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

Admissibility and 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

Types of Documents

Electronic Documents

Misc Issues

Proceedings Under the Youth Criminal Justice Act

Proof of service
152 (1) For the purposes of this Act, service of any document may be proved by oral evidence given under oath by, or by the affidavit or statutory declaration of, the person claiming to have personally served it or sent it by confirmed delivery service.
Proof of signature and official character unnecessary
(2) If proof of service of any document is offered by affidavit or statutory declaration, it is not necessary to prove the signature or official character of the person making or taking the affidavit or declaration, if the official character of that person appears on the face of the affidavit or declaration.


YCJA

Seal not required
153 It is not necessary to the validity of any information, indictment, summons, warrant, minute, sentence, conviction, order or other process or document laid, issued, filed or entered in any proceedings under this Act that any seal be attached or affixed to it.


YCJA

Summaries of Voluminous Documents

Summaries of voluminous raw documents can be admissible for the purpose of assisting the trier-of-fact in understanding "the entire picture represented by voluminous documentary evidence" as long as source documents are also admitted. "The usefulness of the summaries depended entirely ... upon the acceptance ... the facts upon which the summaries were based."[1]

In practice, spreadsheets of banking records that have not been admitted have been found acceptable where the tables can be authenticated as an accurate summary of the records it represents. The witness need not be the author of the spreadsheet or the source records.[2]

Related to this principle from Schell, summaries can be admitted without admitting the source documents under the Voluminous Document Hearsay Exception.

  1. R v Scheel, [1978] O.J. No. 888 (ONCA)(*no link) at para 13
    McDaniel vs. U.S., (1965), 343 F. 2d 785
  2. see R v Agyei, 2007 ONCJ 459 (CanLII)

Documents Found in Possession of Accused

See also: Traditional Exceptions to Hearsay

Documents that are found in actual or constructive possession of the accused can be used to draw the inference that he has knowledge of the contents of the documents and has a state of mind about any transaction contemplated by it. However, where the document has been recognized, adopted or acted upon by the accused, the documents can be admitted for the truth of their contents.[1]

Documents held in the possession of the accused is prima facie admissible for the truth of its contents.[2]

This view has been applied to documents found in the accused's offices.[3]

  1. R v Wood, 2001 NSCA 38 (CanLII)
  2. R v Drakes, 2005 CanLII 23683 (ON SC), [2005] OJ No. 2863 at para 76
    R v Beauchamp 2009 CanLII 9477 (ON SC) at paras 12 to 17
  3. R v Ivy Fisheries Ltd., 2006 NSPC 5 (CanLII), [2006] NSJ No 287 at para 33

Documents Made by Accused

Documents that contain hearsay evidence are admissible where they were made by or under the direction of the accused.[1]


  1. R v Beauchamp, 2009 CanLII 9477 (ONSC) at para 19
    R v Mondor, 2014 ONCJ 135 (CanLII)

Signatures and Handwriting

A signature is evidence suggesting the authorship of a document or knowledge and consent to the contents of it.

Where a party disputes the authenticity or identity of a signature, the signature can be proven by comparison "with any writing proved [...] to be genuine". [1]

where a witness has frequently seen the handwriting of an individual can give evidence establishing the identity of the writer.[2]

See also: R v Abdi, 1997 CanLII 4448 (ON CA), (1997) 116 CCC (3d) 385

See also Identity and Lay Opinion Evidence

  1. s. 8 of the CEA
    e.g. R v Abdi (1997) 11 CR 5th 197 (ONCA)
  2. R v Pitre, [1933] SCR 69, 1932 CanLII 69 (SCC)

Forged Documents

Proving forged signature on documents will require an expert of handwriting analysis to determine the probability of matching the accused's signature and the document.[1]

  1. eg. R v Rockwood, 2004 NLSCTD 66 (CanLII)

Errors in Documents

Certificates of analysis
Errors and ambiguity in certificates of analysis in which there was a typographical error is not fatal to the case where it can be mended by way of viva voce evidence and where “the error was not of such a nature as to have misled the accused or to interfere with his right to make full answer and defense and receive a fair trial”.[1]

  1. R v Ryden 1993 ABCA 356 (CanLII), (1994) 86 CCC (3d) 57 p62 (error in name)
    R v Bykowski 1980 ABCA 220 (CanLII) (error in date)
    R. v Smith, 2012 ABPC 14 (CanLII) (error in addressee of certificate)
    R. v Thorburn (1997), 36 W.C.B.(2d) 41, (Alta.Prov.Ct.)(*no link) certificate stating time as “504” instead of “5:04” can be cured by testimony of the police officer
    R v Crandall (1998) 195 N.B.R.(2d) 210(*no link) -- “0358 hours” interpreted to mean 3:58 a.m., no prejudice to accused c.f. R v Gosby(1974) 16 CCC (2d) 228 (NSCA)(*no link) (error in significant substance)

Inadmissible Documents

Section 30(10) sets out several types of records which are inadmissible despite any other provision of the evidence act:

  • records "made in the course of an investigation or inquiry"
  • records "made in the course of obtaining or giving legal advice or in contemplation of a legal proceeding,"
  • privileged records
  • "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;"
  • "any record the production of which would be contrary to public policy"
  • "any transcript or recording of evidence taken in the course of another legal proceeding."

