Prepared by Prepared by Peter Sankoff, LL.M.
Evidence — VIII — Documentary Evidence
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VIII.1 — Introduction
§442 Documents are regularly admitted as proof in civil and criminal proceedings. The use to which the trier of fact may put the document depends upon other rules of evidence, including the hearsay rule, discussed elsewhere in this Title. This Part explores two requirements surrounding the manner in which documents may be admitted: the best evidence rule and the need for authentication.
VIII.2 — Best Evidence Rule
(a) — Introduction
§443 The rule demanding that only the best evidence be permitted in court was an important part of evidence law through the 18th century. It was said that the law demanded the best evidence available of a particular fact, and that only such evidence was admissible. The best evidence rule has since declined in importance, as the proposition that that all relevant evidence should be admitted, even where it was not the best available, gradually took precedence. Today, the only remaining salient feature of the rule determining admissibility is the requirement that proof of the contents of a document requires the original of the document if it is available. In cases involving evidence other than documents, the use of the phrase "best evidence rule" is treated more as a matter of tactical importance than a legal requirement. Effectively, the choice to admit evidence of lesser quality, often referred to as secondary evidence, may affect the weight to be afforded such evidence, and in appropriate cases, an adverse inference may be drawn against the party who chose not to admit the best evidence on a particular matter.
(b) — Modern Application
§444 While the rule is one of long-standing, and countless statutory exceptions have been enacted to counteract its impact, there is increasing doubt about the absolute nature of this rule, even in its limited application to documents. Many courts now recognize that modern technology has enabled copies to be accurately made, and it is not uncommon for copies to be admitted in spite of the existence of the best evidence rule. Moreover, the best evidence rule, which is a creation of the common law, does not apply in Quebec civil proceedings, and it has been significantly altered by statute in Saskatchewan. In that province, a certified copy of a document has the same effect as an original unless an opposing party demonstrates that no original exists; the copy is not a true copy in some material particular; the original is not an instrument of a nature that may be proved by copy; or the certificate is false.
§445 To the extent the best evidence rule continues to apply, it includes any sort of writing, and extends to audio or video recordings as well. Thus, a recording offered to prove the contents of a conversation must be the original, so long as this is available. Secondary evidence, such as a transcript of the recording, can supplement the recording and provide assistance to the trier of fact in understanding the contents of the original record. The best evidence rule does not preclude utilizing a transcript instead of a recording if there are concerns that the recording will cause undue prejudice to a party.
§446 The best evidence rule does not apply if the evidence is offered for a purpose other than the proof of the contents of the document. Thus, a party relying on words used in a document must prove the original document, but the rule does not apply where the document is simply supporting admissible testimony of a fact.
§447 Where multiple originals are created and executed, such as where duplicate copies of a contract are signed, each of the originals is admissible as best evidence. Similarly, a carbon copy of an original made simultaneously qualifies as best evidence as well. In contrast, photocopies of originals do not.
(c) — Exceptions
(i) — General
§448 There are numerous common law and statutory exceptions to the best evidence rule that permit a party to prove the contents of a document through a copy, viva voce testimony, or other evidence. The exceptions are intended to facilitate proof, and do not prohibit the admission of the best evidence where a party wishes to do so.
(ii) – Primary Evidence Lost or Destroyed
§449 A party may be permitted to admit secondary evidence of a fact if it can prove that: (1) the original document once existed; (2) it has been destroyed or lost; and (3) the party acted in good faith without fraudulent intent. Loss may be proven circumstantially through evidence showing that a reasonably diligent search was undertaken for the document.
(iii) — Document Possessed or Controlled by Other Party
§450 Where the best evidence is in the opposing party's possession and he or she fails or refuses to produce it after a notice to produce is served, secondary evidence may be tendered. Notice to produce is not required if the opposing party admits the original has been destroyed or lost, or if the pleadings make the contents of the document so obviously necessary that no other notice is required.
(iv) — Document Possessed by Third Party
§451 If the best evidence of a fact is possessed by a third party who cannot be compelled to produce the document, or who refuses if compelled, secondary evidence may be tendered.
(v) — Production Inconvenient or Impossible
§452 Secondary evidence may be admitted where the best evidence would be inconvenient or impossible to adduce. Thus, secondary evidence may be adduced of an inscribed chattel when the party cannot remove it because removal is either physically impossible or a violation of the law. Similarly, some courts have recognized an exception to the rule where it would require inspection of an immense number of documents. In these cases, the convenience of trials demands that other evidence be allowed to be offered, in the shape of the testimony of a competent witness who has perused the entire mass and will state summarily the net result.
(vi) — Judicial and Public Records
§453 Because production of the original document would be inconvenient, the common law permitted secondary evidence of judicial and public records. These documents were regarded as reliable because they existed for the benefit of the public and the public had the right to examine them. The common law exception was extremely narrow, requiring the document to have been made through a public process, akin to the process of a court or judicial inquiry.
§454 Admission of these types of documents is now encouraged by statute. Copies of court records from Canadian and international courts are admissible in federal and provincial proceedings so long as they are properly authenticated. Prince Edward Island has no special provision for judicial records.
§455 Judgments admitted pursuant to these provisions can be used to prove the truth of the decisions made therein, though the weight and significance to be given to them will depend on the circumstances of each case. In most instances, it will be up to the trier of fact to decide what significance to be placed on the ruling in a former judgment, though the court must consider the extent to which the ruling is effectively dispositive of the matter being contested.
§456 Legislation provides for the admissibility of a number of different types of public documents by copy, often without requiring proof of the accuracy of the copy. There are numerous examples of this kind, some contained in evidence legislation, and some specific to particular types of proceedings.
