Electronic Documents and Records: Difference between revisions

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'''Social Media Evidence'''<Br>
Given the impermanence of online evidence it can be that screenshots will be found to be the "best evidence" available.<ref>
R v Hirsch, [http://canlii.ca/t/gxq03 2017 SKCA 14] (CanLII)
</ref>


{{reflist|2}}
{{reflist|2}}

Revision as of 13:43, 2 March 2018

Introduction

Electronic documents are governed by s.31.1 to 31.8 of the CEA. The provisions are meant to apply "in conjunction with either some common law general rule of admissibility of documents or some other statutory provision". The sections have the effect of deeming electronically produced documents as "best evidence" (see s.31.1 and 31.2).[1]

In determining admissibility of electronic documents the court must determine whether the record is authentic and reliable.[2]

Malleabillity of Electronic Records
The fact that records are electronic render them more malleable and so should be considered more closely for authenticity and reliability.[3]

Evidence Act Only Affects Authentication and Best Evidence
These rules however are not intended to "not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence."[4]

These provisions are mean to address the fact that "technological change has rendered the former distinction between originals and copies a moot distraction in many areas".[5]

It has been suggested that s. 31 is not designed as an exception to hearsay, instead only provide a process of authentication and admissibility.[6]

In most cases where electronic documents are being tendered as documentary evidence--ie. where the data was inputted by a human--it should be treated as hearsay.[7]

In order to admit electronic documents for the truth of its contents, in the absence of the author, may only be admitted as business records through s. 30 of the CEA or by using one of the hearsay exceptions.[8]

Records of Automated Processes
Records created by an automated process is not be hearsay as there is no person behind the records that could potentially be cross-examined on the meaning of the information.[9]

Variable Standard
The admission of electronic documents will vary on the format that the record takes (printout, scanned copy, or native digital format). All cases the documents must be authentic and satisfy the best evidence rule.

  1. ↑ R v Morgan [2002] N.J. No. 15 (QL) (Prov. Ct.)(*no CanLII links) at para 20-21
  2. ↑ R v Nde Soh, 2014 NBQB 20 (CanLII), at para 22
  3. ↑ R v Soh, 2014 NBQB 20 ("electronic documents are much more malleable than ordinary documents. They give rise to specific problems with respect to authenticity and reliability. It is possible to overcome these problems by applying sections 31.1 to 31.8 of the Act.") see also R v Andalib-Goortani, 2014 ONSC 4690 (CanLII)
  4. ↑ See s. 31.7 ("31.7 Sections 31.1 to 31.4 do not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence.") 2000, c. 5, s. 56.
  5. ↑ R v Hall [1998] BCJ No 2515 (BCSC), 1998 CanLII 3955 (BC SC) at para 52
    See also Desgagne v Yuen et al, 2006 BCSC 955 (CanLII) suggesting file copies are sufficient for litigation unless integrity is being challenged
  6. ↑ R v Mondor, 2014 ONCJ 135 (CanLII) at para 38
  7. ↑ Mondor, at para 18 to 19
    Underwood and Penner, Electronic Evidence in Canada (Toronto: Carwell, 2013) at p. 13, 14
  8. ↑ Mondor at para 38
  9. ↑ Saturley v CIBC World Markets, 2012 NSSC 226

Receipt of Electronic Documents

Section 842 permits courts to "create, collect, receive, store, transfer, distribute, publish or otherwise deal with electronic documents" in accordance with the Code or rules of court.

Transfer of data

843. (1) Despite anything in this Act, a court may accept the transfer of data by electronic means if the transfer is made in accordance with the laws of the place where the transfer originates or the laws of the place where the data is received.
Time of filing
(2) If a document is required to be filed in a court and the filing is done by transfer of data by electronic means, the filing is complete when the transfer is accepted by the court.
2002, c. 13, s. 84.
Documents in writing
844. A requirement under this Act that a document be made in writing is satisfied by the making of the document in electronic form in accordance with an Act or the rules of court.
2002, c. 13, s. 84.


– CCC

Definition of Electronic Documents

Under s. 31.8 of the CEA, "electronic documents" are defined as:

31.8
...
...data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.


