Ch. 9: Electronic records and evidence ITSS Legal Issues Working Group 9/18/96 9-24 Chapter 9 Electronic Records and Evidence A. Is an electronic file a 'writing,' 'signature,' or a 'record' (e.g.: s. 33 Financial Administration Act)? 3 B. What rules govern time, place and authority of a party in an electronic contract? 7 C. Who can give evidence about computer records (the hearsay rule)? 10 D. Is a computer printout a "business" record? 12 E. Is a computer printout an "original" record or a copy? 13 F. How to establish the reliability of electronic records 15 G. Replacing paper records with electronic copies, migration from one electronic format to another 20 H. Summary 22 There are a variety of evidence issues that relate to electronic records. Historically, the courts have always preferred the oral testimony of witnesses to the presentation of information contained in documents. This is true even today, notwithstanding that litigation, particularly in civil matters, often proceeds with almost exclusive reliance upon documents. This simply reflects the predominance that recorded information now has in commercial activities. Notwithstanding, it is fundamental to our legal system that, to be admissible, any and all evidence must be relevant to the facts in issue. The other principal requirement is that a document which is intended to be introduced is what it purports to be. Thus, for a court to find a record should be admitted into evidence, the court must be convinced it is relevant to the dispute and is at least somewhat reliable for showing facts as they occurred. Authentication of the original document is fundamental to the admissibility of the original document. Authentication of the original document and comprehensive development of foundation evidence for the reliability of any copying or conversion process (photocopy, microform, electronically scanned image, etc.) are necessary for the admissibility of a converted form of the document. If there is no capability to authenticate the original document, no amount of reliability evidence with respect to the conversion process will serve to support credibility. Even if a court admits a record into evidence, opposing parties are free to dispute the reliability and relevance of the record, and the court can decide that a record is unreliable or relatively irrelevant. In addition to admissibility and reliability, there are issues relating to burdens and standards of proof and principles of interpretation. A burden of proof means who is required to prove the facts. This will normally be the plaintiff or the prosecution. However, assuming the plaintiff or prosecution do have some facts to support their arguments, the defence will want or need to produce some facts to support their arguments. Generally, the burden of proving a particular fact falls on the party that is trying to prove that fact. A standard of proof means how convinced does a judge (or jury) have to be about the facts being presented. Generally, there are two standards of proof: beyond a reasonable doubt (the standard for criminal prosecutions) or the balance of probabilities (the standard for civil proceedings). (Recall the discussion above that courts might exercise a more permissive standard for such in-house matters as delegation of financial authorities, and a stricter standard for contracts between arms- length parties.) Associated with the standards and burdens of proof are principles of interpretation. Generally, the more punitive a law is, the more narrowly the court will interpret its provisions, and therefore, the more persuasive the party will have to be in proving that its facts are true. This presumption of narrow construction applies to criminal prosecutions. Presumptions of narrow construction, burdens of proof and standards of proof are often more onerous on the government than on other parties. This is because the state has tremendous power to make the laws, to use force (such as expropriation, arrest or jail) to enforce the laws, and has tremendous resources for investigating and litigating offences. Thus, it frequently happens that the Crown is required to carry a greater burden of proof and meet higher standards of proof than other parties. These are important factors to consider when relying on electronic records as proof. All relevant evidence must exhibit two characteristics. First, a document must be accepted by the court as being authentic. That is, it must not be counterfeit or have been altered in any way. In addition to the document's authenticity, the statements or information contained in the document, which are tendered in evidence as proof of the truth of what is asserted or recorded in the document, must be capable of being accurately and independently tested. Where computer-produced evidence takes the form of a printout, it is considered documentary evidence. A party tendering a printout as evidence must satisfy the same statutory or common law rules pertaining to documentary evidence, as would have to be satisfied if the document were of a more traditional nature. However, computer-generated evidence has evolved to the extent that concepts such as "original," "record" and "copy" are challenged. Problems of authentication become more difficult to resolve. This Chapter deals with how courts might apply rules of evidence to records or documents in electronic form or, stated otherwise, to information recorded on a variety of media, such as microfilm, optical images, or on computer hard drive or computer print-out. The rules of evidence are found in two sources: statute law and the common law. The common law has been dealing with evidence questions since time immemorial and has displayed remarkable flexibility. The statute law is essentially a codification of common law principles, although the nature of statute law is that it is inherently less flexible than the common law: it is limited to the interpretation of the words on the page. There are a variety of issues that need to be understood with respect to electronic evidence: admissibility of business records generally, whether a record is a "business" record, whether a computer print-out is a "record," is an original or a copy and the effect of the destruction of original records, the evidence needed to demonstrate the reliability of electronic evidence, the application of the hearsay and opinion rules, and exclusions of certain kinds of records. All of these issues involve a consideration of the provisions of the Canada Evidence Act1 and the related case law. A. Is an electronic file a 'writing,' 'signature' or a 'record' (e.g.: s. 33 Financial Administration Act)? In cases of dispute, proving the origin of a message provides evidence as to what actually happened in the disputed circumstances. Proving the origin of a message often means demonstrating that a given message is authentic and not a forgery. In addition, the law may require that there be a way to authenticate a person's intention to enter into certain binding agreements before the law will enforce that agreement. The most common form of authentication required by law is a manual or handwritten signature. The Government Policy on Electronic Authorization and Authentication states in part: All financial transactions must be properly authorized, validated and safeguarded against loss, alteration, substitution or destruction. The integrity and confidentiality of the electronic authorization and authentication system and processes must be maintained at all times. Electronic authorizations of financial transactions must be authenticated. The authentication process must effectively and positively identify the authorizer, in such a way that he or she will not be able to credibly deny having authorized a transaction. As discussed below, the various requirements of this policy are more onerous than the law requires, and failure to comply with the policy will not make transactions with innocent third parties void or unenforceable. It would be a mistake to assume that courts will reject electronic forms of signatures because they are electronic, that they will require that only the most secure forms of electronic signatures be used, or that electronic signatures using strong secure technologies are nonetheless somehow inferior to hand- written signatures. It should be noted that hand-written signatures on paper can be forged. The person relying on the document often has neither the names or the persons authorized to sign nor specimen signatures available for comparison. Even where a specimen of the authorized signature is available for comparison, only an expert may be able to detect a careful forgery. Where large numbers of documents are processed, signatures are often not compared with specimen signatures when they are available, except for the most important transactions. Paper documents can be