Governments increasingly are putting official documents online without any paper ‘original’ or equivalent. Does that present challenges in practice for proving those documents?
What is your experience producing in court or generally under the evidence statutes official government documents that appear only online?
There is good statutory support for producing documents ‘printed’ by government, sometimes by class of document but sometimes as broad as ‘other public document’.
Will courts accept a printout of a web page (or, I suppose, a live in-court online presentation of a web page) showing a government URL as being ‘published by the Queen’s Printer’, at least in the absence of evidence to the contrary? Will courts accept online publications as ‘printed’ for this purpose?
Section 25 of the Ontario Evidence Act says this:
Copies of statutes, etc.
25. Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be printed by or under the authority of [a government in the Commonwealth] shall be admitted in evidence to prove the contents thereof.
Section 21 of the Canada Evidence Act is less fussy about printing, but fussier about the source and maybe about the nature of the document:
Proclamations, etc., of Governor General
21. Evidence of any proclamation, order, regulation or appointment, made or issued by the Governor General or by the Governor in Council, or by or under the authority of any minister or head of any department of the Government of Canada … may be given in all or any of the following ways:
(a) by the production of a copy of the Canada Gazette, or a volume of the Acts of Parliament purporting to contain a copy of the treaty, proclamation, order, regulation or appointment, or a notice thereof;
(b) by the production of a copy of the proclamation, order, regulation or appointment, purporting to be published by the Queen’s Printer;
[and further provisions about treaties and about documents certified by a public official. I am interested in admission of documents without having them personally certified by a custodian.]
I read (b) as meaning that the copy has to be published by the Queen’s Printer, not just the official document. Is that right? In any event, is the printout of the official online document a copy for this purpose?
Would it help answer the question to refer to the electronic document provisions of the statutes – s. 34.1 for Ontario, s. 30.1 for Canada? (They reproduce essentially the Uniform Electronic Evidence Act rules.) They address authentication issues and the best evidence rule but do not expressly apply to the official documents rules.
Should the statutes be amended to keep pace with governmental practices?
I am aware of Ontario and federal statutes about proof of official law found online – statutes and regulations. (They appear of course in print as well.) My question is about other official documents.