evidence

[78] We turn to the final section, which is a redraft of the business records provisions of the Canada Evidence Act prepared for the federal Department of Justice. After a technical introduction, the proposed reforms are summarized, followed by draft provisions themselves and an annotation..

[79] This fuller version would not just repose electronic evidence on the usual rules of evidence, such as those about business records and those about best evidence. It would actively replace those rules in their application to all records, including electronic records. If we rely only on the shorter version, then we will have inconsistent rules across the country for electronic records, as there are inconsistent rules on business documents.

[80] Some of the policy choices in the longer version differ from those in the shorter version as well. We would like to hear which you prefer.

Next Annual Meeting

2018 Conference (Centennial)

Delta Hotel

Québec City, QC

August 12 - 16, 2018