Older Uniform Acts

1995 Electronic Evidence Act Proposals

COMPUTER-PRODUCED EVIDENCE

IN PROCEEDINGS WITHIN FEDERAL JURISDICTION

by Ed Tollefson, Q.C.

BACKGROUND

[81] This project is another step in Canada's long and frustrating journey along the road toward reform in the area of Evidence.

[82] The process started in early 1971 when it was decided that one of the first items on the agenda of the newly created Law Reform Commission of Canada would be a comprehensive review of the law of Evidence. The Commission spent more than four years on the project, studying the problems, consulting the Bar, the Bench and the law professors, and finally, in December, 1975, it published a report and accompanying Draft Evidence Code.

[83] The response of the Bar to the Draft Code was hostile. Many lawyers were opposed to the very idea of codification. Among those who were prepared to consider the content of the Draft Code, there was opposition to a number of provisions, but particularly strong opposition to those provisions that excluded the possibility of resort to the antecedent common law and that gave wide discretion to the trial judge. In the light of this reaction, the Minister of Justice decided not to use the Draft Code as the basis for new Evidence legislation. Instead, the Minister and his provincial counterparts asked the Uniform Law Conference of Canada to examine the problems, and the various legislative solutions proposed in Canada and elsewhere, with a view to developing a Uniform Evidence Actwhich could serve as a model for both the Canada Evidence Act and the provincial Evidence Acts. The Uniform Law Conference accepted the challenge and set up the Federal/Provincial Task Force on Uniform Rules of Evidence.

[84] After more than three years of work, the Task Force delivered its report. The draft legislation accompanying the report was in many ways different from the Commission's Draft Code: it was not a code, but rather a comprehensive Evidence Act, which left certain areas to common law development; its drafting was more precise and detailed than that of the Draft Code; and it reduced the scope of the discretionary powers given to the judiciary. The Uniform Law Conference held a series of plenary sessions in the spring and summer of 1981 to consider the Report, and at its annual meeting in August of that year, with the support of all jurisdictions, it approved a new Uniform Evidence Act based very largely on the Task Force recommendations.

[85] In November, 1982, the federal government tabled its version of the Uniform Evidence Act in the Senate as Bill S-33. The Senate Standing Committee on Legal and Constitutional Affairs held hearings on the Bill between January and June, 1993. Many of those appearing before the Committee were representatives of the Defence Bar, who alleged that they had not been properly consulted and that the Bill was biased in favour of the Crown. In an interim report on the Bill, the Committee said that it thought that the Department of Justice should conduct further consultations with the Canadian Bar Association, and other groups and individuals who had offered their services, with a view to submitting an amended bill to Parliament.

[86] In response to the Committee's interim report, the Department of Justice established what became known as the Tripartite Committee, composed of three representatives of the defence bar selected by the Canadian Bar Association, three representatives chosen by the provincial Attorneys General, and one representative from the federal Department of Justice. The Tripartite Committee considered each of the criticisms made before the Senate Committee and reached a general agreement on a tentative re-draft of the Bill which took into account several of the criticisms made by the Defence Bar.

[87] In 1985, resolutions were passed unanimously by both the Uniform Law Conference and the Provincial Attorneys General urging the federal Minister of Justice to reintroduce the Evidence Bill. However, shortly thereafter, a number of new ministers of justice and attorneys general (both federal and provincial) appeared on the scene, an important few of whom expressed vigorous opposition to the enactment of a comprehensive Evidence Act either federally or provincially. Finally, in May, 1987, the plans to introduce the Uniform Evidence Act on a nation-wide basis were dropped, leaving each jurisdiction free to do what it thought best as far as Evidence reform was concerned. The federal Department of Justice continued to maintain an interest in the project and that year published, in connection with an international conference in London, a consultation document containing draft legislation that incorporated the revisions to Bill S-33 agreed upon by the Tripartite Committee (hereinafter referred to as the "Proposed Canada Evidence Act").