lost or destroyed. Even where there is an original hand-written signature, the contract can still be repudiated or declared void for a variety of reasons relating to the law of contract (discussed below). Thus, hand-written signatures do not by themselves create binding, enforceable agreements. It is also important to remember that where there are no specific legal requirements governing the authentication of a transaction, the parties to that transaction are free to agree between themselves what kind of authentication will be sufficient for their purposes. Further, there can be binding oral contracts, unless a law requires a writing or signature. Where a law does not require a writing or signature, then authentication merely provides evidence of a contract. The existence of the contract can be proven in other ways as well. Nonetheless, the legal requirements of a signature or other paper-based method of authentication is often perceived as an obstacle to the use of electronic technologies. Efforts are being made at all levels of governments in Canada to eliminate mandatory requirements for handwritten signatures in their legislation. Similar efforts are being made in a number of other countries. In spite of such efforts, the most common form of authentication required by national laws remains a signature, which is commonly understood to mean the manual writing by an individual of his or her name or initials. Such an interpretation of 'signature' is not necessarily supported by the actual words used to define 'signature' in legislation. The word "writing" appears in the Statutes of Canada more than 1,600 times and if defined five times. Two of those definitions are in statutes that apply to other statutes: the Interpretation Act and the Criminal Code. The word 'record' appears approximately 800 times and is defined ten times, including definitions in three laws of general application, the Access to Information Act, National Archives Act and Canada Evidence Act (but not in the Interpretation Act or the Criminal Code). The word 'document' appears more than 900 times and is defined three times, one of which is found in the Criminal Code. 'Data' appears approximately 150 times and is defined twice, one of which is in the Criminal Code. The words "signature," 'to sign," and "by signing" occur 465 times are not defined once.2 The main issue to be determined is whether writing, signature, record, document or data must be on paper. (For specific wording of the various definitions, please see Annex F.) Among the various requirements for documents to be in writing is the federal Financial Administration Act and provincial Sale of Goods Acts and Statutes of Frauds. For example, subsection 33(1) of the Financial Administration Act provides that "No charge shall be made against an appropriation except on the requisition of the appropriate Minister of the department for which the appropriation was made or of a person authorized in writing by that Minister." The definition of 'writing' in the federal Interpretation Acts includes words "represented or reproduced by any mode ... in visible form." The Criminal Code defines "writing" as including "a document of any kind and any mode in which ... words or figures ... are written, printed or otherwise expressed ..." The National Archives Act and Access to Information Act define "record" as including any "machine readable record, and any other documentary material, regardless of physical form or characteristics, and any copy thereof." The Canada Evidence Act defines "record" as any part of any ... document ... or other thing on or in which information is written, recorded, store or reproduced ..." The Criminal Code defines "document" as including any "material on which is recorded or marked anything that is capable of being read or understood by a person, computer system or other device ..." These definitions would suggest that a message does not have to be on paper in order for it to be a 'writing' for statutory purposes. This interpretation is supported by provisions in the 1994 Quebec Civil Code: 2837. Where the data respecting a juridical act are entered on a computer system, the document reproducing them makes proof of the content of the act if it is intelligible and if its reliability is sufficiently guaranteed. To assess the quality of the document, the court shall take into account the circumstances under which the data were entered and the document was reproduced. 2838. The reliability of the entry of the data of a juridical act on a computer system is presumed to be sufficiently guaranteed where it is carried out systematically and without gaps and the computerized data are protected against alterations. The same presumption is made in favour of third persons where the data were entered into by an enterprise. Many cases3 indicate the willingness of the courts to adapt to new technology, such as telexes, faxes and computer records, regardless of statutory requirements. Authentication can even be shown by a printed name, letterhead or initials, depending on the the purpose of the message or document. Legal systems increasingly permit the required signatures of some or all documents to be made by stamps, symbols, facsimie, perforation or by other mechanical or electronic means. This trend is most evident in the law governing transport of goods, where all the recent principal international conventions that require a signature on the transport document permit that signature to be made in some way other than by manual signature. A good example of the courts' willingness to adapt to new technology is Beatty v. First Explor. Fund 1987 & Co. (1988), 25 B.C.L.R. (2d) 377 (B.C.S.C.), where the court found that a faxed document containing the reproduction of a signature satisfied the requirement pertaining to proxies for shareholder voting that they be written and signed. In coming to that conclusion, the court stated, at p. 383, that "the law has endeavored to take cognizance of, and to be receptive to, technological advances in the means of communication," and relied on cases going back to the 19th century that upheld the validity of proxies communicated by telegram and telegraph. Grayton has written that The case law clearly states that a signature need not be the party's entire name, or neatly written, as long as it is the party's actual identifiable mark adopted by the party with the intention of authenticating the document and he cites an American case that held that for a symbol to be a legal signature, it must be 'susceptible of evidential connection to the signatory.'4 Given the courts' willingness to adapt to new technologies, it can be concluded that the law will not require a specific degree of security, such as requiring encrypted signatures rather than swipe card signatures, or requiring encryption keys that 1024 bits long rather than 512 bits long. Courts will look at the overall context of the relationship, the state of the technology at the time the dispute arose, the general industry practice and the procedures in place between the parties in deciding whether an electronic signature will provide sufficient evidence of the transaction to be enforceable. It may be that the courts will be less demanding with respect to what constitutes a 'signature,' 'writing' or 'record' when the transaction in question is an internal delegation of financial signing authority. The 'indoor management' rule will apply to delegations such that if a Crown employee signs a contract without proper delegated authority, that signature would be considered valid. In addition, the courts have tended to give the Crown fairly broad ability to delegate signature making to subordinate officials.5 Nonetheless, despite the view that unsecured electronic mail would be considered a writing for the purposes of s. 33 of the Financial Administration Act, a legislative amendment could remove any uncertainty, and in any event, saving the electronic delegation or even printing the message would be a prudent way to ensure the evidentiary trail of the delegation. To summarize, the level of reliability that the courts will require and that the parties will want will depend on the importance and purpose of the message or document, the intended use of of the information in the message or document, the nature or degree of risk or opportunity for fraud, and the physical security of the information management system. The decision as to the strength of security to apply to particular electronic signatures should involve a cost-benefit analysis: the costs of some secure technologies may not be justified for certain kinds of transactions, and may not be legally required. Despite broad definitions of 'writing,' 'record,' etc. and the courts' willingness to adapt to new technology, there is disagreement among legal experts as to whether electronic commerce