Older Uniform Acts

1995 Electronic Evidence Act Proposals

FOOTNOTES

1 (1979), 47 C.C.C. (2d) 44, at 506.


2 Ibid., at 506. The provision was amended by the Criminal Law Amendment Act 1994, which broadened s. 29(2) so that the evidence may be given by any person employed by the financial institution who has knowledge of the book or record.


3 (1982) 65 C.C.C. (2d) 377.


4 Ibid., at 380-81.


5 [1985] 2 S.C.R. 287.


6 R. v. Sanghi (1971), 6 C.C.C. (2d) 123 (NSCA); R. v. Vanlerberghe (1978), 6 C.R. (3d) 222 (BCCA); R. v. Bicknell (1988), 41 C.C.C. (3d) 545 (BCCA).


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


8 Section 30(3) provides: "Where it is not possible or reasonably practicable to produce any record described in subsection (1) or (2), a copy of the record accompanied by an affidavit setting out the reasons why it is not possible or reasonably practicable to produce the record and an affidavit of the person who made the copy setting out the source from which the copy was made and attesting to its authenticity, each affidavit having been sworn before a commissioner or other person authorized to take affidavits, is admissible in evidence under this section in the same manner as if it were the original of the record."


9 (1986), 26 C.C.C. (3d) 331 (NSSC).


10 Thus in R. v. Sunila and Solayman, supra, fn. 9, the judge found that though the computer printout was not admissible under either s. 30 or s. 26 it was admissible under the common law as enunciated in Ares v. Venner, [1970] S.C.R. 608.


11 See "Report of the Federal/Provincial Task Force on Uniform Rules of Evidence" (1982), at 380.


12 See Bramble v. Moss, L.R. 3 C.P. 458, cited in "Phipson on Evidence", §1802.


13 The justification for this deviation from the idea that the court should have the best evidence available placed before it is that in most cases it will occur anyway because the litigant would not wish any adverse inferences to be drawn from his failure to produce the most reliable secondary evidence available.


14 See R. v. Daye, [1908] 2 K.B. 333


15 (1979), 47 C.C.C. (2d) 215 (BCSC).


16 J.D. Ewart, "Documentary Evidence in Canada" (1984), at 46-47.


17 [1970] S.C.R. 608.


18 (1990), 59 C.C.C. (3d) 92 (SCC).


19 (1992), 75 C.C.C. (3d) 257 (SCC).


20 (1993) 79 C.C.C. (3d) 257 (SCC).


21 Ibid., at 294.


22 See supra at fn. 1.


23 Supra, fn. 8.


24 Supra, fn. 1.


25 Ibid., at 507.


26 Supra, fn. 3.


27 Supra, fn. 4.


28 There are three other limitations on the scope of the business records exception established under s. 30(1). First, the introductory words of the subsection provide that the record so made will only be admissible "Where oral evidence in respect of a matter would be admissible in a legal proceeding . . . ." Literally this would appear to exclude "double hearsay", i.e.records made by someone who did not have personal knowledge of matter contained in the record; although the caselaw is not entirely clear on this. See Ewart, op. cit. supra, fn. 16, at 87-91. Second, the record must contain "information in respect of that matter". This appears to be nothing more than a statement that the record must be relevant to the issue. Third, s.30(10) provides that nothing in the section renders admissible in evidence certain specified types of records -- records made in the course of an investigation or inquiry, records made in the course of obtaining or giving legal advice, records in respect of the production of which a privilege exists and is claimed etc.


29 (1992), 97 Nfld & P.E.I.R. 144.


30 Ibid., at 148.


31 Supra, fn. 25.


32 The Association of Records Managers and Administrators (ARMA) maintained continuing pressure on the Department of Justice to have the documentary evidence provisions of Bill S-33, the federal version of the Uniform Evidence Act, re-introduced after it died on the Order Paper in 1983.


33 Ken Chasse, "Computer-Produced Records in Court Proceedings" (June, 1994), at 12. These conditions are based on what was required under the common law exception: see supra, at fn. 16.


34 Ibid., at 25-27.


35 All of these arguments were presented in debate before the Uniform Law Conference at the time the report of the Federal/Provincial Task Force on Uniform Rules of Evidence was being considered.


36 See Microfilm and Electronic Images as Documentary Evidence (1993), Canadian General Standards Board, Ottawa. The Introduction to the Standard states at ii:

". . . some guidelines on evidentiary requirements are included in the standard in order to assist organizations to comply with the business document provisions of the Evidence Acts.

"It is necessary, therefore that there be guidelines and procedures to enable an organization to demonstrate to a court, tribunal or inquiry, that it has a credible image management program capable of copying source records accurately, reliably and in a timely fashion

without loss of value. Therefore, unless otherwise prohibited by law, an organization's senior management can give authority to dispose of its paper source records and rely exclusively on its captured records in the conduct of every day business."


37 For a discussion of the problems with s. 31 see the Report of the Federal/Provincial Task Force on Uniform Rules of Evidence at 398-99.


38 This was done in the Uniform Evidence Act and Bill S-33.


39 See supra, fn. 21.


40 Supra, fn. 11, at 2.


41 See supra, "Background" section.


42 Supra, fn. 3.


43 It was primarily for this reason that it was not included in the definition of "original" found in the "Proposed Canada Evidence Act".


44 The "Proposed Canada Evidence Act" defines "original" with respect to a computer-produced record in the following terms: "(c) in relation to a record produced by a computer system, any printout or other intelligible output that accurately reproduces, whether in the same or a modified form, the data supplied to the computer system."


45 Law Reform Commission of Canada, "Report on Evidence" (1975), at 101. The Advisory Committee Note to Rule 1004 of the U.S. "Federal Rules of Evidence" states the same arguments. Recently the New Zealand Law Commission adopted this approach: see New Zealand Law Commission, Preliminary Paper No. 22, "Evidence Law: Documentary Evidence and Judicial Notice" (1994), at 58-58.


46 New Zealand Law Commission, Preliminary Paper No. 22, "Evidence Law: Documentary Evidence and Judicial Notice" (1994), at 58.


47 (1976), 30 C.C.C. (2d) 424, at 427, per Ritchie J. for the majority of the Court.


48 The Supreme Court of Canada held in Baron v. Canada, [1993] 1 S.C.R. 416, that the term "reasonable grounds" could not be usefully distinguished from "probable grounds", for "reasonableness" comprehends a requirement of probability.


49 This recommendation was made by the Federal/Provincial Task Force on Uniform Rules of Evidence. See the Task Force Report, supra, fn. 11, at 405.


50 See Ewart, loc. cit. supra, fn. 16, at 87-93.


51 See supra, fn. 11, at 393-94 and 404.


52 Supra, fn. 10.


53 See Ewart, op. cit. supra, fn. 16, at 93-94.


54 Op. cit. supra, fn. 11, at 397, 404 and 522.

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