[88] Interest in reform of the law of Evidence re-surfaced at the 1994 annual meeting of the Uniform Law Conference, where a joint session of the Uniform and Criminal Law Sections, after considering a paper by Mr. Kenneth Chasse on the evidence problems associated the reception of computer output, passed a resolution that a draft uniform statute on computer-produced evidence be prepared. The present consultation document considers what might be appropriate legislative initiatives to deal with computer-produced evidence in proceedings falling within federal jurisdiction.

PROBLEMS WITH COMPUTER-PRODUCED EVIDENCE

[89] As computer-produced evidence almost always takes the form of a printout, it is usually classified under the rubric "documentary evidence". Therefore the party tendering a printout as evidence, the "proponent", must satisfy the same rules, whether statutory or common law, as would have to be satisfied if the document were of a more traditional nature. However, computer technology is so different from what has gone before that it does not readily fit into the existing scheme of things. It strains definitions of terms such as "original", "record" and "copy". It challenges one of the basic assumptions of our laws, namely, that copies are less accurate than original documents. It creates significantly more difficult problems of authentication. Nor are these problems simply legal curiosities, for the computer has revolutionized the way in which business is done and records are kept, and the failure of the law to keep pace with technological developments in this area forces many businesses to operate in two worlds, keeping two sets of records -- the computer records that they use on a day to day basis, and the traditional paper records that are kept in case they are needed for litigation purposes. This duplication of effort and additional cost of storage space for hard copy records, make Canadian businesses less efficient and therefore less competitive in a world-wide marketplace. Moreover the disparity between the law and reality is increasing year by year because of the rapid changes in computer technology. It is therefore urgent that the problems be addressed and that reforms be implemented that will take into account the needs of business and at the same time protect the rights of individuals.

[90] The problems with the reception of computer-produced evidence may be addressed under the following headings: "Compatibility with the Current Law", "Authentication" and "New Developments".

Compatibility with the Current Law

1. The Canada Evidence Act

[91] Most of the problems to date have involved the question whether a computer printout constitutes a "record" or "copy" in the context of sections 29 and 30 of the Canada Evidence Act (or

equivalent sections of provincial or territorial Evidence legislation). These sections deal with the reception into evidence of information contained in banking and business documents respectively. They create statutory exceptions to the Hearsay Rule with respect to the proof of the contents of records "made in the usual and ordinary course of business", thereby reducing interference with the operations of financial institutions and businesses.

[92] With the advent of computerized record-keeping in the banks, the courts soon had to determine whether a statement of account contained in a printout from a bank's computer constituted a copy of an entry in a bank record for the purposes of s. 29 of the Canada Evidence Act. Section 29(1) provides for proof of the contents of any entry in any book or record kept in any financial institution by means of a copy of the entry. In R. v. McMullen, 1 the Ontario Court of Appeal decided that a computer printout was a copy for the purposes of s. 29(1) so long as it satisfied the four conditions of admissibility set out in s. 29(2), namely:

  • 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;
  • that the copy is a true copy thereof, such proof to be given either orally or by affidavit by the manager or accountant of the financial institution. 2

[93] While the judgment in R. v. McMullen made it clear that computerized record-keeping was acceptable, and that a printout of an entry could be a "copy" for purposes of s. 29, it did not address the question of what constituted the "record" of the bank. This issue arose in R. v. Bell and Bruce, 3 where the bank kept its records on a computer and at the end of each month with respect to each account printed out two copies of a statement of account showing opening and closing balances and all transactions taking place in that month. One copy was sent to the branch (where it was kept for fifteen years) and the other was sent to the customer. The individual transactions were then erased from the computer's memory. On the basis of McMullen, the Defence argued that since the printout was a "copy" of an entry, the "record" had to be the memory of the bank's computer. As the memory no longer contained the details of the statement, the bank had no existing record as required by the third condition of s. 29(2); therefore the printout was not admissible as a copy of the record. The trial judge accepted this argument and dismissed the case, but the Crown appealed. While the Ontario Court of Appeal agreed that in this case the computer's memory did not contain a record of the entry in question, the provisions of s. 29(2) were nevertheless satisfied because the record of individual transactions, which the bank relied on itself, was the printout sent to the branch. Speaking for the Court, Weatherston J.A. said:

McMullen is authority for the proposition that information stored in a computer is capable of being a "record kept in a financial institution", and that the computer print-out is capable of being a copy of that record, notwithstanding its change in form. It is not authority for the proposition that the stored information is the only record, or that a computer print-out is only a copy of that record.