– CEA

This definition would include emails, all computer files, meta data associated with computer files, content of websites such as Facebook, Twitter, and chat logs found online.[1]

Similarly, s. 841 of the Code defines "data" and "electronic document":

Electronic Documents
Definitions
841 The definitions in this section apply in this section and in sections 842 to 847. data means representations of information or concepts, in any form. (données) electronic document means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, print-out or other output of the data and any document, record, order, exhibit, notice or form that contains the data. (document électronique)
R.S., 1985, c. C-46, s. 841; R.S., 1985, c. 31 (4th Supp.), s. 97; 2002, c. 13, s. 84.


– CCC

  1. ↑ R v Nde Soh, 2014 NBQB 20 (CanLII), at para 21
    Desgagne v Yuen et al, 2006 BCSC 955 (CanLII) - suggests defintion includes meta data

Authentication

The burden is upon the party tendering the electronic document to prove its authenticity:

Authentication of electronic documents
31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.
2000, c. 5, s. 56.


– CEA

The proof of authentication is as condition precedent to admission of records.[1]

There is "no objective standard to measure sufficiency"[2]

The standard has been described as simply requiring evidence "capable of supporting a finding that the electronic document is as it claims to be". There must be "some evidence of authenticity".[3] This standard is merely a threshold test that permits the evidence to be considered for "ultimate evaluation" and nothing more.[4]

No Proof of Integrity
At the authentication stage, the judge is not to consider the "integrity" of the evidence, which is the focus of analysis on s. 31.2 relating to the "best evidence rule".[5]

There is some suggestion that the party seeking admission of the record has the burden to establish the absence of any tampering.[6] However, it should not be taken too far when it comes to electronic records, including internet sourced records, since all electronic documents have the potential to be manipulated in some way.[7]

Authentication of Identity Evidence
Where identity of the accused whose communication is found a electronic document is in dispute, the proof of authenticity requires that the Crown adducing the evidence show:[8]

  1. "a preliminary determination must be made as to whether, on the basis of evidence admissible against the accused, the Crown has established on a balance of probabilities that the statement is that of the accused" and
  2. "If this threshold is met, the trier of fact should then consider the contents of the statement along with other evidence to determine the issue of innocence or guilt."

Authentication of cell phone evidence
In relation to the admission of text messages found on a cell phone, the question of who sent the text messages is an issue of authentication and relevance not hearsay.[9] Where the party adducing the evidence cannot prove who sent the message then they are not reliable".[10]

Proof of identity of the sender which is necessary for authentication and reliability should include elements such as:[11]

  • recorded purchaser and subscriber;
  • usage being consistent with the activities of the alleged user;
  • location where the phone was used
  • observational evidence of "exclusive or non-exclusive use" of the cell phone;
  • contents of the cell phone text messages and telephone calls;
  • patterns in cellphone and text message communications including the messages themselves; and
  • evidence from witnesses who received communications from a cell phone and who can identify the source of those communications.

Linking a facebook account to an email address known to be used by the accused can be sufficient to authenticate facebook chat log.[12]

Authentication of Social Media and Web Evidence
Screenshots of a website are not admissible simply as being forms of photograph and must comply with the s. 31.1 to 31.8 of the Evidence Act.[13] However, it will usually be sufficient to have the account owner, or a party to a chat log, authenticate the records as accurate.[14]

  1. ↑ R v Avanes, 2015 ONCJ 606 (CanLII)
  2. ↑ FH v McDougall, 2008 SCC 53 (CanLII)
  3. ↑ R v Hirsch, 2017 SKCA 14 (CanLII) at para 18
    R v CL, 2017 ONSC 3583 (CanLII), par. 21 ("The common law imposes a relatively low standard for authentication; all that is needed is “some evidence” to support the conclusion that the thing is what the party presenting it claims it to be.")
  4. ↑ CL, ibid. at para 21 citing Pacioccco
  5. ↑ Hirsch, ibid. at para 18
  6. ↑ R v Andalib-Goortani, 2014 ONSC 4690 (CanLII) at paras 28 to 29 - photograph inadmissible due to inability to authenticate it where metadata stripped from the file
  7. ↑ R v Clarke, 2016 ONSC 575 (CanLII) at para 119
  8. ↑ Evans, 1993 CanLII 86 (SCC), [1993] 3 S.C.R. 653 at para 32
    R v Moazami, 2013 BCSC 2398 (CanLII) at para 12 - re admission of facebook messages
  9. ↑ R v Vader, 2016 ABQB 287 (CanLII) at para 14
    R v Serhungo, 2015 ABCA 189 (CanLII) at para 77 per O'Ferrall JA appealed on other issue at 2016 SCC 2 (CanLII)
  10. ↑ Vader, supra at para 15
    Serhungo, supra at para 86
  11. ↑ Vader, supra at para 17
  12. ↑ R v Harris, 2010 PESC 32 (CanLII)
  13. ↑ R v Bernard, 2016 NSSC 358 (CanLII) at para 44
    R v Soh, 2014 NBQB 20 (CanLII)
    R v Moazami, 2013 BCSC 2398 (CanLII)
  14. ↑ Bernard, supra at para 49
    Hirsch, supra at para 18 ("Quite simply, to authenticate an electronic document, counsel could present it to a witness for identification and, presumably, the witness would articulate some basis for authenticating it as what it purported to be ... That is, while authentication is required, it is not an onerous requirement.")