satisfies the statutory requirements for documents to be in writing and to be signed. One reason for this disagreement is that the main issue is not what is or is not a 'writing,' the main issue is the purpose for the statutory requirement of a writing, which is presumably to create some tangible form of evidence with some degree of permanence. One might argue that computer records, even electronic mail, are not intrinsically "ephemeral": they can be permanent if a party wishes them to be. It is the user who decides to destroy either a paper record or a computer record. Further, where the electronic message leaves an audit trail that can be produced in court, so long as that audit trail is reliable, the electronic message may have succeeded in providing the permanency intended by the requirement for a signature. Nonetheless, legislative amendment can eliminate any doubt that might exist that electronic messages are acceptable forms of 'signature' and 'writing.' B. What rules govern time, place and authority of a party in an electronic contract? The law of contract does not change depending on whether the medium of the contract is electronic or paper-based. This section will review the general requirements of the law of contract, making an occasional reference to the specific context of electronic medium where the medium might have a special relevance. All contracts are based on a consensus of one kind or another. The essence of a contract is "agreement," that is, "consensus ad idem." Not all agreements are legally enforceable. There will not be an enforceable contract where it can be proved that one person was completely mistaken as to the nature of the contract, such that the two parties never did have a consensus, even if both parties signed a reasonably clear document that would otherwise suggest the parties did agree on the terms of the contract. In addition, a person cannot come under a contractual obligation unless he voluntarily agrees to be placed under one (for example, the defence of duress). For a contract to be legally enforceable, there must be: · mutual intent to enter legal relations; · unconditional acceptance of an offer; · reasonably precise set of terms; · between two or more competent parties; · supported by mutual consideration; · agreeing to do some legal act voluntarily. All of these requirements apply to electronic contracts. However, the electronic medium will usually only raise specific issues for a few of these requirements. Time the contract is formed The general rule is that acceptance of an offer is binding only when the communication of the acceptance is received by the offeror. This is known as the "reception" theory of acceptance. The manner by which an acceptance must be communicated or received may be stipulated by the offeror in the offer, and then acceptance by any other manner will not be sufficient unless, perhaps, when an alternate method does not prejudice the offeror. An exception to the general rule that acceptance is binding when it is received is the postal acceptance rule: when an offer is made by mail, the contract is binding upon the mailing of an acceptance, whether or not it is in fact ever received. This is so because by mailing the offer, an offeror is deemed to make the post office his agent, so that delivery of acceptance to the post office amounts to receipt by the offeror, since the post office is his agent. In order to protect against the potential harsh application of the postal rule, an offeror can stipulate that acceptance must actually reach him. It is unlikely that the postal acceptance rule will be applied to "real-time" electronic contracts. If it were to apply, the argument might be as follows: when A sends an electronic offer to B, A is designating the telecommunications carrier as an agent. If B sends an electronic reply, if that reply delayed, damaged or lost during transmission, it may be that the courts would find a binding contract in any event, on the theory that A had designated the telecommunications service provider as his or her agent. However, it is more likely that the "instaneous communication" rule will apply to the contract. That is, the contract is made when acceptance is received by or communicated to the offeror. Whose law governs the contract? If ever there arises a dispute about a contract, it will be important to know which law applies to the contract. A good contract will specify this expressly, but some contracts do not. The general rule for deciding which law governs a contract is which jurisdiction has the closest and most real connection with the contract. The place where the contract was originally made is only one factor to consider, although it is an important factor. A contract made by means of instantaneous communication will probably be under the jurisdiction of the place where the offeror received notice of the acceptance. Where the postal acceptance rule applies, the place where the acceptance is mailed or given to a courier will likely determine which law governs the contract. The use of Value Added Networks ("VANs") can complicate mattters, since an acceptance may be received by the VAN and held in its mailbox for retrieval by the recipient. It is possible that courts may be convinced that the acceptance would take place when and where the acceptance was received by the VAN. This would be analogous to acceptance by telegram where the message is first communicated to the telegram service for later transmittal to the ultimate recipient. Once the service has recieved the telegram, acceptance is deemed to have been communicated to the ultimate recipient. In electronic commercial transactions, the time of acceptance would be the time the electronic acceptance was received by the VAN on the offeror's behalf, and the place of acceptance would be the location of the VAN or mailbox which first recieved the communication. To avoid uncertainty and undesirable results, trading partner agreements and standard notices of offer or acceptance should identify where and when contracts are deemed to be formed as well as the jurisidiction whose laws will govern. Authority of contracting party to enter into a contract Digital signatures and public key certification offer technical opportunities to provide assurance that a party is authorized to enter into a contract. The rules which govern authority and capacity of contracting parties to enter into contracts are not altered by the replacement of paper by electronic media. An otherwise valid contract may be defeated by the lack of contractual capacity of one of the contracting parties. The law presumes that everyone has the capacity to contract; however under Canadian law infants and mentally disordered persons may lack contractual capacity. As well, the capacity of a corporation to contract is subject to the doctrine of "ultra vires" (i.e. the contract is beyond the powers of the corporation). The electronic medium used by the government to issue instruments of delegation or used by other parties to authorize officers to create binding legal relations does not alter the legal principles or rules pertaining to delegated power, indoor management or ostensible authority. The general rule is that if A represents B, or if B has limited A's powers, and A contracts with C, then C will be able to enforce the contract against B, even though A may have acted contrary to the limitations B imposed on A. In other words, an innocent third party, with no notice and no reason to believe that A's powers were limited, will not be victimized because A broke the rules set down by B. Canada (that is, the Crown, or Her Majesty the Queen in right of Canada) is a legal person with the capacity to enter into contracts. Apart from capacity to form or create a contract, the capacity of the Crown, in the sense of its powers under a contract, may be restricted by reason of statutory law, Crown prerogative and other constitutional principles. The Crown enters into contracts through its employees, whose authority or capacity to bind the Crown may be limited. If a federal employee with apparent authority signs a contract with a third party, the third party will be able to enforce that contract against Canada, whether or not the employee in fact had the actual power necessary to enter into the contract. The same is true of other organizations. Thus, while it may be desirable, it is not strictly necessary for a digital signature or public key certificate to prove that the individual who sends a message (such as an offer or acceptance) has the appropriate internal authorizations to send that message. C. Who can give evidence about computer records (the hearsay rule)? One of the main rules of evidence is the "hearsay" rule. The basic principle is that if a person does not have personal knowledge of a fact, but instead their evidence comes from