Because of the rapidly changing nature of the technology, it would be impossible to lay down general rules to govern every case. It is always a question of fact whether any recorded information (in whatever form) is a "record kept in any financial institution", but I think the following general propositions have so far emerged:

1. A record may be in any, even an illegible form.

2. The form in which information is recorded may change from time to time, and the new form is equally a "record" of that kind of information.

3. A record may be a compilation or collation of other records.

4. It must have been produced for the bank's purposes as a reference source, or as part of its internal audit system and, at the relevant time must be kept for that purpose.

Before computers were used by banks, a teller's journal was the original record. The entries in that journal were posted to a ledger, and that became a second record. I have no doubt that the ledgers of all accounts in a branch were collated so as to produce a ledger for the branch, and that became a record. So it makes no difference that the original information changes form, or becomes absorbed in some larger record. The authenticity of the record as evidence is sufficiently guaranteed by compliance with s-s. (2) of s. 29. 4

[94] An appeal against the decision in R. v. Bell and Bruce was dismissed by the Supreme Court of Canada, 5 in a very short judgment which cited with approval the reasons given by the Court of Appeal. The propositions set out by the Court have provided very useful guidance for other courts and for the banks in their record-keeping. However, one important question still remains to be answered, namely, what is the record where there is a printout which is relied upon on a daily basis, but the information still remains on the memory of the computer? Would the court find that the business reliance on the printout made it the record, or would the information in the memory, as the origin of the printout, be classed as the record for purposes of s. 29?

[95] Unlike s. 29, s. 30 [the business record provision] contains a definition of "record":

30(12) In this section, . . . "record" includes the whole or any part of any book, document, paper, card, tape or other thing on or in which information is written, recorded, stored or reproduced and, except for the purposes of subsections (3) and (4), any copy or transcript admitted in evidence under this section pursuant to subsection (3) or (4).

[96] The definition is almost ludicrously wide -- a "thing on or in which information is . . . stored . . . " would include a bookshelf or a filing cabinet -- which might lead courts to give a narrower interpretation, more consistent with the examples listed at the beginning of the definition.

[97] The courts have sometimes found a computer printout to be a record for the purposes of s. 30, 6 but there has not been any analysis of the issue in any of the cases. The question is of considerable importance because if the court finds the printout is the record, it will be admissible in evidence under s. 30(1) on proof that it was made in the usual and ordinary course of business. 7 If, on the other hand, the record is considered to be found in the computer's memory (as must be intended by many, if not most, businesses which have computerized to avoid paper burden), a printout is classed as being a copy of the record and is admissible in evidence under s. 30(3), but only where it is accompanied by an affidavit setting out the reasons why it is not possible or reasonably practicable to produce the record, and another affidavit of the person who made the copy, setting out the source from which the copy was made and attesting to its authenticity. 8 The irony is that the document that is presented in evidence in each case, i.e. the printout, is identical, but in one case the proponent has to do nothing other than prove that the record was made in the usual and ordinary course of business, while in the other case he has to provide an affidavit explaining the absence of the record and a second affidavit of authenticity.