Best Evidence Rule

See also: Best Evidence Rule

The "best evidence rule" can be satisfied by establishing either:[1]

  • "the integrity of the electronic documents system" that generated the document (s. 31.2(1)(a)) which is presumed (s. 31.3, see "presumption of integrity" below).
  • in the case of printouts, that the "printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout" (s. 31.2(2))
  • the presumption relating to electronic signatures (see s. 31.4)

Application of best evidence rule — electronic documents
31.2 (1) The best evidence rule in respect of an electronic document is satisfied

(a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or
(b) if an evidentiary presumption established under section 31.4 applies.

Printouts
(2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout.
2000, c. 5, s. 56.


– CEA

Social Media Evidence
Given the impermanence of online evidence it can be that screenshots will be found to be the "best evidence" available.[2]

  1. ↑ See R v Nde Soh, 2014 NBQB 20 (CanLII) - admitting facebook chats from testimony of one of the parties to the chat
  2. ↑ R v Hirsch, 2017 SKCA 14 (CanLII)

Integrity of Electronic Document System

The authenticity and reliability of electronic documents can be established by "proof of the integrity of the electronic documents system rather than that of the specific electronic document".[1]

Proof of integrity is established by factors including the manner of record, compliance with industry standards, business reliance, and security.[2]

The evidence to show integrity of a records keeping system needs only show that the system was secure and that there was no observable evidence of tampering. There is no need to prove that there was reasonable no way by which records can be tampered with.[3]

  1. ↑ Nde Soh, 2014 NBQB 20 (CanLII), at para 25
  2. ↑ R v Oler, 2014 ABPC 130 (CanLII) at para 7
  3. ↑ R v Clarke, 2016 ONSC 575 (CanLII)

Presumption of Integrity

Under s. 31.3, in "absence of evidence to the contrary", the integrity of electronic documents are presumed where the is evidence of at least one of the following:

  1. "that at all material times the computer system or other similar device used by the electronic documents system was operating properly" (s. 31.3(a));
  2. if the device was not operating properly at all material times, that the malfunction "did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system" (s. 31.3(a));
  3. that "the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it";(s. 31.3(b)) or
  4. the document "was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it." (s. 31.3(c))

Presumption of integrity
31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven

(a) by evidence capable of supporting a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;
(b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or
(c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

2000, c. 5, s. 56.


– CEA

Standard of Proof
The presumption can be invoked where the party adducing the electronic evidence can prove on a standard of balance of probabilities that one of the categories in s. 31.3 applies.[1]

Stored or Recorded by Adverse Party
There should be some evidence as to the "origin" of any "screen shots" and "attempt to access" the social media account.[2]

Lay Evidence
If an operator of a computer device can testify that the device was "working properly at the relevant time", and where no contradictory evidence is found, the Crown can rely on the presumption of integrity.[3]

  1. ↑ See R v Avanes, 2015 ONCJ 606 (CanLII) at para 63
    R v CL, 2017 ONSC 3583 (CanLII), at para 24 (Integrity of the storage system can be established "...under s. 31.2(1)(a), by proving the “integrity of the electronic document system” in which the document was stored. Direct or circumstantial evidence that demonstrates, on the balance of probabilities, that the electronic record in question is an accurate reproduction of the document stored on the computer is sufficient.")
  2. ↑ R v Bernard, 2016 NSSC 358 (CanLII) at para 58
  3. ↑ R v KM, 2016 NWTSC 36 (CanLII), at paras. 36-60, per Charbonneau J.
    R v Burton, 2017 NSSC 3 (CanLII), at paras. 30-32
    R v MJAH, 2016 ONSC 249 (CanLII), at paras. 45-48
    R v Colosie, 2015 ONSC 1708(*no CanLII links) , at paras. 12-27
    R v Ghotra, [2015] O.J. No. 7253 (QL)(*no CanLII links) , at paras. 148-9
    R v CL, 2017 ONSC 3583 (CanLII), at paras 26 to 27

