Best Evidence Rule: Difference between revisions

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{{CanLIIRP|Galarce|g7pmz|1983 CanLII 2281 (SKQB)|, (1983) 35 CR 3d 368 (SKQB)}}{{perSKQB|Gerein J}}<br>
{{CanLIIRP|Galarce|g7pmz|1983 CanLII 2281 (SKQB)|, (1983) 35 CR 3d 368 (SKQB)}}{{perSKQB|Gerein J}}<br>
{{CanLIIR|Torres|fqr71|2012 ABPC 69 (CanLII)}}{{perABPC|Shriar J}}{{atL|fqr71|58}} (“Courts across the common law world have long recognized that in many cases the ‘best evidence rule’ is outdated given the ubiquity of...digital record keeping and transmission.  It is often hard to know what is an original of a particular document.”)<br>
{{CanLIIR|Torres|fqr71|2012 ABPC 69 (CanLII)}}{{perABPC|Shriar J}}{{atL|fqr71|58}} (“Courts across the common law world have long recognized that in many cases the ‘best evidence rule’ is outdated given the ubiquity of...digital record keeping and transmission.  It is often hard to know what is an original of a particular document.”)<br>
{{CanLIIR|Papalia|1vqxx|1977 CanLII 54 (ON CA)}}{{perONCA|Jessup JA}} (“any strict interpretation of this principle has long been obsolete”)<br>
{{CanLIIR|Papalia|1vqxx|1977 CanLII 54 (ONCA)}}{{perONCA|Jessup JA}} (“any strict interpretation of this principle has long been obsolete”)<br>
</ref>  
</ref>  
There is some suggestion that a lack of original will merely go to weight.<ref>
There is some suggestion that a lack of original will merely go to weight.<ref>
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===Modern Approach===
===Modern Approach===
The more modern approach tends to say that the rule is not to be applied strictly. It should be used “as a guide for choosing the appropriate method of proof”. This will depend on the particular circumstances of the case and what “the nature of the case will allow”.<ref>
The more modern approach tends to say that the rule is not to be applied strictly. It should be used “as a guide for choosing the appropriate method of proof”. This will depend on the particular circumstances of the case and what “the nature of the case will allow”.<ref>
{{CanLIIRP|Shayesteh|6j4c|1996 CanLII 882 (ON CA)|, (1996), 31 OR (3d) 161 (ONCA)}}{{perONCA|Charron JA}}<br>
{{CanLIIRP|Shayesteh|6j4c|1996 CanLII 882 (ONCA)|, (1996), 31 OR (3d) 161 (ONCA)}}{{perONCA|Charron JA}}<br>
see also {{CanLIIR-N|Ghotra|, [2015] OJ No 7253 (ONSC)}}{{perONSC| Durno J}}<br>
see also {{CanLIIR-N|Ghotra|, [2015] OJ No 7253 (ONSC)}}{{perONSC| Durno J}}<br>
{{CanLIIR|Burton|gwqc7|2017 NSSC 3 (CanLII)}}{{perNSSC|Arnold J}}{{atL|gwqc7|26}} citing Ghotra<br>
{{CanLIIR|Burton|gwqc7|2017 NSSC 3 (CanLII)}}{{perNSSC|Arnold J}}{{atL|gwqc7|26}} citing Ghotra<br>
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Where the original has been established as destroyed, a copy will suffice.<ref>
Where the original has been established as destroyed, a copy will suffice.<ref>
{{CanLIIR|Swartz|htz30|1977 CanLII 1925 (ON CA)}} affd at [1979] 2 SCR 256
{{CanLIIR|Swartz|htz30|1977 CanLII 1925 (ONCA)}} affd at [1979] 2 SCR 256
</ref>
</ref>
{{Reflist|2}}
{{Reflist|2}}

Revision as of 16:51, 21 March 2021

General Principles

Where the contents of a document are material to the case, the traditional common law Best Evidence Rule (or "documentary originals rule") requires that the party submit the original unless the party is unable to do so. The court can accept a secondary copy where it is satisfied that the original was lost, destroyed or otherwise unavailable all in good faith.[1]

The primary role of the BER is merely to be an "adjunct to authenticity" that assures the court that the document is the same as the one inputted into the computer.[2]

The rule excludes inferior evidence when better is available and permit inferior evidence when better is not available.[3]

This rule arises from a time before the advent of computers and photocopiers when all copying was done by hand. It is sometimes criticized as a rule that has outlived its purpose.[4] There is some suggestion that a lack of original will merely go to weight.[5]

Nevertheless, the best evidence rule is part of the common law. There are a number of statutory enactments that allow for exemption to this rule, such as CEA s. 29 [financial records], 30(3) [business records], 31(2)(c)[government records] [6].

