The Ontario Court of Justice recently had the occasion to consider the admissibility of evidence taken from smartphones in a drug smuggling case. Admission of the evidence was challenged on a number of grounds, mainly involving the application of sections 31.1 through 31.8 of the Canada Evidence Act (CEA) on evidence from computers. The Court held that the evidence was admissible. In my view, the Court got it right.
The three accused men in R. v. Avanes et al., 2015 ONCJ 606 (CanLII), had communicated with each other by Blackberry. The evidence sought to be admitted included (para 8)
photographs, contact lists with phone numbers, phone call logs and the substance of SMS text messages and Blackberry “PINs” (an instant messaging system that allows users to send each other typed messages which employs each device’s unique PIN).
The prosecution readily satisfied the Court of the chain of custody of the data, from the phones to the special lab in Ottawa that by-passed the encryption, to the courtroom. The question was one, or rather several, of authentication and best evidence.
1. Do the rules in the computer-evidence sections of the CEA apply only to questions of hearsay?
Held: No (para 45 – 46). The Crown submitted that the rules did not apply to authentication but only to hearsay. The Court made appropriately short work of that argument. Nothing in the ‘documentary evidence’ part of the CEA (sections 19 – 36) justified such an assertion. All documentary evidence needed to be authenticated. Authentication did not remove the requirement that the authenticated evidence had to be found admissible under some separate principle of evidence law, but it was a necessary prior step properly dealt with in the statute. (para 77, 81)
I mentioned the position of hearsay in electronic documents in my recent column on the Uniform Electronic Evidence Act, the source of the relevant provisions of the CEA (and many provincial evidence statutes on the point). The hearsay rules are in my view technology-neutral: their application does not depend on the medium on which the information is stored.
The Court in Avanes frequently cites an article by Justice David Paciocco on e-evidence, “Proof and Progress: Coping with the Law of Evidence in a Technological Age” (2013), 11 CJLT 181. Justice Paciocco discusses hearsay at some length (pp 210- 216), but says this (at 211):
The only admissibility issues arising from the fact that relevant information is “computer generated” relate to the accuracy and reliability of the technology that produced the information.
In other words, the use of a computer to generate or store documents raises authentication questions, not hearsay questions.
I believe that the Avanes Court and Justice Paciocco’s article are right on this point.
2. Were the computer-evidence rules of the CEA mandatory?
Held: Yes (para 51, 52). The Crown needed to authenticate all evidence, even ‘real evidence’. Real evidence – here, data taken from a machine – may not be hearsay, depending on the use to be made of it, and thus its admission may not depend on an exception to the hearsay rule. But it still has to be shown to be what it purports to be – or at least support has to be given on which a trier of fact could reasonably find that it is. For e-documents, the CEA sets out the rules to follow.
The Crown also needed to satisfy the best evidence rule according to those provisions. See below.
3. Does the authentication rule in s. 31.1 of the CEA add to the common-law principle on that point?
Held: No (para 55). The CEA merely codifies the existing common-law rule.
The Court noted the source of the CEA rules in the Uniform Electronic Evidence Act. The drafters of the Uniform Act (I chaired the working group that prepared it) wanted to codify the principle because the Canadian common law rule was not as easy to demonstrate in the case law at the time (1998) as it has since become. There was no intention to make the rule tougher. The CEA’s language was slightly different and even clearer than the Uniform Act on that point, according to the Court. (Provincial statutes drawn from the same source should be interpreted the same way.)
The Crown in Avanes had provided ample support for the evidence being what it purported to be, so this test was satisfied.
The Court held that while in theory there may be a “technological gap” between the use of a computer and the information it generates, “that gap is filled by our common experience with modern technology, even though we may not understand how photocopiers, digital telephone systems or personal computers treat and convert digital data into something intelligible.” (para 35) This observation will, if generally accepted (and Justice Paciocco supports it as an example of judicial notice – page 201), make authentication a good deal simpler in cases where there is no serious contrary evidence.
However, this common experience did not extend to the process of “parsing and chipping” done on the data to get it out past the encryption barriers (para 36). It would have been preferable to have expert testimony about it (para 66). Nonetheless, although such expert support was not provided here, other facts sufficed to authenticate the data.