[98] In R. v. Sunila and Solayman, 9 a prosecution under the Narcotic Control Act, the Crown presented in evidence a printout of data compiled by a computer on board an Airforce surveillance plane, part of which data showed the movements of a particular ship. MacIntosh J. of the Nova Scotia Supreme Court, in an oral judgment, found that the printout would have been admissible as a record under s. 30(1) of the Canada Evidence Act if it were not for the fact that he also concluded that it was "a record made in the course of an investigation or inquiry" and therefore was an exception that fell within s. 30(10)(a)(i). The Crown also argued that the printout should be admissible under s. 26 of the Canada Evidence Act as a copy of an entry in a "book" kept in an office or department of the Government of Canada, but the judge found that while the word "record" could include a computer, it would do too much violence to the English language to say that "book" included a computer. The judge may well be right as a matter of strict statutory interpretation, for the primary definition of "book" in most dictionaries would include reference to pages bound in a cover. But from a practical point of view, the decision shows the tyranny of words. Because of changes in technology, we can now provide a protective cover by putting the text into a computer. Indeed, it is fair to assume that a great majority of books prepared in the usual and ordinary course of government business today are prepared on a computer, and their original text is to be found in the memory of a computer.

[99] The conclusion that one can reach is that the provisions of the Canada Evidence Act do not provide a particularly comfortable fit for computer-produced evidence. They were not prepared with the computer in mind, so their terminology is inappropriate or ill-defined. Having been prepared with the objective of resolving particular problems, the relevant sections of the Act reveal inconsistencies of approach and unwarranted overlapping which affects all forms of documentary evidence, not just computer-produced evidence.

2. The Common Law

[100] Documentary evidence that is not admissible by virtue of a statute may be admissible at common law, and even in cases falling within s. 30(1) of the Canada Evidence Act, by virtue of s. 30(11) the litigant may choose to establish admissibility under the common law. 10 But if the proponent wishes to prove the contents of a document at common law, he must satisfy the Best Evidence Rule, and if the proponent is also asking the court to conclude that the statements in the document are true, he must satisfy the Hearsay Rule.

[101] The Best Evidence Rule requires that where a party wishes to prove the contents of a document, he must produce the original document. The justification for excluding secondary evidence -- such as copies or oral testimony of the original document -- is that any copy may contain

errors, either negligent or fraudulent, and oral testimony about the contents of a document is almost bound to contain some inaccuracies. Moreover, particularly in cases where the authenticity of the original document is in question, tendering secondary evidence, even a high quality copy, could mask important details regarding handwriting, type of paper etc.

[102] Recognizing that in many cases the application of the strict rule requiring the production of the original document would lead to injustice, the common law has developed a number of exceptions where secondary evidence will be permissible. The common law exceptions are based on the principles of necessity and reliability The necessity criterion has been found to be satisfied where it is proved that the original (1) is lost or destroyed (2) is in the hands of an opponent who will not produce it (3) is in the hands of a stranger to the litigation who cannot be compelled to produce it (4) is of such a nature (e.g. a tombstone, inscription on a wall, etc.) that is would be impossible, impracticable or even illegal to bring it into court, or (5) is a public document the production of which would cause inconvenience to the public. 11 To comply with the second principle, namely, "reliability", the secondary evidence being proffered must be "legitimate and trustworthy evidence, inferior to primary [i.e. the original document] solely in respect of its derivative character, and must not consist of conjectural or illegal matters." 12 Perhaps inconsistently, once the court is satisfied that a particular piece of secondary evidence satisfies the threshold test for reliability, the law does not require the production of the best secondary evidence available. Thus, a litigant could produce oral testimony of the contents of the original document even though a high quality copy is available. 13

[103] If a proponent is seeking to have a computer printout admitted into evidence under the common law, in order to satisfy the Best Evidence Rule, the court will have to determine whether the printout is to be characterized as an "original document" or a "copy". It is suggested that this question will pose even more difficult theoretical problems than have confronted the courts in relation to the interpretation of the words "copy" and "record" under the provisions of the Canada Evidence Act. This is because the common law Best Evidence Rule tests the admissibility of secondary evidence against the "original document" rather than a "record made in the usual and ordinary course of business". This emphasis on the point of origin may result in printouts always having to be treated as copies, because a printout is not the point of origin: behind the printout is a man-made device from which the printout's message and format originates, and which can reproduce other printouts just like the first when and as often as the device is directed so to do. It would seem to follow that if the printout is a copy, then the computer's memory, as the point of origin of the message, must contain the original. However, this raises the question whether a computer's memory is a "document" at common law. Traditionally, the term "document" has been defined as any material on which written or printed information is conveyed; 14 although, more recently, in Tide Shore Logging v. Commonwealth Insurance Company, 15 Murray J. found that an audio tape was a document.