The BER does not normally prevent a party from testifying as to the contents of a lost or non-seized video.[7]

The party objecting to the admissibility of the evidence cannot rely on the BER where that party is in possession of the original copies of the record at issue.[8]

Purpose to the Rule

The rule's original purpose was "simply to avoid fraud and forgery".[9]

Non-Criminal Cases

In a number of province's rules, there is a presumption of permitting copies of documents as long as the right to inspect the originals remains.[10]

  1. ↑ See R v Betterest Vinyl Mfg. Ltd, 1989 CanLII 7251 (BCCA), , 52 CCC (3d) 441 (BCCA), per Taggart JA
    See R v Swartz, 1977 CanLII 1925, , 37 CCC (2d) 409 (Ont. C.A.), per Jessup JA affirmed 1979 CanLII 38 (SCC), [1979] 2 SCR 256, per Dickson J
  2. ↑ R v CL, 2017 ONSC 3583 (CanLII), per Baltman J, at para 23 (“Turning to the “best evidence” rules, that too is not rocket science. According to Paciocco, the primary role the “best evidence” provisions of the CEA play is merely as an “adjunct to authenticity”; they assure the court that the document submitted is the same as the one that was input into the computer: Paciocco, at p. 200. The CEA sets out four ways in which this can be done, all of which essentially provide some assurance of continuity between the data that was input and the information on the electronic document being offered in court.“)
  3. ↑ Paciocco, “Proof and Progress” at p. 199 (“It was both a rule of exclusion (do not produce inferior evidence if you have better) and a rule of inclusion (if you do not have better, the evidence you have is acceptable if otherwise admissible).“)
  4. ↑ See R v Donald, 1958 CanLII 470 (NB CA), (1958) 121 CCC 304 (NBCA), per Bridges JA at 306
    R v Galarce, 1983 CanLII 2281 (SKQB), , (1983) 35 CR 3d 368 (SKQB), per Gerein J
    R v Torres, 2012 ABPC 69 (CanLII), per Shriar J, at para 58 (“Courts across the common law world have long recognized that in many cases the ‘best evidence rule’ is outdated given the ubiquity of...digital record keeping and transmission. It is often hard to know what is an original of a particular document.”)
    R v Papalia, 1977 CanLII 54 (ONCA), per Jessup JA (“any strict interpretation of this principle has long been obsolete”)
  5. ↑ Garton v Hunter, [1969] 1 All ER 451 at 453 per Denning J.
    see also, R v Cotroni (1977) 37 CCC (2d) 409 (ONCA)(*no CanLII links) - audio re-recordings admitted
  6. ↑ s.29 CEA
  7. ↑ R v After Dark Enterprises Ltd., 1994 ABCA 360 (CanLII), , 94 CCC (3d) 574 (Alta. C.A.), per Kerans JA (3:0), at para 16 ("In our view the best evidence rule does not preclude the admission of viva voce evidence of persons who observed the video... However, the evidence may vary greatly in its weight and reliability.")
  8. ↑ After Dark Enterprises, supra
    R v JSC, 2013 ABCA 157 (CanLII), per curiam, at para 14 (“The best evidence rule provides an admonition that real evidence is usually more reliable than human evidence: ... In that case this court found that the testimony of what by-law officers had seen on a video in a store was admissible evidence about the contents of the video. The Crown never had possession of the videos. The appellant contends that the trial judge erred in relying on After Dark Enterprises as in that case there was a clear and reasonable explanation for the Crown’s failure to produce the video at trial, whereas here, the trial judge found that the Crown acted negligently. He also says that in After Dark Enterprises the party who objected to the admissibility of the impugned evidence was in possession of the videos and could not be allowed to “sit on the evidence, and at the same time, object that it has not been produced”: ”)
  9. ↑ After Dark Enterprises, supra ("The learned trial judge says that the prosecution cannot call any other evidence if real evidence on the same point was available to be seized and was not seized. That extends the best evidence rule far beyond its original purpose, which was simply to avoid fraud and forgery, into a large alteration of practice and procedure in courts today. We do not accept it.")
  10. ↑ e.g. Alberta Evidence Act, RSA 2000, c A-18, at s. 41(5) and (6)
    R v Aitkens, 2019 ABPC 30 (CanLII), per Robertson J

Modern Approach

The more modern approach tends to say that the rule is not to be applied strictly. It should be used “as a guide for choosing the appropriate method of proof”. This will depend on the particular circumstances of the case and what “the nature of the case will allow”.[1] Greater emphasis instead is placed on the existence of a "proper foundation" for the evidence that establishes it as "authentic and accurate".[2]

The evidence can also be considered in light of "secondary evidence" depending on the discretion of the court.[3]


  1. ↑ R v Shayesteh, 1996 CanLII 882 (ONCA), , (1996), 31 OR (3d) 161 (ONCA), per Charron JA
    see also R v Ghotra, [2015] OJ No 7253 (ONSC)(*no CanLII links) , per Durno J
    R v Burton, 2017 NSSC 3 (CanLII), per Arnold J, at para 26 citing Ghotra
  2. ↑ Ghotra, ibid., per Durno J, at para 125
    US v Knolh, 379 F. 2d. 427 (1967)
  3. ↑ Shayesteh, supra
    Burton, supra, at para 26