what someone else (or a computer) told them (either verbally or in writing), then their evidence is not the best available evidence (the person with direct knowledge would give the best evidence), the opposing party is deprived of an opportunity to ask questions of the person with direct knowledge and the evidence may not be reliable. In virtually all situations, computer printouts contain information of which the person entering the data in the computer has no personal knowledge and will thus involve hearsay. Computer records have been admitted into evidence even they were not recorded by a person with personal knowledge of the matter. Section 30 of the Canada Evidence Act provides for the admissibility of business records (which are discussed later in this Chapter). There are also exceptions to the hearsay rule for banking records and for public and government records.6 The Quebec Civil Code permits the introduction of business records, without requiring personal knowledge of the maker, and provides that computer records made in the ordinary course of business are presumed admissible if made systematically, without delay, and are protected against alteration.7 Judicial decisions have accepted the proposition that hearsay is admissible under section 30.8 In Ares v. Venner,9 the Supreme Court of Canada established the common law business duty exception to the rule against hearsay, which admits into court records made by someone with personal knowledge of the matter and having a duty to make the record. Hearsay evidence has tended to be admitted where it can be shown to be both reasonably necessary and reliable, 10 and it for this reason that business records, which usually constitute hearsay evidence, are admitted into court. Another basic rule of evidence is that opinions are not allowed as evidence; what the court needs are facts. Opinions are permitted from experts, whose credentials are established in court and who normally give their evidence orally, to provide an opportunity for cross-examination. For computer records, it may be necessary to express opinions about the operation of the system. It is generally contended that subsection 30(1) of the Canada Evidence Act, which permits "evidence in respect of that matter," is worded broadly enough as to admit written statements of opinion.11 While the maker of a record may appear to speak to the records in person, it is not necessary that the maker appear. However, the records should be entered into evidence through the evidence of a witness having custody of the records who can identify them as records made by the business in the usual and ordinary course of business and who can describe the usual and ordinary course of business under which they were made.12 In R. v. Grimba & Wilder (1977), 38 C.C.C. (2d) 469 (Ont. Co. Ct.), the defence counsel argued that the foundation witness (Mr. Harper) should not be permitted to testify because he was neither the maker of the documents nor had he original knowledge of their contents. However, Callaghan, Co. Ct. J. (as he then was) ruled that: It goes without saying that Mr. Harper of course has no knowledge of the making of the documents, but in my view, it was intended that any person in an official position such as he, with an agency that maintains a record of such documents in the ordinary course of its business, would have the knowledge of the contents of the documents based on his experience in that business, which is required by s.s. (9). (at p. 473) Effective witnesses can help establish the reliability of such records,13 but witnesses can also have the opposite effect. In R. v. Sheppard (1992), 97 Nfld. & P.E.I.R. 145 (Nfld. S.C.T.D.), for example, the Crown sought to introduce computer printouts of telephone numbers and dates of telephone conversations upon the ground that the information in the records was obtained by a computer in the ordinary course of the company's business. The Court ruled that subsection 30(1): ... carries the necessary implication that such a record will be admitted when the judge has examined it and has exercised his discretion to accept it as being an authentic record of its contents made in the ordinary course of the company's business... In this case, the trial judge was not satisfied that the complainant had established a proper degree of reliability of the printouts as records made in the ordinary course of the company's business. In R. v. Rowbotham (1977), 33 C.C.C. (2d) 411 (Gen. Sess. of the Peace), the Crown sought to introduce through a telephone company employee, telephone bills printed by the computer. The Crown failed to establish a proper foundation since the witness was unable to explain to the court where the documents came from, how they were prepared, where the information came from that was set out in them, the billing procedures of the company and so on.14 The records would seem to be admissible without the need of a witness to produce them. The whole object of section 30 is to avoid the calling of the maker of the record and this purpose would be defeated if it was necessary to call the maker in order as to adduce the record. However, it may be desirable in the interest of authenticity and continuity to call the person or official in the business having custody who can describe the usual and ordinary course of business and how they were made and recorded. Even if a record is admitted, subsection 30(9) provides that with leave of the court any person who has or may reasonably be expected to have knowledge of the making or contents of any record may be examined or cross-examined. This contemplates a discretion which should be exercised in favour of such examination or cross-examination when the record concerns a vital issue and where there is some attack on its probative value. Whether submitting evidence by affidavit or orally, the Crown must always strive to use the witness best placed to give evidence about the reliability of the records and the business practices associated with making the records. D. Is a computer printout a "business" record? The Canada Evidence Act provides at subsection 30(1) for the admissibility of records made in the usual and ordinary course of business. Section 30 has been described as providing "an optional code of procedure which, if followed, permits the introduction of certain business records as proof of the facts therein without oral evidence being required."15 Since section 30 is an exception to the general rules of admissibility, strict compliance with its various provisions is necessary for such evidence to be admitted.16 However, section 30 of the Canada Evidence Act is neither mandatory nor exclusive and it open to a court to admit business records under the common law exception to the hearsay rule even though such evidence may not meet the requirements of section 30. Further, it is open to a court to modify the common law criteria.17 The basic approach of subsection 30(1) is to make admissible all records made in the use and ordinary course of business of virtually any activity. The evidence must refer to a matter in respect of which oral evidence would be admissible. As well, other requirements must be met. Subsection 30(10) lists of certain kinds of business records that are not admissible under the "business records" provision;18 notice requirements in subsection 30(7) must be respected; subsection 30(6) gives the court the power to assess the probative value of the evidence and to exclude it; and subsection 30(9) provides that "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 section 30 may, with leave of the court, be examined or cross- examined thereon by any party to the legal proceeding." Not every record is a record made in the usual and ordinary course of business. Generally, however, government activities fit within the definition of "business" in s. 30(12) and most records would be considered as having been made in the usual and ordinary course of business. In R. v. Mahoney (1986), 47 Alta. L.R. (2d) 185) (C.A.), it appears the court would have accepted a computer printout containing the criminal record of the appellant, except that the notice required under s. 30(7) was not provided. It was submitted by the Crown that the printout was an original record similar to business documents or bank records. But for the absence of notice provided by the Crown as required by subsection 30(7), it appears that these documents would have been admissible as original business records under subsection 30(1) of the Canada Evidence Act. The preponderance of authority is to admit computer printouts as business records.19 This is true even if the record in question was not made as part of the usual course of business, so long as it concerns a matter in the ordinary and usual course of business, it is likely to be admitted into evidence.20 We discuss below some