Older Uniform Acts

1995 Electronic Evidence Act Proposals

PART I.1 - DOCUMENTARY EVIDENCE

Interpretation

2. The said Act is further amended by adding thereto the following section:

18.1 In this Part,

"computer program" has the same meaning as in section 342.1 of the Criminal Code;
"computer system" has the same meaning as in section 342.1 of the Criminal Code;
"data" has the same meaning as in section 342.1 of the Criminal Code;
"duplicate" means a copy that is a reproduction of the original made 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 electronic imaging, or by chemical reproduction or by other equivalent technique that accurately reproduces the original;
"electronic imaging" means a process by which a visually perceivable record is scanned and an exact image of the record is captured electronically and stored in a manner that can be read and reproduced by a computer system;
"original" means

(a) in relation to a record, the record itself or any duplicate intended to have the same effect by a person executing or issuing the record,

(b) in relation to a record that is a photograph, the photograph itself, its negative or any print made from the negative, and

(c) in relation to a record produced by a computer system other than as a result of electronic imaging,

  • (i) an array of data stored in a computer system that on command is capable of being identified and retrieved as intelligible output by a computer program, or
  • (ii) a printout or other intelligible output of data supplied to a computer system;

"photograph" includes a still photograph, photographic film or plate, microphotographic film, photostatic negative, x-ray film and a motion picture;

"public record" means any Act, ordinance, statutory instrument, regulation, order in council, proclamation, official gazette, journal, treaty or other record issued by or under duly constituted legislative or executive authority.

"record", except where the context requires otherwise, includes the whole or a part of any correspondence, memorandum, book, plan, map, drawing, diagram, pictorial or graphic work, photograph, microform, sound recording, videotape, or other form or material on or in which information is recorded or stored, that can be read or understood by a person or by a mechanical, electronic or other device.

"record produced by a computer system" includes any record made on, stored in or reproduced by a computer system

3. The said Act is further amended by adding immediately after section 18.1 the following heading and new sections:

Best Evidence Rule

18.11 Subject to this Act or any other Act of Parliament, production of the original is required in order to prove the contents of a record.

18.12 (1) 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.

(2) Where an admissible duplicate cannot be produced by the exercise of reasonable diligence, a copy other than a duplicate 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; or

(d) the original is a public record or is recorded or filed as required by law.

(3) Where an admissible copy cannot be produced by the exercise of reasonable diligence, other evidence may be given of the contents of a record.

(4) Evidence of the contents of a record shall not be receivable on behalf of the proponent of the 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.

4. The said Act is further amended by adding after section 18.12 the following heading and sections:

Authentication

18.13 Subject to this Act or any other Act of Parliament, or exception provided by the common law, the proponent of a record has the burden of establishing its authenticity, which burden may be satisfied by the introduction of evidence capable of supporting a finding that the record is what its proponent claims it to be.

18.14 (1) Unless the court orders otherwise, no record produced by a computer system shall be admitted in evidence under this Part unless the proponent of the record has, at least seven days before its production in the legal proceeding, given to each of the other parties notice of his intention to produce the record and notice that the record was produced by a computer system, and has, within five days after receiving any notice requesting production of the record given by any such party, produced it for inspection by that party.

(2) Unless the court orders otherwise, production of the record in the form of a printout or other intelligible output of the computer system constitutes compliance with a notice given under subsection (1) to produce the record for inspection.

(3) Where the proponent of a record produced by a computer system has given notice to an other party in accordance with subsection (1), proof of the authenticity of the record shall be deemed to have been waived by that party unless within five days after receiving the notice that party has filed with the court a notice requesting proof of the record's authenticity.

18.15 (1) The authenticity of a record produced by a computer system may be established 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 correspondence between the record in question and the data supplied to that system has been adversely affected in any material particular by any process or procedure or by any malfunction, interference, disturbance or interruption.

(2) The court may require that evidence respecting the authenticity of a record produced by a computer system be given by a custodian of the record, or other qualified witness.

(3) Evidence of a custodian of the record, or other qualified witness, may be given by affidavit unless the court requires that it be given by way of testimony in court.