[104] In addition to satisfying the Best Evidence Rule the proponent of a printout at common law may have to satisfy the Hearsay Rule, for documents are by nature hearsay, being evidence of what was stated on another occasion. The Hearsay Rule precludes the reception of hearsay where it is being adduced for the purpose of proving the truth of the statement. The reason for the exclusion is the common law assumption that better evidence can be obtained by having the person who made the statement called to testify in open court and subject to an oath and cross-examination.

[105] An inflexible application of the Hearsay Rule could exclude very relevant evidence, so over the years the courts developed a number of exceptions where particular circumstances provided

some guarantee of the trustworthiness of the statement, and the evidence could not be obtained in any other way. Gradually there was established an exception with respect to records made under a business duty, but there were many conditions which had to be met in order for a statement to be admissible as an exception to the Hearsay Rule. Ewart 16 says that to be admissible the record had to be (1) an original entry, (2) made contemporaneously with the event recorded, (3) in the routine, (4) of business, (5) by a person since deceased, (6) who was under a specific duty to another to do the very thing and record it, (7) and who had no motive to misrepresent. The existence of these factors not only established the necessity of resorting to hearsay (the person now being dead) but provided some guarantee of trustworthiness arising from the routine and fear of discipline if there was any breach of the duty. In 1970, in Ares v. Venner, 17 the Supreme Court of Canada expanded this exception by admitting into evidence entries made on the plaintiff's hospital records despite the fact that the nurses who had made the entries were available but had not been called by either side to testify. The Court found that the entries had been made contemporaneously with the observations, and that they had been recorded by someone who had personal knowledge of the matter and who was under a duty to record the observations. In 1990, in R. v. Khan, 18 and in 1992, in R. v. Smith, 19 after examining the fundamental nature of the Hearsay Rule, the Supreme Court of Canada swept aside the pigeon-hole approach to exceptions in favour of a general exception to the Rule based on two criteria --necessity and reliability. While in both cases the necessity criterion was met because the person who made the statement was unavailable to testify, the Court made it clear that other circumstances would also qualify. In a subsequent decision, R. v. B (K.G.), 20 the Chief Justice of Canada explained that reliability was the main criterion, and that where there are very high circumstantial guarantees of reliability the necessity criterion might be satisfied by expediency or convenience. He referred to Ares v. Venner as an example of such a situation. 21

[106] As far as common law exceptions to the Hearsay Rule are concerned, there do not appear to be any problems that would affect computer-produced evidence more than any other kind of documentary evidence. Assuming that there are no questions about possible improper alterations to the text, the great accuracy with which the computer can reproduce in a printout what is in its memory at the time of printing may in fact enhance the reliability of the document in the eyes of the judge; although the accuracy of the text really is a Best Evidence issue inasmuch as the statement may still be untrue.

Authentication

[107] Many lawyers are unclear on the meaning of "authentication" and how it relates to the "admissibility" of documentary evidence. A good explanation is found in Rule 901(a) of the U.S. Federal Rules of Evidence, which describes authentication in the following manner: "The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." In other words, "authentication" is to the admissibility of documentary evidence what "identification" is to the admissibility of an exhibit. Some documents --usually documents under the seal or signature of a public official -- are self-authenticating, but normally the common law requires that the proponent have the document identified by a witness who is acquainted with it. Where the document is a copy, the court must be satisfied that it is an authentic copy of the original. Statutory provisions may also impose conditions that must be met before a document can be treated as authentic: see, for example, s. 29(2) of the Canada Evidence Act with respect to the reception of a copy of an entry in the records of a financial institution, 22 and s. 30(3) with respect to the reception of a copy of a business record. 23


[108] As Rule 901(a) of the U.S. Federal Rules of Evidence states, satisfying the court of the authenticity of a document is a condition precedent of admissibility, but it does not guarantee that court will find the document to be admissible in evidence: for example, the court may find that the document is an authentic copy of the original, but it will be excluded under the Best Evidence Rule if the original is subsequently produced and authenticated; or an authentic original document will be ruled inadmissible if it is being tendered to prove the truth of its contents and it does not fall within one of the exceptions to the Hearsay Rule.