4. Did the Crown satisfy the best evidence rules of the CEA?
Held: Yes (para 61 – 63, 74 – 77). The best evidence rule for written documents traditionally requires the production of an original document, or the version that can be demonstrated to be the next-best available. However, the notion of an original document is very difficult to apply to electronic documents, some say meaningless in that context. Justice Paciocco puts it this way (page 199): “The computerization of documents creates significant ambiguity about what the original is.”
It is difficult because the collection of electrons that constitute an e-document can be in a number of locations in identical form, and one may have no more authority than the other. Even with documents on paper, duplicate originals are all counted as originals for the rule. Electronic documents are normally multiplied far more than paper ones, counting all the back-ups and communications they are subject to.
It is arguably meaningless because electronic copies are perfect reproductions. There is no evidentiary advantage to having one version rather than another. With paper documents, it may be easier to show alterations on “the original” than on subsequent versions. This is not true in the digital world.
It was this issue that led the Uniform Law Conference of Canada to develop the UEEA. It considered abolishing the best evidence rule entirely for e-documents, but decided that some test might be helpful to replace the search for an original. The UEEA shifts the focus from the document itself to the record-keeping system in which it is found. Electronic documents are so process-driven that the system that produces and stores them is key to their reliability. This solution is reproduced in the CEA.
The CEA therefore provides that the best evidence rule for computer-generated documents is satisfied by proof of the reliability of the record-keeping system from which they are drawn. (s. 31.2) However, the UEEA was designed not to create new burdens to the admission of evidence that was not seriously disputed. The best evidence rule itself for paper documents had become, as Justice Paciocco notes (page 199), a “generous gateway to the admission of copies”. The new version was not intended to raise the barrier, just to replace it with something suitable.
The UEEA, and the CEA with it, provides (in s. 31.3) three presumptions that the record-keeping system is reliable. If the e-document comes from a computer within the control of the party wishing to introduce the evidence, the party must provide evidence capable of supporting a finding that the computer was functioning properly, or that any malfunction did not affect the integrity of the document. If the document comes from an adverse party, then that party’s computer is presumed reliable. That party is in a better position than the proponent of the evidence to show its unreliability. Finally, if the document comes from an independent third party in the business of creating such documents for its own business purposes, then it is presumed to come from a reliable system. All the presumptions are rebuttable.
The operation of these presumptions avoid a lot of unnecessary disputes about the integrity of electronic documents. The Court in Avanes quotes Justice Paciocco (at para 63) that the presumption about adverse parties’ documents is often ‘tremendously useful’ to the Crown. And so it turned out in this case: the accused not having brought any proof to the contrary, the product of their Blackberries was presumed to have integrity and to satisfy the best evidence rule.
5. Was the admission of the evidence more probative than prejudicial?
Held: Yes (para 83 – 95). The Court canvassed the probative elements and the nature of prejudice (moral prejudice and reasoning prejudice) and decided that there was little prejudice that was not within the control of the accused to overcome if they had the means to do so.
Given the ubiquity of electronic records in our society over the past two or three decades, it is surprising how few cases have dealt with their admission in evidence. The CEA’s provisions have been invoked from time to time; they are the relevant – indeed, as held in Avanes, mandatory – source of law on authenticating e-documents in any criminal proceeding. Their counterparts in provincial statutes have been less frequently cited. Perhaps the notice-to-admit process in civil proceedings avoids challenges in the courtroom.
That said, it is encouraging to see the courts largely getting them right, as the Avanes court did. The Avanes court even cited (para 46 fn 13) the commentary to the Uniform Act. As the principal author of that commentary, I am inclined to think that is as good a source as the academic commentary on the Uniform Act later referred to (para 59 fn 21). In both instances, the court properly understood and followed the intent of the Uniform Act.
It is clear from comments in Avanes and in the Paciocco article that the law on the admission of computer-generated information is not settled in all its aspects. However, some of the foundational principles are becoming well established, and Avanes is a clear step in the right direction.