(4) Where evidence under subsection (3) is offered by affidavit,

(a) it is sufficient for a matter to be stated to the best of the knowledge and belief of the affiant; and

(b) it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.

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

5. Subsection 30(1) of the said Act is repealed and the following substituted therefor:

30. (1) A record made in the usual and ordinary course of business 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.

6. The said Act is further amended by adding thereto, immediately after subsection 30(6) thereof, the following subsection:

(6.1) Where the court finds with respect to a record produced by a computer system that due to events or circumstances associated with any stage of its production there is reasonable ground to suspect that the record may not satisfy the requirements for admission in evidence under subsection (1), or if admitted in evidence the record's probative value may be adversely affected, the court shall conduct a hearing to address the issue and for that purpose may receive any additional evidence in respect thereof, which may be given by affidavit unless the court requires that it be given by testimony in court, including evidence in relation to

(a) the nature and sources of the data and instructions supplied to the system at all relevant times;

(b) the procedures that were followed, and the procedures that should have been followed in the preparation and supply of data to the system, and the storage, transmission and production of the record by the system; and

(c) any process, procedure, malfunction, interference, disturbance or interruption that adversely affected, or might reasonably be thought to have adversely affected, the supply of data to the system, or the storage, transmission or production of the record by the system.

7. The said Act is further amended by adding at the beginning of subsection 30(7) thereof, the following words:

(7) Subject to section 18.14 in the case of a record produced by a computer system,

8. Subsection 30(8) of the said Act is repealed, and the following substituted therefor:

(8) Where evidence is offered by affidavit under this section,
(a) it is sufficient for a matter to be stated to the best of the knowledge and belief of the affiant; and
(b) it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.

9. The definition of "record" in subsection 30(12) is repealed, and the following substituted therefor:

"record" for the purposes of subsections (3) and (4) does not include a copy of a record admissible under subsection 30(1).

10. (Option # 1) Section 31 is repealed.

10. (Option #2) Subsections (2) and (3) of section 31 are repealed and the following substituted therefor:

(2) A print, whether enlarged or not, from any photographic film, or a duplicate made by electronic imaging, of

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

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

(c) any record, document, plan, book or paper belonging to or deposited with any government or corporation,
is admissible in evidence in all cases in which and for the purposes which the object photographed, or of which an electronic image was taken, would have been admitted on proof that

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

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

(3) Evidence of compliance with the conditions prescribed by this section may be given by any one or more of the employees of the government or corporation, having knowledge of the taking of the photographic film or electronic image, of the destruction, loss, or delivery to a customer, or of the making of the print or duplicate by electronic imaging, as the case may be, either orally or by affidavit sworn in any part of Canada before any notary public or commissioner for oaths.

10. (Option #3) Section 31 is repealed and the following substituted therefor:

31. (1) In this section

"business" has the same meaning as in section 30; and

"photographic film" includes any photographic plate, microphotographic film and photostatic negative

(2) A print, whether enlarged or not, from any photographic film, or a duplicate made by electronic imaging, of

(a) an entry in any book or record kept by a business,

(b) any bill of exchange, promissory note, cheque, receipt, instrument or document held by a business, or

(c) any record, document, plan, book or paper belonging to or deposited with a business
is admissible in evidence in all cases in which and for the purposes which the object photographed, or of which an electronic image was taken, would have been admitted on proof that

(d) while the book, record, bill of exchange, promissory note, cheque, receipt, instrument or document, plan, book or paper was in the custody or control of the business the photographic film or electronic image was taken thereof, following nationally recognized standard procedures, in order to keep a permanent record thereof for official purposes.

(3) The court may require that evidence of compliance with the conditions prescribed by this section be given, orally or by affidavit, by the custodian of the record or other qualified witness having knowledge of the taking of the photographic film or electronic image, or of the making of the print or duplicate by electronic imaging, as the case may be.

(4) Where evidence is offered by affidavit under this section,

(a) it is sufficient for a matter to be stated to the best of the knowledge and belief of the affiant; and

(b) it is not necessary to prove the signature or official character of the person making the affidavit if the official character of that person is set out in the body of the affidavit.

11. The said Act is further amended by adding thereto, immediately after section 36, the following new heading:

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