(vii) – Business Records
§457 The Canada Evidence Act creates an exception to the best evidence rule whereby a copy of a business record may be admitted if it is not possible or reasonably practicable to produce the original. The statute provides that the copy must be accompanied by two affidavits or certificates made in conformity with Canadian law or the laws of a foreign state, as appropriate: one explaining why it is not possible or practicable to produce the record, and the other authenticating the copy. Despite the wording of the provision, the substance of the two affidavits may be combined into one.
§458 In Saskatchewan, a copy of a business record is admissible where it is accompanied by an affidavit or oral testimony affirming that: (1) the record was an ordinary record of the business; (2) the entry in question was made in the usual and ordinary course; (3) the actual record is in the custody or control of the business; and (4) the copy is a true one.
(viii) — Banker's Book or Records
§459 In every jurisdiction except Newfoundland and Labrador and the Yukon, which have no special exception of this sort, a copy of a banker's book or record will also be admissible if: (1) the record was an ordinary book or record made by the bank; (2) the entry was made in the ordinary course of business; (3) the book or record is in the custody or control of the financial institution; and (4) the copy is a true copy, as sworn to by an official of the bank.
(ix) — Electronic Records
§460 In the federal jurisdiction, as well as in Alberta, Manitoba, Nova Scotia, Ontario, Saskatchewan, the Northwest Territories and Nunavut, the best evidence rule does not apply where the document constitutes an electronic record stored on a computer system or other device, and the court is satisfied of the integrity of the storage system. In the absence of evidence to the contrary, the integrity of the system is established by evidence that the system was operating properly, or proof that any improper operation did not affect the integrity of the records. Integrity of the system will also be assumed where a party seeks to adduce a record that was stored by an adverse party to the proceeding, or by a person who is not a party to the proceeding where it was stored in the usual and ordinary course of business.
§461 New Brunswick has a more limited version of this exception, permitting the admission of documents created in electronic form only where the document was created in the normal course of business or affairs. Proof of the origin of the document is required by the author of the document or by any other person with knowledge.
§462 The statutory enactments seek to recognize that the concept of an "original" is not readily applied to electronic documents. Moreover, due to the inherent nature of electronic documents, it is often impossible to provide direct evidence of the integrity of an electronic document. In effect, the integrity of an electronic document is proven by establishing the reliability of the electronic document system in which it is recorded or stored. Proof of system integrity is a substitute for proof of electronic document integrity.
§463 Proof of system integrity is assisted by a number of statutory presumptions, all of which seek to ensure that the evidence the court receives is, functionally, the same as the information that went into the computer system. The provisions are designed to ensure that the document provided to the courts is the same as the one input into the computer. Where a system does not preserve the integrity of a document, it cannot rely upon the presumption for admission.
§464 Electronic information that is automatically generated by computer without human intervention should be considered for admission as real evidence, rather than documentary evidence. If the information comes before the court in electronic form, a witness must confirm that it comes from the original source. It may also be necessary to have evidence concerning the custody and protection of that information from the original source to the court, particularly if it is transferred to a number of different media.
VIII.3 — Authentication
(a) — Generally
§465 Subject to a number of exceptions discussed below, a document will not be admitted into evidence until a party offers some evidence of its authenticity. In the absence of such evidence, the document is inadmissible and should be excluded. Authentication is a procedural requirement akin to establishing the competency of a witness. Once a document is authenticated, it becomes provisionally admissible, but the actual use to which a document may be put is governed by other rules of evidence. Weaknesses in authentication normally go to weight, rather than admissibility.
§466 Authenticity of a document can be proven in a number of ways. Direct evidence of authentication can consist of oral testimony by the author of the document, a signatory or an eyewitness to the signing. Circumstantial evidence of identification is also permitted, and may involve handwriting or other identification by a witness who did not see the making or signing of the document, but who can testify to the identity of the signatory. In most jurisdictions, legislation specifically provides that lay and expert witnesses alike can testify to the identity of handwriting and be utilized for the purposes of authentication. Another manner of authenticating a document is through the reply letter doctrine, whereby it can be shown that the letter was received in response to an earlier letter and shows an understanding of the contents of the initial letter.
§467 The doctrine of "documents in possession" is another circumstantial form of authenticating documents. It arises where one party seeks to admit a document against an opposing party and is premised upon proof that the document is or has been in the opposing party's possession.
(b) — Authentication Not Required
468 The authenticity of an ancient document produced from proper custody, otherwise free of suspicion, is presumed in the absence of evidence to the contrary. At common law, there is some uncertainty regarding the period required to qualify a document as "ancient", though it would appear the threshold was no less than 30 years. Some courts have suggested the period is only 20 years, and in certain jurisdictions this period has been specifically enacted by statute.
§469 Authenticity may be established by an admission of the opposing party, and the rules of court and civil procedure in most jurisdictions encourage this process in the ordinary course. In most jurisdictions, the rules provide that a party may serve another party with a notice or request to admit a document's authenticity for the purposes of a proceeding. If the party does not respond or specifically deny the authenticity of the document, the document is deemed to be authentic.
§470 A variety of common law and statutory provisions may dispense with, or facilitate, proof of authenticity.
(c) — Attested Document
§471 At common law, attested documents could not be authenticated without testimony from an attesting witness, unless it was shown that the attendance of such witness could not be obtained. This requirement has been eliminated by legislation in almost every jurisdiction. Now, unless the law specifically requires authentication by an attesting witness, authenticity may be proved in the normal manner.
§472 Where the law requires attestation of a document, the witness must normally be required to authenticate a disputed document. If no attesting witness is available to authenticate the document, evidence of the attesting witness's signature may prove sufficient.