of the factors a court considers when considering the admissibility of business records. E. Is a computer printout an "original" record or a copy? The basic rule is that courts want the best available evidence. If an original record exists, it will be considered better evidence than a copy. However, in some cases, the courts will accept copies when it is convinced that doing so is reliable. The reason it can be important to establish whether a record is an original or a copy is that if it is a copy, a court can ask for or require the original, under the best evidence principle, and can refuse to accept the copy. In addition, getting a court to accept a copy under the Canada Evidence Act requires an affidavit setting out the reasons why it is not possible or reasonably practicable to produce the original 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. In determining what is an original and what is a copy, there are no specific criteria in the Canada Evidence Act that deal specifically with computer evidence. Although the case law is far from settled, it is likely that a computer-generated record would be found to be an original record. The Canada Evidence Act defines "record" in s. 30(12): "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). Subsection 30(1) provides for the admissibility of a "record made in the usual and ordinary course of business" (an "original"), while subsection 30(3) provides for the admissibility of a "copy" of a record made in the usual and ordinary course of business "where it is not possible or reasonably practicable to produce" the original. Much of the discussion of computer records to date, however, has taken place in the context of s. 29 of the Canada Evidence Act, which deals with bank records. Section 29 cases are distinguishable from section 30 cases, but they provide useful background information to consider. In R. v. Bell (1982), 26 C.R. (3d) 336 (Ont. C.A.), affd. 1985 2 S.C.R. 287, the Ontario Court of Appeal set out the following propositions with respect to a "record kept in any financial institution": 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 part of its internal audit system and, at the relevant time, must be kept for that purpose. The Court also determined that it was possible to have more than one record at any one time. The Court concluded that: the information in the computer changed its form, and that the bank's copy of the monthly statement then became the 'record'. It was the only source of reference available to the bank as to the state of the bank account, saving the possibility of compiling a new statement by searching out the original deposit slips, cheques, etc. It was permanent, for it was to be retained by the bank for 15 years. It clearly was a record kept in a financial institution. There is no reason why a bank may not have a 'record' in two or more different forms, just as it might have a duplicate set of books. (p. 340) The Alberta Court of Appeal, applying the decision in Bell, has also held that a computer printout of a bank statement was a "record kept in a financial institution" within the meaning of s. 29 of the Act.21 The Ontario Court of Appeal, in its 1982 decision in Bell, by accepting a computer printout as a record (and therefore as an original) had to distinguish that case with a case it decided in 1979, R. v. McMullen,22 which did not accept a computer printout as an original. The Court in Bell distinguished the McMullen decision, which was, in its opinion, contingent on the existence of the original records. The Court observed that: R. v. McMullen was a stated case, and that decision must be read in light of the facts stated, and the questions asked. It is clear to me that both Linden J. and this Court proceeded on the factual basis that the information on the computer print-out in that case continued to be "stored" in a computer. At p. 69 of 42 C.C.C. (2d) Linden J. speaks of a computer print-out as a "copy of what is contained within that computer". (p. 339) This seems to suggest that a computer printout will be treated as an original record, unless, for some reason, it is essential to the case that the original record be found. Only one subsequent case explicitly adopted this distinction. In Biasi et al, R. v. Biais et al. (1981), 62 C.C.C. (2d) 304 (B.C.S.C.), the Court admitted photocopies of telephone records as "business records" where the originals were destroyed and the photocopies were, in fact, used by the company as records. A computer-generated printout produced by an employee of the telephone company showing calls to and from a particular telephone has been accepted as a "record" within the meaning of this section and not merely a copy of the record.23 Despite the tendency to admitting computer printouts as original business records, there are two cases involving government printouts which did not do so. The court in R. v. Hanlon (1985), 69 N.S.R. (2d) 266 (Co.Ct.), in applying section 28 of the Canada Evidence Act, concluded that a computer printout of records kept in the Department of Fisheries was not an original record, but was a copy of the original record. In Marakis v. Min. of National Revenue (1986), 86 D.T.C. 1237 (T.C.C.), the court refused to admit computer records of income tax returns, where the originals were no longer in existence, on the basis that they were unreliable hearsay. They were not admissible as proof of the contents of the tax returns. In this case, no proof was provided that the information on the computer contained identical information to that contained in the income tax returns. These cases make it difficult to say with certainty how a court will deal with government electronic evidence in the future. Despite the results in Hanlon and Marakis, one may presume that if an original record no longer exists, a court will probably determine that the computer "copy" constitutes a "record" within the meaning of s. 30 of the Canada Evidence Act. If the original is still in existence, a court would likely consider the extent to which the computerized record is used as a source of reference in the ordinary course of business when deciding whether or not to accept it as an original record. Legislative amendment might be necessary to remove the uncertainty as to whether a computer record is an original or a copy. Even if a court finds a computer record is not an original, but instead is a "copy" of the record, then subsection 30(3) would apply, accepting the copy so long as it is 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. The Quebec Civil Code also permits copies to be admitted where the original cannot be produced.24 To be able to attest to the authenticity of a copy of a record would probably involve proving the reliability of the copy of the record (how to prove reliability is discussed later in this Chapter). F. How to establish the reliability of electronic records Even assuming computer printouts are generally admissible as business records and evidence about them can be given by someone other than the maker of the record, it is still necessary to convince the courts that the record is reliable. As Ewart has observed in Documentary Evidence in Canada:25 The discretion to admit hearsay records into evidence ... given to Canadian courts is not entirely unstructured. As Wigmore Wigmore on Evidence so carefully shows, most of the exceptions to the hearsay rule which have been created over several centuries can be found to have been constructed on two fundamental principles: necessity, and a circumstantial guarantee of trustworthiness. Of these two fundamental standards, the second is by far the more compelling: a court can feel relatively comfortable in breaking new ground if it has been satisfied that the circumstances of the document's creation provide an adequate substitute for the traditional safeguard of cross-examination. The proponent of a document should seek to persuade the court that the document, because of the circumstances of its creation, is inherently reliable. If this is done, then the necessity doctrine can likely be satisfied by demonstrating that there is no other equally convenient way to put before the court the information in question. In R. v. Monkhouse (1987), 61 C.R. (3d) 343, the Alberta Court of Appeal set out the following criteria for admissibility under the modified common law exception. The record must: · be an original entry; · be made contemporaneously with the occurrence of the event; · be made as part of a routine; · relate to the conduct of the business; · be made by a recorder who has a duty to make the record; and · be made by a recorder who has no motive to misrepresent. The Alberta Court of Appeal, in Monkhouse, slightly modified the common law rule in one respect: The 'original entry' need not have been made personally by a recorder with knowledge of the thing