Canada Evidence Act – s. 31 Does Not Stand Alone

Karen-Fair

Paralegal Karen Fair summarizes a recent Ontario Court of Justice decision that considers whether and for what purpose electronic evidence may be admitted.

In R. v. Mondor, 2014 ONCJ 135, Justice Mara Greene determines whether section 31 of the Canada Evidence Act allows the admission of electronic evidence for truth of its contents without complying with section 30 or some other common law hearsay exception for the truth of its content.

Mondor was charged with accessing child pornography. At trial, the Crown sought to admit purchase orders/invoices as business records for truth of their contents. Mondor was alleged to be a customer of AZOV Films, a film company that had a website promoting the interests of “naturalists.” Using the AZOV Films’ computers, the police were able to re-create purchase orders/invoices that were said to indicate that the defendant had purchased the child pornography. The Crown also submitted credit card statements indicating that Mondor has purchased the films.

When Electronic Evidence is Real Evidence

In considering the admissibility of electronic evidence, Justice Greene refers to “Electronic Evidence in Canada,” by Graham Underwood and Jonathan Penner:

[The authors] provide a broad definition of electronic evidence, including all electronically stored data, but then focus the definition by classifying the electronically stored information (ESI) as either real or documentary evidence. This classification then guides the admissibility analysis. Where electronically stored data is recorded electronically by an automated process, then the evidence is real evidence. Where, however, the electronically stored information is created by humans, then the evidence is not real evidence, and is not admissible for its truth absent some other rule of admissibility.

Justice Green goes on to quote the authors directly:

    “ESI that is created by humans to record their observations or statements is not real evidence when introduced as evidence of those observations or statements. For example, business records that store information that comes from human observers, even though the records may be stored as ESI, will not constitute real evidence when introduced for the truth of their contents.”

Since humans effectively created the purchase orders/invoices on which the Crown wanted to rely, the hearsay rules apply. Therefore, the purchase orders/invoices are classified as documentary evidence. To be admissible, they could be admitted only under a hearsay exception.

Mechanism & Purpose

Justice Greene determined that section 30 of the Canada Evidence Act provides “a mechanism to admit business records into evidence for the truth of their contents.” In addition, Justice Greene determined that section 31 describes the process that needs to be followed to admit an electronic document into evidence. It does not indicate for what purpose the electronic document may be admitted. Section 31 focuses on addressing the best evidence rule. Justice Greene found that section 31 does not allow for the admission of hearsay evidence.

    “Section 31, in my view, does not allow for the admission of hearsay evidence contained within an electronic document just because it is in electronic form. The applicant must first establish that the hearsay is admissible either under section 30 or some other mechanism.”

The Crown sought to have the electronic documents admitted under the “admission against one’s interests” exception to hearsay. Justice Greene determined that there was “insufficient evidence of identity to admit the documents in question into evidence as an admission against interest” because the Crown did not point to specific evidence that the accused had created the documents.

Related Cases and Information

  • Canada Evidence Act, R.S.C. 1985, c. C-5, ss.30-31
  • R. v. Lemay, 2004 BCCA 604 (CanLII)
  • R. v. Wilcox (2001), 152 C.C.C. (3d) 157, 2001 NSCA 45 (N.S.C.A.) (CanLII)
  • R. v. Nardi, 2012 BCPC 318 (CanLII)
  • R v. Beauchamp, [2009] O.J. No. 941 (SCJ)
  • R. v. Marini, [2006] O.J. No. 4057 (SCJ)
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