Canadian Criminal Evidence/Documentary Evidence

Introduction

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

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

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

• tape recordings
• video tapes
• microfiche
• computer records

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

Admissibility

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.

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. Execution may be proven by inference.

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.

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.

Best Evidence Rule

Where the contents of a document are material to the case, the 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.

In general, secondary evidence is admissible where the original was lost or destroyed accidentally or in good faith.

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

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] .

The rule does not preclude the admission of viva voce evidence of persons who viewed a video that was not in evidence.

Admissibility of Specific Types of Documents

Any document can be admitted without proof where the opposing party consents. 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

Types of Documents

• Public and Judicial Documents
• Private Documents
  • Business Records
  • Financial Institution Records

Electronic Documents

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 section, instead, have the effect of deeming electronically produced documents as "best evidence" (see s.31.1 and 31.2).

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

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.

Authentication

The burden is upon the party tending the electronic document to prove its authenticity. (s.31.1)

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

• "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)

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";
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".
3. that "the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it"; 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."

Admissibility

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:

• CEA business records,
• CEA financial records,
• common law business documents,
• principled exception to hearsay, or
• real evidence

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

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."

See also: R. v. Nardi, 2012 BCPC 318 (CanLII)

Misc Issues

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."

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.

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

Documents Found in Possession of Accused

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.

Signatures

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".

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.

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”.

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 Documents

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.