[109] There are no statutory rules relating specifically to the authentication of a computer printout, so, as with documents in other forms, it is necessary for the proponent to establish that it is what he claims it to be. However, given the technical complexity of the computer, the possibility (remote though it may be) of system failure, and the potential for alteration of the text due to human interference (caused either deliberately or negligently), this may not be easy. The clearest judicial statement to that effect is found in R. v. McMullen 24 (referred to above), dealing with whether a computer printout was a copy for the purposes of s. 29(2) of the Canada Evidence Act, where Morden J.A. (for the court) said:

The nature and quality of the evidence put before the Court has to reflect the facts of the complete record-keeping process -- in the case of computer records, the procedures and processes relating to the input of entries, storage of information and its retrieval and presentation . . . If such evidence be beyond the ken of the manager, accountant or the officer responsible for the records . . . then a failure to comply with s. 29(2) [of the Canada Evidence Act] must result and the print-out evidence would be inadmissible. 25

[110] However, this investigative approach was not repeated in the judgment of the same court in R. v. Bell and Bruce, 26 where, shortly after stating that in order to qualify as a bank record a document "must have been produced for the bank's purposes as a reference source, or as part of its internal audit system and, at the relevant time must be kept for that purpose", Weatherston J.A. (for the Court) said that "[t]he authenticity of the record as evidence is sufficiently guaranteed by compliance with s-s.(2) of s. 29." 27

[111] Section 29 only applies to financial institutions, which are required by the nature of their business to balance their books at the end of each day and are subject to regular and stringent audits. Moreover, their computer security systems are presumably such that they are not readily accessible by unauthorized persons. In such circumstances, where a bank manager or accountant swears under s. 29(2) that the entry in question was made in one of the ordinary books or records of the bank, that the book or record is in the custody or control of the bank and that the copy adduced is a true copy of the entry, a court (as in R. v. Bell and Bruce) might reasonably assume that it is a true copy, leaving it to the opponent of the evidence to produce evidence and arguments to challenge its weight.

[112] But the sense of confidence we may have with respect to the record-keeping of financial institutions is not readily transferable to every business, for the term "business", as defined in the business records section (s. 30(12)), covers everything from the largest multi-national corporation to a one-person business or a volunteer agency. Yet, while the authenticationrequirements of s. 30(3) for copies of business records are almost as stringent as those in s. 29(2) for copies of financial records, the only authentication requirements imposed by s. 30(1) with respect to the admissibility of the record itself are that what is produced is the record (not a copy) and that it was

"made in the usual and ordinary course of business". 28 The assumption upon which this provision is based is that a business, as a matter of self-interest, will maintain accurate and truthful records.
[113]

Perhaps in recognition that many businesses are distinctly "unbusinesslike" in the conduct of their affairs and the control of access to their records, s. 30(6) give the court fairly broad investigatory powers, which it appears to be able to exercise on request or ex proprio motu:

(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 admitted into evidence under this section, the court may on production of any record, examine the record, admit 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.

[114] The opening words of s. 30(6) are usually interpreted as being a roundabout way of saying that the court may inquire into either the admissibility or the probative value of a record produced. The court also has powers which it may exercise under s. 30(9):

(9) Subject to section 4, [which deals with the competence and compellability of the 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 the leave of the court, be examined or cross-examined thereon by any party to the legal proceeding.

