Footnote: 1 Article 2838 presumes the reliability of the record where it is proved that the data entry is carried out systematically, without gaps and is protected against alterations. Such presumption is also made in favour of third parties who seek to admit the record if it is proved that the data entry were part of a business enterprise. Therefore, in some cases, the Quebec Civil Code provisions require the production of evidence relating to the reliability of the system which created the records.
Footnote: 2 The New Brunswick statute provides that a print-out of a document is admissible for all purposes, as is the original document, if it is proved that the original document is copied by a process of electronic imaging or similar process and is electronically stored in the course of an established practice to keep a permanent record of the document. Additionally, it must be proven that the original document no longer exists and that the print-out is a true copy of the original document.
Footnote: 3 The United Nations Model Law on Electronic Commerce provides (in Article 9(1)):
In any legal proceeding, nothing in the application of the rules of evidence shall apply so as to deny admissibility of a data message [i.e. an electronic record] in evidence:
(b)if it is the best evidence that the person adducing it could reasonably be expected to obtain, on the grounds that it is not in its original form.
In our view the Model Law's Article 9(1)(b) may require that someone who wants to use an electronic image will have to destroy the original and may have to demonstrate that this destruction was reasonable. This appears unnecessarily restrictive.
Footnote: 4 This recommendation applies only to the general rules of evidence. Other particular statutes may expressly or by implication require the production of an original record. Each jurisdiction should examine its own statutes and decide how to accommodate the policy behind the requirement for an original, to see if the present recommendation could apply. Article 8 of the United Nations Model Law on Electronic Commerce may be helpful.
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