Documentary Evidence

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Introduction

Documentary evidence is any kind of evidence on which relevant information is printed upon. [1]

This generally includes paper records, such as court documents, business records, personal papers, etc.

It can also include electronic documents[2] or materials reducible to writing that is stored on machines, including: [3]

  • tape recordings[4]
  • video tapes
  • microfiche [5]
  • computer records

Documentary evidence in civil matters governed by provincial legislation have a variety of definitions in different jurisdictions.[6]

Under s. 40 of the Evidence Act allows documents to be admissible using provincial rules of evidence that apply.[7]

  1. R v Daye, [1908] 2 KB 333 at 340
    c.f. Fox v Sleeman, [1897], O.J. No. 222 (1897),17 P.R. 492 (Ont. H.C.J.)(*no link) at para 14 per Amour C.J. citing Digest of the Law of Evidence, Sir J.F. Stephen, describing it as "any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter."
  2. eg. see s. 30(12) of the CEA
  3. Sopkina, The Law of Evidence in Canada at ss.18.1
  4. R v Swartz, (1977) 37 CCC 2d 409 (*no link) at 410 (ONCA)
  5. R v Sanghi (1971) 3 NSR 2d 70 (NSCA)(*no link)
    Canada Evidence Act s.31
  6. Ontario Rules of Civil Procedure r.30.01(1)(a)
    Nova Scotia Civil Procedure Rules
  7. see s. 40 CEA

Authentication

All documents must be authenticated and established as relevant before they can be tendered into evidence. This is done either by oral or affidavit evidence unless one of the statutory or common law exception apply.[1]

The standard used to authenticate the document depends on whether the document is submitted as hearsay (where the contents of the letter helps establish some fact) or as non-hearsay (where the contents of the document is not relevant).

Unless provided by statute, all private documents must be proven to be admissible. It is usually necessary to prove execution before proof of contents.[2] Execution may be proven by inference.[3]

  1. R v Schwartz, [1988] 2 SCR 443, 1988 CanLII 11 (SCC), at para 58 ("Before any document can be admitted into evidence ... It must be authenticated in some way by the party who wishes to rely on it. This authentication requires testimony by some witness; a document cannot simply be placed on the bench in front of the judge.")
  2. R v Culpepper (1966) 90 ER 301
  3. R v Armstrong (1970), 2 NSR (2d) 204(*no link)

Non-Hearsay Documents

Documents that are used for non-hearsay purposes are admitted in the same way real evidence is admitted, which is by calling viva voce evidence of the person who can speak to it’s creation, use and the context of the document. The contents of the document need not be accurate, and where the witness cannot speak to the accuracy of the contents of the document, the contents will have little weight.

An example where the contents has no bearing is if a party were to attempt to establish that a letter was simply received by a person, which may have relevance to a case concerning actions prompted by the letter, the letter can be put into evidence by calling the person who received the letter and can confirm that it was the letter that they received and speak to the context of its receipt. By contrast, an example of a non-hearsay document where the contents is attested to as accurate is where a report is being tendered and the authenticating witness is the author of the report.

The document need not be an original, but rather can be authenticated by the witness as a fair and accurate representation of the document received.

Hearsay Documents

Documents that are submitted for the truth of their contents in lieu of oral evidence must generally be authenticated by someone who can speak with personal knowledge of the contents of the document. This can be direct personal knowledge or circumstantially personal knowledge.

The admissibility of documents for the truth of their contents is governed both by the common law and by statute, such as the Canada Evidence Act. The statutory law on documents compliments the common law, making alternative options for admissibility.[1]

There is exception to this requirement under s. 29 (financial institution documents) and s. 30 (business records) of the Canada Evidence Act, as well as several other statutory hearsay exceptions.

  1. R v Monkhouse, 1987 ABCA 227 (CanLII)
    Conley v Conley, 1968 CanLII 236 (ON CA), (1968) 70 DLR (2d) 352 (OntCA)

Best Evidence Rule

Admissibility of Specific Types of Documents

Any document can be admitted without proof where the opposing party consents.[1] Further, under s. 37(6.1) the court has a residual power to"receive into evidence anything that, in the opinion of the court, is reliable and appropriate, even if it would not otherwise be admissible under Canadian law, and may base its decision on that evidence."

There are generally three categories of documents:

  1. public documents
  2. judicial documents
  3. private documents
  1. General Host Corp. v Chemalloy Minerals, 1972 CanLII 418 (ON SC), [1972] 3 OR 142
    See also s. 655

Topics

See Also