[115] In addition to the powers expressly given to the court under ss. 30(6) and 30(9), Barry J. in R. v. Sheppard 29 excluded a computer printout even though it was found to have been made in the usual and ordinary course of business, because he found that the Crown had failed to prove that the record was reliable. Barry J. said: "In my view the authorities hold that s. 30(1) carries the necessary implication that such a record will be admitted when the judge has examined it and exercised his discretion to accept it as being an authentic record of its contents made in the ordinary course of the company's business." 30

[116] Therefore, there is authority for the judge to permit or require proof of details of circumstances relating to the operation of the record-keeping system, which in the context of a computerized system could involve proof of "the procedures and processes relating to the input of entries, storage or information and its retrieval and presentation" as suggested by the Ontario Court of Appeal in R. v. McMullen. 31

[117] Critics of s. 30, many of whom are involved in records management, 32 say that its present provisions do not give enough guidance regarding what the court will be looking for in determining the admissibility of a computer-produced record. As a result, litigants do not know how to prepare for trial, and businesses do not know what steps to take in their record-keeping in order to assure that their documents will be found admissible. If it is left to the courts it may take years to arrive at a satisfactory solution that would apply across the country. Kenneth Chasse, a lawyer with expertise in the law relating to computers, maintains that another reason that s. 30 requires change as far as computer-produced evidence is concerned is that computer-stored records are subject to risks of destruction or alteration that no other form of stored information is. The risks are in the form of system failures, software problems and the danger of unauthorized access to the file through other terminals in the network or by hackers who may be hundreds of miles away. Moreover, in the case of a text stored on a computer it is extremely difficult and costly to identify alterations as being improper, for the computer leaves few traces that the text was interfered with. Chasse feels that it is unfair to put the party opposing the admissibility of computer-produced evidence to the high cost of conducting an investigation of someone else's computer system. Instead, the proponent of such evidence should be obliged to establish a higher threshold of reliability before the evidence is found to be authentic and admitted. In a paper presented to the Uniform Law Conference at its annual meeting in 1994, Chasse suggests that the problems regarding the reliability of computer-produced records might be resolved by amending the Canada Evidence Act (and the provincial Evidence Acts) to include special requirements for the admissibility of computer printouts as a business record under s. 30, such as proof that the record was made contemporaneously with the event recorded and was made as part of a routine of the business by someone with no motive to misrepresent. 33 Alternatively, he suggests an amendment that would require the judges, in determining the admissibility and weight of records produced by a computer, to go through a checklist of questions such as the following:

  • What are the sources of data and information recorded in the databases upon which the record is based?
  • Was the data and information in those databases recorded within a reasonable time after the events to which the data and information relates?
  • Was the data and information upon which the record is based of a type that is regularly supplied to the computer during the regular activities of the organization?
  • Were the entries into the databases made in the regular course of business?
  • Did the business rely on those databases in making business decisions at or about the time the record was made?
  • Did the computer programs used to produce the output, accurately process the data and information in the databases involved?
  • Did the security features used provide a guarantee of the integrity of the record? 34

[118] He suggests that a supervising officer of any well-run information or record-keeping facility would be the only witness required to answer these questions, except in cases where a unique software was being used and the supervisor cannot testify to its history of reliability.

[119] Those who oppose the introduction of special requirements with respect to computer-produced evidence argue that the fact that a record was made in the usual and ordinary course of business shows that the business was prepared to rely on it in making business decisions, and this should be enough to satisfy the admissibility threshold for any form of business record. They point out that s. 30 already contains extensive means for challenging both the admissibility and weight of computer-produced records tendered in evidence. They warn that in a large business it might be very difficult, time-consuming and costly to answer some of the questions in Mr. Chasse's checklist, and might require calling several witnesses. 35


[120] While the two sides do not agree on the appropriate solution, there is a measure of agreement on the problems with the current law. First, there is a great deal of uncertainty about how the law, particularly s. 30(6), will be applied, and this makes it difficult for the parties to prepare for litigation and for businesses to know how they should keep their records. Second, there are risks to the integrity of records kept on a computer that do not exist with respect to other forms of information processing and storage, and if alterations are made, either negligently or deliberately, they can be extremely difficult to detect. Third, s. 30(1) provides little assurance that the record produced to the court is the same as the one that was originally made in the usual and ordinary course of business, for while self-interest may be an adequate guarantee that most businesses will maintain accurate and truthful records, it is not true for many others. The second and third problems combined place the party opposing the introduction of computer-produced business records in a difficult situation.