Foreign Records

The admissibility of foreign documents is governed by section 36 of the Mutual Legal Assistance in Criminal Matters Act, RSC 1985, c 30 (4th Supp) (MLAC).

ADMISSIBILITY IN CANADA OF EVIDENCE OBTAINED ABROAD PURSUANT TO AN AGREEMENT
Foreign records
36. (1) In a proceeding with respect to which Parliament has jurisdiction, a record or a copy of the record and any affidavit, certificate or other statement pertaining to the record made by a person who has custody or knowledge of the record, sent to the Minister by a state or entity in accordance with a Canadian request, is not inadmissible in evidence by reason only that a statement contained in the record, copy, affidavit, certificate or other statement is hearsay or a statement of opinion.
Probative value
(2) For the purpose of determining the probative value of a record or a copy of a record admitted in evidence under this Act, the trier of fact may examine the record or copy, receive evidence orally or by affidavit, or by a certificate or other statement pertaining to the record in which a person attests that the certificate or statement is made in conformity with the laws that apply to a state or entity, whether or not the certificate or statement is in the form of an affidavit attested to before an official of the state or entity, including evidence as to the circumstances in which the information contained in the record or copy was written, stored or reproduced, and draw any reasonable inference from the form or content of the record or copy.
R.S., 1985, c. 30 (4th Supp.), s. 36; 1994, c. 44, s. 96; 1999, c. 18, s. 120.
Foreign things
37. In a proceeding with respect to which Parliament has jurisdiction, a thing and any affidavit, certificate or other statement pertaining to the thing made by a person in a state or entity as to the identity and possession of the thing from the time it was obtained until its sending to a competent authority in Canada by the state or entity in accordance with a Canadian request, are not inadmissible in evidence by reason only that the affidavit, certificate or other statement contains hearsay or a statement of opinion.
R.S., 1985, c. 30 (4th Supp.), s. 37; 1994, c. 44, s. 97; 1999, c. 18, s. 120.
Status of certificate
38. (1) An affidavit, certificate or other statement mentioned in section 36 or 37 is, in the absence of evidence to the contrary, proof of the statements contained therein without proof of the signature or official character of the person appearing to have signed the affidavit, certificate or other statement.
Notice
(2) Unless the court decides otherwise, in a proceeding with respect to which Parliament has jurisdiction, no record or copy thereof, no thing and no affidavit, certificate or other statement mentioned in section 36 or 37 shall be received in evidence unless the party intending to produce it has given to the party against whom it is intended to be produced seven days notice, excluding holidays, of that intention, accompanied by a copy of the record, copy, affidavit, certificate or other statement and unless, in the case of a thing, the party intending to produce it has made it available for inspection by the party against whom it is intended to be produced during the five days following a request by that party that it be made so available.
Service abroad
39. The service of a document in the territory over which the state or entity has jurisdiction may be proved by affidavit of the person who served it.
R.S., 1985, c. 30 (4th Supp.), s. 39; 1999, c. 18, s. 121.


MLAC

Oaths taken abroad
53. Oaths, affidavits, solemn affirmations or declarations administered, taken or received outside Canada by any person mentioned in section 52 are as valid and effectual and are of the like force and effect to all intents and purposes as if they had been administered, taken or received in Canada by a person authorized to administer, take or receive oaths, affidavits, solemn affirmations or declarations therein that are valid and effectual under this Act.
R.S., c. E-10, s. 50.


CEA

Documents to be admitted in evidence
54. (1) Any document that purports to have affixed, impressed or subscribed on it or to it the signature of any person authorized by any of paragraphs 52(a) to (d) to administer, take or receive oaths, affidavits, solemn affirmations or declarations, together with their seal or with the seal or stamp of their office, or the office to which the person is attached, in testimony of any oath, affidavit, solemn affirmation or declaration being administered, taken or received by the person, shall be admitted in evidence, without proof of the seal or stamp or of the person’s signature or official character.
Status of statements
(2) An affidavit, solemn affirmation, declaration or other similar statement taken or received in a foreign country by an official referred to in paragraph 52(e) shall be admitted in evidence without proof of the signature or official character of the official appearing to have signed the affidavit, solemn affirmation, declaration or other statement.
R.S., 1985, c. C-5, s. 54; 1994, c. 44, s. 93.


CEA


See Also