recorded ... It is sufficient if the recorder is functioning in the usual and ordinary course of a system in effect for the preparation of business records... Modern business records are customarily a compilation of original documents ... and rarely would that compilation be made by the person who prepared the original document. Yet those records are daily accepted as valid daily by all those affected by them. Where an established system in a business or other organization produces records which are regarded as reliable and customarily accepted by those affected by them, they should be admitted as prima facie evidence. (at pp. 350-51) Despite the six conditions described above in Monkhouse, the only major condition of admissibility under the section 30 of the Canada Evidence Act is that a document must have been made in the "usual and ordinary course of business." Nonetheless, courts may look for foundation evidence in support of the admissibility and the weight to be given to evidence submitted pursuant to section 30. Subsection 30(6) of the Canada Evidence Act pertains both to the admissibility and weight of the evidence.26 The subsection reads as follows: For the purpose of determining whether any provision of this section applies, or for determining the probative value, if any, to be given to information contained in any record admitted in 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 inferences from the form or content of the record.27 Barry, J. noted in R. v. Sheppard (1992), 97 Nfld. & P.E.I.R. 144 (Nfld. S.C.) at p. 148: ... I am satisfied that s. 30(1) does not preauthorize the admission in evidence of every record made in the ordinary course of business. 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 has exercised his discretion to accept it as being an authentic record of its contents made in the ordinary course of business. Therefore, not only must the record-keeping system envisaged by the government be reliable and trustworthy, but foundation evidence should be available to demonstrate that the records generated by such a system are reliable, credible and trustworthy. Despite the absence of conditions for admissibility set out in the Act, case law suggests a number of principles of proof to prove the integrity of the who record-keeping or information- management process, namely, proof: 1. of the sources of the data and information recorded in the data bases upon which the record is based; 2. that the data and information in those databases was recorded in some fashion contemporaneously with, or within a reasonable time after, the events to which such data and information relates; 3. that the data and information upon which the record is based is of a type that is regularly supplied to the computer during the regular activities of the organization from which the record comes; 4. by certification that use in the court proceedings of the data and information upon which the statements in the record are based does not violate any legal principle of privileged or confidential data and information preventing its disclosure; 5. that entries into the databases upon which the record is based were made in the regular course of business; 6. that the input procedures in adding to those databases conform to standard practices in the industry involved; 7. that one has depended on that same information to run one's business; 8. that the computer programs used to produce the printout, reliably and accurately process the data and information in the databases involved; 9. that records have been kept by a responsible person in charge of alterations to the system; and 10. of the security features used to guarantee the integrity of the total information or record-keeping system upon which the printout is based.28 Proving the reliability of electronic information is made easier if the following are in place: · a good description of the information management system (prepared for the purpose of running the system, not for the purpose of contemplated litigation), showing responsibilities, procedures, and audit checks and schedules; · access controls (including firewalls); · segregation of duties; · encryption; · digital signature, including hashing; and · public key certificates. Some courts have accepted the reliability of computers without stipulating any preconditions to the admissibility of their printouts under section 30.29 In R. v. Vanlerghe (1978), 6 C.R. (3d) (B.C.C.A.), Bull, J.A. stated that: [Section 30] clearly covers mechanical as well as manual book-keeping records and the keeping of records, and the flow-out or printout of that book-keeping system clearly falls within the meaning of 'records' in s. 30 and was therefore admissible. (at 224) The courts may feel inclined to respect systems put in place by government. For example, in the Sunila case, involving aerial surveillance by the Department of National Defence, data from the aircraft's detection equipment was fed into a computer and the data was then extracted on a tamper-proof cassette. The Crown sought to introduce a computer printout of this data which had been recorded on the cassette. In this case, the Court made the following conclusion: ... the air surveillance data was collected mechanically by radar and by computer; and for this Court to question the integrity of the air force in the exercise of its duty in this instance is unfounded. Computer print-outs are admissible as prima facie proof of the matters contained therein and defence counsel may still challenge the accuracy of the record. This attitude is not necessarily guaranteed. See, for example, Hanlon and Marakis, discussed in the previous section. Another example of a cautious approach to the reliability of computer records was given by the Ontario Court of Appeal in R. v. McMullen (1979), 47 C.C.C. (2d) 499. Linden, J.A.: I accept that the demonstration of reliability of computer evidence is a more complex process than proving the reliability of written records. I further accept, as a matter of principle, a Court should carefully scrutinize the foundation put before it to support a finding of reliability, as a condition for admissibility (see McCormick's Handbook on the Law of Evidence, 2nd ed. (1972), p. 734) ...The nature and quality of the evidence put before the Court has to reflect the facts of the computer record- keeping process -- in the case of computer records, the procedures and processes relating to the input of the entries, storage of information, and its retrieval and presentation (at p. 506). It has been observed that proof "that the data and information in those databases was recorded in some fashion contemporaneously with, or within a reasonable time after, the events to which such data and information relates" is an important consideration.30 At the same time, it has also been argued by the same author that section 30 of the Canada Evidence Act is capable of the interpretation that no contemporaneity is required, "especially if such is not within the ordinary course of business whose documents are being adduced.31 Although the Canada Evidence Act does not contain an express temporal provision, subsection 30(6) provides that the court may examine "the circumstances in which the information contained in the record was written, recorded, stored or reproduced and draw any reasonable inferences from the form or content of the record". In the case of Setak Computer Services Corp. Ltd. v. Burrough's Business Machines (1977), 76 D.L.R. (3d) 641 (Ont. H.C.J.), which examined the issue of contemporaneity in the context of section 35 of the Ontario Evidence Act R.S.O. 1990, c. E-23, it was emphasized that: A substantial factor in the reliability of any system of records is the promptness with which transactions are recorded. Unless it appears from the context of the record, or the testimony of the witness introducing the writings or records into evidence, that the act, transaction, occurrence or event described therein occurred within a reasonable time before the making of the writing or record, then such writing or record should not be admitted for the purpose of proving those matters. Where there is evidence of some delay in transcribing, then in each case, it would seem to me, the Court must decide, as a matter of fact, whether the time span between the transaction and the recording thereof was so great as to suggest the danger of inaccuracy by lapse of memory (at p. 651). It should be noted that the trustworthiness required by the exception to the hearsay rules does not demand that the Court be absolutely convinced that the evidence was totally devoid of human error.32 Aside from the questions relating to proof of reliablity of electronic writings and records, parties can take steps to create a presumption that their electronic records are to be relied upon by the courts and to resolve any