New Developments

[121]There are two recent developments in relation to computer-produced evidence which need to be examined in considering the appropriateness of current laws of evidence. The first relates to contracts made, computer to computer (electronic data interchange--EDI) and the second is the new technology of "electronic imaging".

1. Electronic Data Interchange -- EDI

[122] Sometimes referred to as "paperless trading", EDI involves computer to computer communication on agreed upon topics, using agreed upon formats. The Automatic Teller Machines (ATMs) are the most common example, where a computer takes instructions, contacts another computer which acts upon the instructions, updates your account, and gives instructions to the first computer in terms of delivering money and issuing a statement of the transaction. Some government departments are now trying out EDI as a way of receiving payments, receiving offers and bids, making payments to beneficiaries etc. Most of the legal problems in relation to this kind of business communication are of a contractual nature. The evidence problems associated with litigation involving such contracts appear to be no different from those arising in other contract disputes. Therefore no special action in relation to Evidence law need be taken.

2.--Electronic Imaging

[123] Electronic imaging involves using a scanner to capture an image of a document, digitize it and store it on a magnetic or optical disk, which can be viewed on a computer screen. Storage on an optical disk is non-erasable so that it provides an electronic equivalent of microfilming. Indeed, some suggest that it is likely to become the preferred method of storing documents that originate in hard copy, because it takes less space and, being readily accessible by computer, is more convenient than microfilm. The Canadian General Standards Board (CGSB), in collaboration with representatives from government and industry, has developed a national standard for the preparation, control and storage of microfilm and electronic images. 36

[124] As the industry views imaging and microfilming in the same context, it is natural to inquire whether similar conditions to those set out in s. 31 of the Canada Evidence Act should be applied also to imaging. Section 31 makes a print from a photographic film (including microfilm) of (a) an entry in a book or record kept by, or (b) any bill of exchange, instrument or document held by, a government or a select group of corporations admissible in evidence to the same extent and for the same purposes as the object photographed would have been admitted. As a condition of admissibility it must be established by evidence of someone with personal knowledge that the film was taken in order to keep a "permanent record" of the document and that the object photographed subsequently was destroyed by or in the presence of one or more of the employees of the government or corporation, or was lost or delivered to a customer. 37

[125] While linking imaging to microfilming would perhaps help to establish its acceptability, it might be argued that technologically it is a specialized computer operation and legally it ought to be dealt with as such. Moreover, s. 31 itself needs to be reconsidered, for it is out of date, is limited in availability and overlaps the area covered by s. 30. Any extensive revision of the documentary evidence provisions of the Canada Evidence Act ought therefore to rationalize these two sections and ss. 26 and 29 that also overlap s. 30. 38

[126] If on the other hand it is decided that there is merit in modifying s. 31 to include electronic imaging, the accessibility of this method of storage should not be limited as at present to the government and a few large corporations. It is also questionable whether destruction of the item photographed should be a requirement for the admissibility of the photographic print. The reason for the requirement originally was to establish the necessity of resort to the secondary form of evidence. But this is not required in s. 30, and now it appears that the common law itself regards the necessity criterion as being satisfied by expediency or convenience where the reliability of the secondary evidence is very high. 39 There are many situations where it is important to have an unalterable copy and also keep the original for archival purposes.

[127] To enhance the authority of such a copy, it would obviously be desirable for the proponent to prove that the copy, whether by imaging or microfilm, was made and stored in substantial compliance with the CGSB Standard on the subject. However, it is questionable whether that needs to be legislated as a condition of admissibility, for standards in an evolving field of technology do tend to change frequently; moreover, it would probably be wise to maintain some degree of flexibility, as non-compliance with some of the details of the Standard perhaps should affect the probative value rather than the admissibility of the reproduction. In any event, once the Bar and Bench become aware of the Standard, it will be used as a basis for supporting or attacking this kind of evidence.

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