Authentication vs Hearsay
The Ontario Court of Justice recently had occasion to consider the different grounds on which documentary evidence might be admitted or not admitted into evidence in a criminal case, in HMQ v Mondor.
Mr. Mondor was charged with accessing child pornography via a web site. The police had reconstituted the web site in order to trace certain purchases to the accused. As a result, the electronic records they used were not business records of the seller of the pornography for the purposes of s. 30 of the Canada Evidence Act. The Crown looked instead to what both it and the court referred to as s. 31 of the Act.
In fact, s. 31 is irrelevant – it deals only with the admission of photographs of business records, and this case involved no such thing.
What the Crown and the court were talking about was the series of provisions on electronic evidence from s. 31.1 to s. 31.8 of the Act. Section numbers with .1, .2 etc. are not subsections of the preceding section, they are whole sections on their own. They are numbered that way so they can be inserted in the right place in the Act when the rest of the sections cannot be renumbered to make room for them. One would have thought that nearly 30 years after this numbering system became standard, courts and lawyers would have figured it out.
In any event, the court correctly decided that those provisions dealt with authentication questions, principally the satisfaction of the best evidence rule. However, the problem with the seller’s records was not that there was better evidence but that they were hearsay. Sections 31.1 through 31.8 (and the Uniform Electronic Evidence Act from which they derive) do not deal directly with hearsay.
The Crown conceded that if the hearsay issue could not be resolved by the sections following s. 30, then the records were not admissible and an acquittal must follow – as it did.
There is some debate in the evidence world whether the laws of hearsay require amendment because of electronic records. My view is that they do not – a business record is a media-neutral concept, as are the other categories of hearsay. Ken Chasse, who recently commented on my last note on e-evidence under the Canada Evidence Act (as reported here on Slaw.ca), thinks that hearsay as well needs adjustment because of the malleability of electronic records. That debate is beyond the scope of this little note (though if he or anyone wants to chime in, they are welcome to do so.)
An interesting question in the chain of evidence: how good is a copy of an ephemeral thing, and possibly an obfuscated thing, where the thing in question is a malleable collection of electrons with no glaringly obvious way to authenticate it.
This is the mirror image of the problem of electronic opinions and snapshots outliving the time and place where they were meaningful. A place like High School, for instance!
–dave
This decision, like the recent New Brunswick decision of R v Nde Soh, 2014 NBQB 20 shows that sec. 30 and the hearsay rule are alive and well.
In this decision, the purchase orders/invoices the police found were clearly hearsay. They were not reliable proof, beyond a reasonable doubt that the accused was guilty. So the judge correctly, as you say, found the records were subject to sec. 31 regarding authenticity, but not exempt from hearsay concerns
In R v Nde Soh, where the key evidence consisted of screen printouts from the victim’s computer, the Court conducted a sec. 31 analysis. It concluded the printouts satisfied the authenticity and best evidence imperatives. The Court then did a hearsay analysis. It found the printouts met the necessity and reliability imperatives for hearsay to be admissible.
Both decisions were correctly decided, in my view. In R v Mondor the facts lined up to keep the evidence out. In R v Nde Soh they lined up to let the evidence in.
For me, the two decisions demonstrate that both sec. 31 and the hearsay rules are functioning well. I, like you John, see no need to modify the hearsay rules to accommodate digital records.
The Nde Soh case was discussed here lately as well.