uncertainty with regard to writing and signing requirements. These steps include: · negotiated trading partner agreements, where practical; · master sales agreements, the terms and conditions of which may be incorporated by reference in subsequent electronic communications, thereby giving a paper foundation to an electronic relationship; · statutory amendment or regulations, such as the Public Works and Government Services' Standard Terms and Conditions, setting out standard terms and conditions which can be incorporated by reference into electronic messages, and can prescribe definitions for writings and signings. Federal regulations of this kind can override the provincial contract laws in relation to federal government contracting activities; · implementation of proper security controls, so as to provide at least the functional equivalents of paper writings and signings. G. Replacing paper records with electronic copies, migration from one electronic format to another Even if one believes that the courts will generally accept computer printouts as evidence, either as originals or copies, it would be unwise to assume this will occur in every case (see McMullen, Hanlon and Marakis, above). The difficulty is that it is impossible to know what set of facts might lead a court to refuse to accept computer evidence. Moreover, deciding whether or not to destroy paper records in favour of keeping them in electronic format requires other considerations, not just their admissibility in court. Those other considerations include complying with the National Archives Act, Access to Information Act, Privacy Act and other statutory provisions concerning the preservation of records. Perhaps more importantly, the main consideration needs to be confidence in the technology to preserve the records and keep them available for the period of time required for archives and access purposes, as well as for business needs. Recall the quotation above from the Ontario Court of Appeal in Bell: "It was permanent, for it was to be retained by the bank for 15 years." In government, 15 years is not "permanent." The problems with preserving digital information over a long- term were discussed in Chapter 1. As pointed out in that Chapter, keeping electronic information available for a long time is very difficult, due to technologies that rapidly become obsolete and physical breakdown of storage media. Long-term retention of information requires frequent conversions from one technology to another. One break in the chain of conversions and the information is lost forever. As electronic records are transferred from one format to another to avoid the discontinuity problem, an important question will be what kind of evidence will be required concerning the conversion process. We know that in criminal prosecutions, courts can and often do require testimony on how specific pieces of evidence have been handled from the moment the pieces of evidence were found. Every time a piece of evidence moved from one person or one container or one laboratory to another, evidence may be required about that transfer and the handling of the evidence at that time. The same principle could conceivably apply to electronic data conversions. However, it is more likely that the courts will be less demanding. If applicable, the courts would likely use the same tests for converted electronic information as they do for original business records (i.e., if the business relies on those records in the ordinary course of business, the records are probably reliable). However, it may often be the case, particularly with archived records, that the business does not rely on converted data, for the very good reason that there is no ongoing business with respect to the archived data. In this case, we might expect that the evidence a court will require will be closely related to the technology itself: if there is no reason to think data have been inadvertently altered by the change in technology or format, then detailed evidence about the change may not be necessary. As the court found in Bell, as quoted above, "There is no reason why a bank may not have a 'record' in two or more different forms, just as it might have a duplicate set of books." What kinds of proof a court will require records that have been converted through a number of formats and softwarehardware configurations remains to be determined. For now, the most prudent course is to document the conversions very carefully (which is also virtually essential to ensure that the electronic data is effectively retained over the long term, regardless of whether the data are ever needed for court). Section 31 of the Canada Evidence Act provides useful guidance for how the courts (and future statutes) will deal with migrations from one technology to another. Subsection 31(1) provides that a photographic print is admissible in evidence so long as there is proof that the object was photographed "in order to keep a permanent record thereof" and that the object "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." Subsection 31(3) provides that evidence of compliance with these conditions can be given either verbally or by affidavit any one or more of the employees of the government or corporation having knowledge of the taking of the photograph, of the destruction, loss or delivery to a customer, or of the making of the print, as the case may be. Section 31 works in part because a photograph is a piece of paper, and, even though the image on the photographs fade and change colours over time, we are generally satisfied that they provide reasonably permanent records that will not need further migrations to other media over time. Using the print as an example of destroying original records and migrating from one technology to another, we can anticipate similar rules of evidence will apply to microfilm and optical images. With both these technologies, a photograph is taken of the record, but a paper record is not generated. Nonetheless, once the photograph is taken, the image cannot be changed (only destroyed through physical breakdown of the film or optical disk, or through obsolete technology). It is not clear from case law whether an image-produced copy will be admissible and credible in court proceedings under the Canada Evidence Act after the source or original record has been disposed of. Another reference that can be useful in guiding government on how to migrate to microfilm or optical images is the recently published National Standards of Canada: Microfilm and Electronic Image as Documentary Evidence (CAN/CGSB - 72.11-93) (reproduced in Annex G). No matter what approach courts take to the admissibility of computer records, we can be sure that they will expect government to follow reasonable industry standards and practices, as a minimum requirement. Saving digital files which are not photographs is one step less secure, unless the files are "locked" in place by using read- only technology. If the data can be easily altered inadvertently or intentionally by anyone with access to the computer file and the softwarehardware configuration that reads the file, the change may not be noticeable to anyone and it may be more difficult to convince a court to accept the record. As digital files migrate from one softwarehardware configuration to another, not only can the file be changed by a person, the conversion process itself can (and usually does) alter the record, although the alterations are usually confined to formatting details rather than to the text itself. Nonetheless, losing format details takes the information that much further away from the original document. It should be noted that even if s. 31 is available with respect to converting paper records to digital formats, the other requirements of the Act must be met. As an example, section 30 would have to be complied with for a document to be admissible as a business record. In R. v. Fandango Ceiling Fans Ltd. (1988), 88 A.R. 305 (Q.B.), the original copy of an invoice had, in the usual and ordinary course of business, been reduced to microfiche. The original copy ceased to exist. The microfiche copy was treated as a business record for the purposes of section 30 of the Act, but the Crown failed to comply with the requirement that notice to be given in advance of tendering the record as provided for in subsection 30(7) and therefore, the court refused to admit the copy of the invoice made from the microfiche. It is important to remember that even if the optical imaging or other technology is reliable, that does not give the content of the documents reliability. To the contrary, the government must be able to amass foundation evidence to establish to the satisfaction of a court the reliability of the records or the copies of the records for them to be admitted or to have any weight attached to them in a court