Admissibility of Contents of Records

Once a computer record is authenticated, the records will usually be admissible under one of the following methods of admissibility for the truth of their contents:[1]

Where compilation was carried out by automated means, it may be possible to admit them through the common law business record method.[3]

Evidence that is "automatically recorded by any means, other than by human labour, and the evidence so recorded can be reproduced in any form, intelligible to the human mind, the reproduction is admissible as real evidence." However, "The weight to be attached to such evidence will depend on the accuracy and integrity of the process employed."[4]

Admission of Electronic Records under the Principled Approach

The analysis of reliability should "be assessed by focusing on the circumstances in which information was generated, recorded, stored, and reproduced.".[5]

  1. ↑ R v C.M., 2012 ABPC 139 (CanLII) - review methods of admitting electronic documents, re phone records
  2. ↑ see R v McCulloch, [1992] BCJ No. 2282 (BCPC)(*no CanLII links) at para 18 regarding real evidence
    see also Saturley v CIBC World Markets Inc., 2012 NSSC 226 (CanLII) - makes distinction between automated generated record which is real evidence, and human-made records which are documentary evidence
    Animal Welfare International Inc. and W3 International Media Ltd., 2013 BCSC 2125 (CanLII) - agrees with Saturley
  3. ↑ Eg. R v Sunila, (1986) 26 CCC (3d) 331 (NSSC)(*no CanLII links)
    R v Rideout, [1996] NJ No 341(*no CanLII links)
    R v Moisan, 1999 ABQB 875 (CanLII), (1999) 141 CCC (3d) 213
    R v Monkhouse, 1987 ABCA 227 (CanLII)
  4. ↑ McCulloch, supra at para 18
  5. ↑ R v Nardi, 2012 BCPC 318 (CanLII) at para 17

Procedure

Dealing with data in court
842 Despite anything in this Act, a court may create, collect, receive, store, transfer, distribute, publish or otherwise deal with electronic documents if it does so in accordance with an Act or with the rules of court.
2002, c. 13, s. 84.


– CCC

Proof by Standard, Procedure, Usage or Practice

Standards may be considered
31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.
2000, c. 5, s. 56.


– CEA

Proof by Affidavit

Proof by affidavit
31.6 (1) The matters referred to in subsection 31.2(2) [print-outs] and sections 31.3 [presumption of integrity] and 31.5 [proof by standard, procedure, usage or practice] and in regulations made under section 31.4 [proof of electronic signatures] may be established by affidavit.
Cross-examination
(2) A party may cross-examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence

(a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and
(b) with leave of the court, in the case of any other deponent.

2000, c. 5, s. 56.
[annotated added]


– CEA

Expert Evidence for Admissibility

See also: Expert Evidence

Where the authenticity and admissibility is not being disputed there it should not be necessary to call any expert evidence in order to admit any digital evidence such as facebook, email or text messages.[1] The trier of fact can assess weight of the evidence without expert evidence, and account for the possibility of fabrication, editing or deletion, based on the testimony of the parties involved in the communication.[2]

It has been suggested that the admission of certain electronic evidence from "mundane" technology (such as social media websites or cell phone text messages) such that the typical user would be well versed in the functionality of the device and meaning of the contents, can be authenticated without expert evidence.[3]

Proof of authenticity of the record and integrity of system can be proven either by expert evidence or by circumstantial evidence. [4] Expert evidence is preferred when authenticating the results from an extraction of an electronic device.[5]

  1. ↑ Ducharme v Borden, 2014 MBCA 5 (CanLII) at paras 15 to 17 - re civil proceedings where parties to communication testified, applying The Manitoba Evidence Act
  2. ↑ Ducharme v Borden, ibid. at para 17
  3. ↑ See Paciocco, "Proof and Progress" Canadian Journal of Law and Technology
    See also R v Soh, 2014 NBQB 20 (CanLII)
  4. ↑ R v Avanes, 2015 ONCJ 606 (CanLII) at para 65
  5. ↑ Avanes, ibid. at para 65 -- judge suggests expert evidence could be simply admitted through affidavit.

