Canadian Evidence Law and Best Evidence Rules: How Lawyers Should Respond to the Challenges of the Digital Age

The common law best evidence rule requires that the evidence presented in court must be original, unless the parties are unable to provide the original; At this point, the court may accept secondary copies, provided that the court is satisfied that the original has been lost, destroyed, or unavailable. The purpose of the common law best evidence rule is to ensure the integrity of documents.

This rule originated in the era before the emergence of computers and copiers, when all copying work was done manually. Some people criticize that this rule has lost its purpose. In the world of computers and digital photos and files, it is difficult to determine which copy is the original.

Section 31.2 (1) of the Canadian Evidence Act pertains to the best evidence rules for electronic documents. Section 31.2 (1) is as follows:

31.2 (1) The best evidence rule for electronic documents meets the following conditions: (a) Proof of the integrity of electronic document systems recorded or stored in electronic files; Or (b) if the evidence established under section 31.4 is presumed to apply.

This section stipulates that as long as there is evidence that the electronic system is in normal working condition when generating electronic files, the electronic files will be considered reliable.

Normally, lawyers attempting to introduce electronic documents in court will need to summon witnesses or provide written evidence to prove that the electronic system was in normal working order at the time of generating the electronic documents. For example, a lawyer needs to summon a witness to testify that her phone was in normal working condition when she took a screenshot of a text message.

Source: Shen Law Firm