Criminal Law Notebook

Best Evidence Rule

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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]

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.[3] There is some suggestion that a lack of original will merely go to weight.[4]

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] [5].

The BER does not normally prevent a party from testifying as to the contents of a lost or non-seized video.[6]

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.[7]

Purpose to the Rule
The rule's original purpose was "simply to avoid fraud and forgery".[8]

  1. ↑ See R v Betterest Vinyl Mfg. Ltd, (1989) 52 CCC 3d 441 (BCCA)(*no CanLII links)
    See R v Swartz (1977), 37 CCC (2d) 409 (Ont. C.A.)(*no CanLII links) affirmed 1979 CanLII 38 (SCC), [1979] 2 SCR 256
  2. ↑ R. v C.L., 2017 ONSC 3583 (CanLII) at para 23
  3. ↑ See R v Donald (1958) 121 CCC 304 at 306 (NBCA)
    R v Galarce, 1983 CanLII 2281 (SK QB), (1983) 35 CR 3d 368 (SKQB)
    R v Torres, 2012 ABPC 69 (CanLII), at para 58 (“Courts across the common law world have long recognized that in many cases the ‘best evidence rule’ is outdated given the ubiquity of...digital record keeping and transmission.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 (ON CA) (“any strict interpretation of this principle has long been obsolete”)
  4. ↑ 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
  5. ↑ s.29 CEA
  6. ↑ After Dark Enterprises, supra 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.")
  7. ↑ After Dark Enterprises, supra
    R v JSC, 2013 ABCA 157 (CanLII) at para 14
  8. ↑ 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.")

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 (ON CA), (1996), 31 OR (3d) 161 (ONCA)
    see also R v Ghotra, [2015] OJ No 7253 (ONSC)(*no CanLII links) per Durno J.
    R v Burton, 2017 NSSC 3 (CanLII) at para 26 citing Ghotra
  2. ↑ Ghotra, ibid. at para 125 per Durno J.
    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), 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 traditional view is that only the "best proof" should be accepted.[3]

  1. ↑ Burton, supra at para 21 citing McWilliams Canadian Criminal Evidence
  2. ↑ Burton, ibid. at para 21
  3. ↑ Burton, supra at para 26

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]

  1. ↑ R v Pires, 2012 ONCJ 713 (CanLII) - police view a surveillance video that was not seizable
    See R v Pham, 1999 BCCA 571 (CanLII), [1999] BCJ 2312 (BCCA) at paras 18 – 25
    R v After Dark Enterprises Ltd. 1994 ABCA 360 (CanLII), (1994), 94 CCC (3d) 574 (Alta. C.A.)
    Kajala v Noble (1982), 75 Cr. App. R. 149 (Q.B.D.)
    R v JSC, 2013 ABCA 157 (CanLII)

Electronic Records

See also: Electronic Documents

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)
  2. ↑ R v Burton, 2017 NSSC 3 (CanLII) citing Ghotra at para 148
  3. ↑ R v Burton, supra at para 29
    R v Burns, 2014 NSSC 436 (CanLII) at paras 112 to 115
  4. ↑ Burton, supra at paras 4 and 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) at para 37
  2. ↑ see Production Orders

See Also

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