Definitions

Definitions
31.8 The definitions in this section apply in sections 31.1 to 31.6.
...
“computer system” means a device that, or a group of interconnected or related devices one or more of which,

(a) contains computer programs or other data; and
(b) pursuant to computer programs, performs logic and control, and may perform any other function.


...
“data” means representations of information or of concepts, in any form.


...
“electronic document” means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.


...
“electronic documents system” includes a computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic documents.


...
“secure electronic signature” means a secure electronic signature as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.
2000, c. 5, s. 56.


– CCC


Section 31(1) of the PIPEDA states:

secure electronic signature means an electronic signature that results from the application of a technology or process prescribed by regulations made under subsection 48(1). (signature électronique sécurisée)


– PIPEDA

Receipt of Sworn Documents

Oaths
846. If under this Act an information, an affidavit or a solemn declaration or a statement under oath or solemn affirmation is to be made by a person, the court may accept it in the form of an electronic document if

(a) the person states in the electronic document that all matters contained in the information, affidavit, solemn declaration or statement are true to his or her knowledge and belief;
(b) the person before whom it is made or sworn is authorized to take or receive informations, affidavits, solemn declarations or statements and he or she states in the electronic document that the information, affidavit, solemn declaration or statement was made under oath, solemn declaration or solemn affirmation, as the case may be; and
(c) the electronic document was made in accordance with the laws of the place where it was made.

2002, c. 13, s. 84.
Copies
847. Any person who is entitled to obtain a copy of a document from a court is entitled, in the case of a document in electronic form, to obtain a printed copy of the electronic document from the court on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the relevant province.
2002, c. 13, s. 84.


– CCC


Electronic Signatures

Presumptions regarding secure electronic signatures
31.4 The Governor in Council may make regulations establishing evidentiary presumptions in relation to electronic documents signed with secure electronic signatures, including regulations respecting

(a) the association of secure electronic signatures with persons; and
(b) the integrity of information contained in electronic documents signed with secure electronic signatures.

2000, c. 5, s. 56.


– CEA

Sections 2 to 5 of the Secure Electronic Signature Regulations, SOR/2005-30 states that:

Technology or Process
2 For the purposes of the definition secure electronic signature in subsection 31(1) of the Act, a secure electronic signature in respect of data contained in an electronic document is a digital signature that results from completion of the following consecutive operations:

(a) application of the hash function to the data to generate a message digest;
(b) application of a private key to encrypt the message digest;
(c) incorporation in, attachment to, or association with the electronic document of the encrypted message digest;
(d) transmission of the electronic document and encrypted message digest together with either
(i) a digital signature certificate, or
(ii) a means of access to a digital signature certificate; and
(e) after receipt of the electronic document, the encrypted message digest and the digital signature certificate or the means of access to the digital signature certificate,
(i) application of the public key contained in the digital signature certificate to decrypt the encrypted message digest and produce the message digest referred to in paragraph (a),
(ii) application of the hash function to the data contained in the electronic document to generate a new message digest,
(iii) verification that, on comparison, the message digests referred to in paragraph (a) and subparagraph (ii) are identical, and
(iv) verification that the digital signature certificate is valid in accordance with section 3.


3 (1) A digital signature certificate is valid if, at the time when the data contained in an electronic document is digitally signed in accordance with section 2, the certificate

(a) is readable or perceivable by any person or entity who is entitled to have access to the digital signature certificate; and
(b) has not expired or been revoked.

(2) In addition to the requirements for validity set out in subsection (1), when the digital signature certificate is supported by other digital signature certificates, in order for the digital signature certificate to be valid, the supporting certificates must also be valid in accordance with that subsection.
4 (1) Before recognizing a person or entity as a certification authority, the President of the Treasury Board must verify that the person or entity has the capacity to issue digital signature certificates in a secure and reliable manner within the context of these Regulations and paragraphs 48(2)(a) to (d) of the Act.
(2) Every person or entity that is recognized as a certification authority by the President of the Treasury Board shall be listed on the website of the Treasury Board Secretariat.
Presumption
5 When the technology or process set out in section 2 is used in respect of data contained in an electronic document, that data is presumed, in the absence of evidence to the contrary, to have been signed by the person who is identified in, or can be identified through, the digital signature certificate.


– Regs


Section 845 also states:

Signatures
845 If this Act requires a document to be signed, the court may accept a signature in an electronic document if the signature is made in accordance with an Act or the rules of court.
2002, c. 13, s. 84.


– CCC

See Also

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