Justifying Use of Secondary Evidence

There is no need to "negate every possibility of the existence of the best evidence", when choosing to rely on secondary (non-best evidence).[1]

It is often only necessary to show that the best evidence was "impossible or highly inconvenient to produce the original".[2]

Generally, there should be no categorical division between primary and secondary evidence as it relates to documentary evidence. The difference in the evidence will normally be a matter of weight.[3]

  1. ↑ R v Duncan, 2016 ONSC 1126 (CanLII), per Code J, citing Lederman, Bryant, and Fuerst, The Law of Evidence in Canada
  2. ↑ Duncan, ibid.
  3. ↑ Duncan, ibid.

History

The BER has its origins in the 1700s and up until the 19th century was seen as a fundamental precondition to admissibility of all evidence.[1] The rule was later limited only to documentary evidence and was often referred to as the "documentary originals rule".[2] The standard rule was that nothing short of the original copies must be produced.[3]

The traditional view is that only the "best proof" should be accepted.[4]

The older rule went so far as requiring a signature on a given document or else it would be deemed a copy.[5]

Where the original has been established as destroyed, a copy will suffice.[6]

  1. ↑ R v Burton, 2017 NSSC 3 (CanLII), per Arnold J, at para 21 citing McWilliams Canadian Criminal Evidence
  2. ↑ Burton, ibid., at para 21
  3. ↑ R v Marino (1975), 22 CCC (2d) 377 (ONCJ(*no CanLII links) }
    R v Guyot, 1926 CanLII 583 (MB CA), , [1927] 1 DLR 19
    Gunn v Cox, 1879 CanLII 34 (SCC), , 3 SCR 296
    General Host Corp v Chemalloy Minerals Ltd. et al., 1972 CanLII 418 (ONSC), (1972), 27 DLR (3D) 561
  4. ↑ Burton, supra, at para 26
  5. ↑ Nodin v Murray (1812), 170 ER 1363
  6. ↑ R v Swartz, 1977 CanLII 1925 (ONCA) affd at [1979] 2 SCR 256

Use Cases

Video Tape Evidence

The rule does not preclude the admission of viva voce evidence of persons who viewed a video that was not in evidence.[1] there is similarly no prohibition against oral testimony as to the contents of the untendered record.[2]

  1. ↑ R v Pires, 2012 ONCJ 713 (CanLII), per Nakatsuru J - police view a surveillance video that was not seizable
    See R v Pham, 1999 BCCA 571 (CanLII), , [1999] BCJ 2312 (BCCA), per Braidwood JA, at paras 18 to 25
    R v After Dark Enterprises Ltd., 1994 ABCA 360 (CanLII), , 94 CCC (3d) 574 (Alta. C.A.), per Kerans JA (3:0)
    Kajala v Noble (1982), 75 Cr. App. R. 149 (Q.B.D.) (UK)
    R v JSC, 2013 ABCA 157 (CanLII), per curiam, at paras 14 to 16
  2. ↑ R v Duncan, 2016 ONSC 1126 (CanLII), per Code J, at para 28

Electronic Records

See also: Electronic Documents and Records

Section 31.2 creates a statutory exemption to the BER in connection with electronic documents on the basis of proof of integrity.[1]

Text messages

As a general rule, the best evidence rule does not require that the Crown admit a certified copy of text messages as they are found in the service providers' databases.[2]

The officer's failure to seize and analyze the accused's phone or seek out service provider records does not normally amount to negligence.[3]

The taking of low quality screen shots of the screen of a witnesses phone, while permitting the owner to delete the text messages afterwards can be problematic, but are not necessarily a bar to the admission of the texts.[4]

  1. ↑ see R v Moon, 2016 ABPC 103 (CanLII), per Cummings J
  2. ↑ R v Burton, 2017 NSSC 3 (CanLII), per Arnold J citing Ghotra, at para 148
  3. ↑ Burton, supra, at para 29
    R v Burns, 2014 NSSC 436 (CanLII), per Rosinski J, at paras 112 to 115
  4. ↑ Burton, supra, at paras 4 and , at paras 32

Admissibility of Copies

At common law, there is no requirement that the party seeking admission must provide notice, an affidavit or certificate authenticating that it was made by the person who made the copy.[1]

Copied records from production orders are deemed to be originals under s. 487.0192(5), (6).[2]

  1. ↑ R v Clarke, 2016 ONSC 575 (CanLII), per Allen J, at para 37 (“ The common law requires neither notice nor an affidavit nor a certificate attesting to the authenticity of the record or attesting that it was made by the person who made the copy. As a general principle, in deciding whether at common law a statement or record can be admitted, the authenticity and the creator of the record must be proven by evidence on the admissibility inquiry.“)
  2. ↑ see Production Orders

See Also

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