proceeding under the Canada Evidence Act. H. Summary There are very many statutory requirements relating to documents, records, signatures and writings. Although the law is not entirely clear, it is likely that electronic messages will meet statutory requirements and definitions of these terms. However, it might be desirable for the Canada Evidence Act and Interpretation Act to clarify this point, to avoid piece-meal and inconsistent definitions arising in individual statutes, creating uncertainty for statutes that are not amended. Such amendments might clarify questions concerning hearsay evidence, opinion evidence, originals and copies, and presumed time and place of creation or receipt of messages. Nonetheless, it is true that the common law has traditionally adapted to new technologies and can be expected to continue to do so. The most important point is that courts will have to be convinced about the reliability of the electronic messages presented to them and this will require evidence about the circumstances in which the messages were created and preserved, and the reliability of the information technology used in connection with the messages. ENDNOTES _______________________________ 1 Determining when the Canada Evidence Act applies and when the various provincial evidence Acts apply can be somewhat difficult, although for the most part, the various Acts are quite similar in their provisions. Section 2 of the Canada Evidence Act provides that it applies to all criminal proceedings and to all civil proceedings and other matters over which Parliament has jurisdiction. However, s. 40 of the Canada Evidence Act provides that the provincial laws apply in all proceedings over which Parliament has legislative authority. The courts have given a narrow interpretation to s. 40 (and therefore a broad interpretation of s. 2), by limiting the application of provincial laws to matters within provincial legislative competency in order to promote consistent rules concerning admissibility of affidavit evidence when the federal government prosecutes the same federal offences in different provinces: R. v. Nickerson (1991), 106 N.S.R. (2d) 300 (C.A.). 2 Note that none of these counts or statements of definitions includes the Income Tax Act which is not on the electronic infobase of the Statutes of Canada available to Justice lawyers. 3 Entores Ltd. v. Miles Far East Corporation, [1955] 2 Q.B. 327 (CA); Sydney Steel Corp. v. Manesmann Pipe & Steel Corp. (1986), 75 NSR (2d); 186 APR 211 (NSSC); Clipper Maritime Ltd. v. Shirlstar Container Transport, [1897] 1 Lloyd's Rep. 546 (QBD); Re Viscount Supply Co. Ltd. (1963), 1 OR 640 (SCO); Falck v. Williams, [1900] A.C. 176 (P.C.); Flynn v. Kelly (1906), 12 OLR 440 (H.C.); Hessenthaler v. Farzin (1989), 546 Atl. Rep. 2d 990; Re United Canso Oil & Gas Ltd. (1980), 12 BLR 130 (NSSC); Beatty v. First Exploration Fund (1988), 25 BCLR (2d) 378; Rolling v. Willann Investments Ltd. (1989), 70 OR (2d) 578; Corinthian 724 F. Supp. 605 (S.D. Ind., 1989) 4 "Canadian Legal Issues Arising from Electronic Data Interchange," Brian D. Grayton, (1993) U.B.C. Law Rev. 257 at 272. The U.S. case cited is In Re Brawn-Coca-Cola Bottling Plants, Inc. v. Tabenken, 7 UCC Rep. Serv. (Callaghan) 565 (D.Me 1970) Bankruptcy No. 69-238-ND 5 See, for example, Laurin v. Minister of National Revenue (1960), 60 D.T.C. 1143 (Exch. Ct.) (finding that a photostatic facsimile signature of the signature of the Deputy Minister was permitted under s. 136(12) of the Income Tax Act: "Every document ... purporting to have been executed under, or in the course of administration of enforcement of, this Act over the name in writing of the Minister, the Deputy Minister ... shall be deemed to be a document signed, made and issued by the Minister, Deputy Minister ..."; Swyryda v. The Queen (1981), 81 D.T.C. 5109 (Sask. Q.B.); The Queen v. Fredricton Housing Ltd., 1973 F.C. 196 (Trial Div.) (the statement of claim purports to be signed by F.J. Dubrule on behalf of D.S. Maxwell, but F.J. Dubrule was written by Mr. Storrow, a lawyer in the Tax Litigation Section, Ms. Landry typed the name D. S. Maxwell: "there is no question that the signature of "F. J. Dubrule" written by Mr. Storrow is in fact the signature of Mr. Dubrule." (at 218) "the typed symbols, "D. S. Maxwell" when authenticated by the subscription of Mr. Dubrule's signature by Mr. Storrow, became the signature of the Deputy Attorney General of Canada." (at 223); Carltona Ltd. v. Commissioners of Works, 1943 All E.R. 560 (H.L.); Goodman v. J. Eban Ld., 1954 1 Q.B. 550 (which held that a rubber stamp bearing a nmae put on a document with the person's authority is the signature of that person for some purposes); Doyle v. Minister of National Revenue (1989), 89 D.T.C. 5483; The Queen v. B.M. Enterprises Ltd. (1992), 92 D.T.C. 6463 (F.C.T.D.), Point of Ayr Collieries v. Lloyd-George, 1943 2 All E.R. 546 (C.A.); London County Council v. Agricultural Food Products Ld. 1955 2 Q.B. 218; O'Reilly and others v. State Bank of Victoria Commissioners (1982), 153 C.L.R. 1 (Austr. High Court); The Queen v. Fredericton Housing Ltd. (1973), 73 D.T.C. 5145 (F.C.T.D.); Canadian Bronze Company Ltd. and others v. Deputy Minister of National Revenue for Customs and Excise (1985), 57 N.R. 338 (F.C.A.) 6 See sections 29 (banking records) and 17, 18, 24, 25 and 26 of the Canada Evidence Act (for government and public records). 7 See Articles 2838 and 2870. 8 J. D. Ewart, Documentary Evidence in Canada at pp. 87-93; J. Sopinka, S. Lederman and A. Bryant, The Law of Evidence in Canada (1988) at pp. 207-209. 9. [1978] 1 SCR 591 10 R. v. Smith, 1992 2 S.C.R. 915; R.v. Khan, 1990 2 S.C.R. 531. 11 See, for example, K. Chasse, "Business and Government Documents, Computer Printouts and Banking Documents Best Evidence Rule and Authentication" (1985) at p. 262; Ewart, Documentary Evidence in Canada, at pp. 93-94 and Sopinka, The Law of Evidence in Canada, at pp. 209-210. 12 Aynsley et al. v. Toronto General Hospital et al (1967), 66 D.L.R. (2d) 575 (Ont. H.C.J.) (In this case, section 35 of the Ontario Evidence Act was being examined.) 13 See, for example, Grimba; Sunila; and Mahoney. 14 See also Marakis. 15 J.D. Ewart, "Documentary Evidence: The Admissibility of Documents under section 30 of the Canada Evidence Act," (1979- 80) 22 C.L.Q. 189, at pp. 190-91 16 R. v. Mudie (1974), 20 C.C.C. (2d) 262 (Ont. C.A.), per Dubin, J.A. 17 R. v. Smith, 1992 2 S.C.R. 915 18 S. 30(10). Nothing in this section renders admissible in evidence in any legal proceeding: (a) such part of any record as is proved to be: (i) a record made in the course of an investigation or inquiry, (ii) a record made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding, (iii) a record in respect of the production of which any privilege exists and is claimed, or (iv) a record of or alluding to a statement made by a person who is not, or if he were living and of sound mind would not be, competent and compellable to disclose in the legal proceeding a matter disclosed in the record; (b) any record the production of which would be contrary to public policy; or (c) any transcript or recording of evidence taken in the course of another legal proceeding. 19 See Ewart, Documentary Evidence in Canada at pp. 108-110; Sopinka at p. 214. 20 R. v. Viaisi (1981), 62 C.C.C. (2d) 304 (B.C.S.C.) 21 R. v. Cordell (1982), 39 A.R. 281 (C.A.) 22 R. v. McMullen (1979), 47 C.C.C. (2d) 499 (Ont. C.A.) 23 R. v. Bicknell (1988), 41 C.C.C. (3d) 545 (B.C.C.A.). See also R. v. Sunila and Soleyman; R. v. Skrepetz (Feb. 8, 1990, B.C. Prov. Ct., Romilly, J); Prism Hospital Software Inc. v. Hospital Medical Records Institute (Nov. 25 1991, B.C.S., Parrett, J); R. v. Burns Foods Ltd. (1983), 42 A.R. 70 (Prov. Ct.) 24 Article 2860 25 Ewart, Documentary Evidence in Canada at p. 13 26 See, for example, Chasse, "Business and Government Documents, Computer Printouts and Banking Documents, Best Evidence Rule and Authentication," at p. 252. 27 It is worth noting in this context that expert witnesses were made available to the court in both the Grimba and Mahoney cases to explain the criminal records system. 28 These principles of proof are featured in the National Standard of Canada: Microfilm and Electronic Image as Documentary Evidence (CAN/CGSB - 72.11M92), submitted to the Canadian General Standards Board by the Canadian Information and Image Management Society (CIIMS), at pp. 30-32. 29 R. v. Vanierberghe (1978), 6 C.R. (3d) 222 (B.C.C.A.); R.v. Sanghi (1971), 6 C.C.C. (2d) 123 (N.S.C.A.), at p. 132. 30 K. Chasse, "Legal Admissibility of Electronic Images As Documentary Evidence in Canada," at p. 5. 31 K. Chasse, "Business and Government Documents, Computer Printouts and Banking Documents Best Evidence Rule and Authentication" (1985), at p. 257. 32 Apsassin v. Canada (1987), 17 C.P.C. (2d) 187 (F.C.T.D.) at 201.