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.)