Admissibility

• Author: Gerald Chan/Susan Magotiaux
• Pages: 213-249

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Admissibility

8

I. Introduction.............................................. 214

II. Authenticity .............................................. 214

III. Best Evidence Rule ........................................ 225

IV. Expert Evidence ........................................... 231

V. Hearsay ................................................. 238

VI. Conclusion .............................................. 245

Appendix 8.1 Canada Evidence Act, ss 31.1 to 31.8................... 247

© [2022] Emond Montgomery Publications. All Rights Reserved.

 Part III Use of Evidence

I. Introduction

In Chapter 1 it was made clear that an ever-increasing amount of information is being

digitized and stored. This creates a treasure trove of information not just for police

and the Crown, but also for defence who are seeking to adduce exculpatory evidence

in a criminal trial. Whether and how this information can be used in a courtroom,

however, raises its own set of challenges. Many of our rules of evidence date back

hundreds of years to a time when little if anything was recorded and stored, let alone

stored to the extent made possible by modern computing. Back then, information was

communicated in a courtroom primarily through the viva voce testimony of witnesses

drawing on their imperfect memories. Now, criminal courts are flooded with text

messages, videos, photographs, Facebook page printouts, and all sorts of other digi-

tally recorded evidence. What existing evidentiary rules are engaged by this evidence?

When and how can it be admitted for the trier of fact’s consideration? This chapter

reviews these questions and highlights the main arguments and authorities of which

both Crown and defence counsel need to be aware.

II. Authenticity

A threshold issue that arises with digital evidence is authenticity. Authenticity is

often taken for granted with physical evidence, but the digitization of information has

made it easier for individuals to alter or doctor data. As one judge put it, electronic

documents are “much more malleable than ordinary documents.”1 Thus, before such

evidence is admitted, the courts will often have to ask: “Is this document or record

what it actually purports to represent?” Answering this question will not determine

ultimate admissibility—even an authentic document can be inadmissible pursuant

to other evidentiary rules (e.g., hearsay).2 But authenticity is a necessary precondi-

tion to admissibility. The onus lies on the party tendering the evidence to establish

authenticity.3

At common law, authenticity requires some evidence to support the conclusion

that the thing actually is what the party presenting it claims it to be.4 Section 31.1

of the Canada Evidence Act (see Appendix 8.1) enshrines the same standard for the

1 R v Nde Soh, 2014 NBQB 20 at para 23.

2 R v Seruhungo, 2015 ABCA 189 at para 32.

3 Nde Soh, supra note 1 at para 26; R v Avanes, 2015 ONCJ 606 at para 37; R v Andalib-Goortani,

2014 ONSC 4690 at para 27; David M Paciocco, “Proof and Progress: Coping with the Law of

Evidence in a Technological Age” (2013) 11:2 CJLT 181 at 204.

4 Regina v Donald, 1958 CanLII 470, 121 CCC 304 at para 7 (NBCA); Nde Soh, supra note 1 at

para 26; Avanes, supra note 3 at paras 37, 40; R v Hirsch, 2017 SKCA 14 at para 18.

© [2022] Emond Montgomery Publications. All Rights Reserved.

Chapter 8 Admissibility 

authentication of electronic documents (the definition5 of which is broad and includes

audio and video recordings stored in a computer system):

Any person seeking to admit an electronic document as evidence has the burden of

proving its authenticity by evidence capable of supporting a finding that the electronic

document is that which it is purported to be.6

This is not a high threshold.7 If it is met, then the evidence is admissible. This does

not mean that there can no longer be a dispute as to whether the presented evidence is

in fact what it claims to be. It just means that any remaining dispute goes to the weight

of the evidence, which is a determination left for the trier of fact. As Paciocco J (as he

then was) explains in his influential article, “Proof and Progress: Coping with the Law

of Evidence in a Technological Age”:

[T]he law prefers to see disputes about authenticity resolved at the end of a case, not at

the admissibility stage. Disputes over authenticity tend to turn on credibility, and cred-

ibility is best judged at the end of the case in the context of all of the evidence. “Authen-

tication” for the purposes of admissibility is therefore nothing more than a threshold test

requiring that there be some basis for leaving the evidence to the fact-finder for ultimate

evaluation.8

Digital evidence can be authenticated not just by direct evidence, but also by cir-

cumstantial evidence. CB provides a useful example of this principle in action.9 In

that case, the defence sought to cross-examine the complainant with photographs of

screenshots of text messages located on the accused’s cellphone, which the accused

had provided to his mother. The complainant did not agree that she authored the

5 Canada Evidence Act, RSC 1985, c C-5. Section 31.8 defines “electronic document” to mean any

data that is recorded or stored on any medium in or by a computer system or other simi-

lar device and that can be read or perceived by a person or a computer system or other

similar device. It includes a display, a printout or other output of that data.

See discussion of the breadth of this phrase in Paciocco, supra note 3 at 194-96; and Nde Soh,

supra note 1 at para 21.

6 Canada Evidence Act, s 31.1.

7 R v CB, 2019 ONCA 380 at para 67; R v Ball, 2019 BCCA 32 at para 70; Avanes, supra note 3

at para 56.

8 Paciocco, supra note 3 at 197. See also R v Butler, 2009 ABQB 97; R v KM, 2016 NWTSC 36

at para 59.

9 CB, supra note 7 at para 68. See also Ball, supra note 7 at para 70; R v Colosie, 2016 ONSC 1708

at para 25 (Sup Ct J); Avanes, supra note 3 at para 66; R v Bulldog, 2015 ABCA 251 at para 35; R

v James, 2015 ONSC 3902 at para 35; Hirsch, supra note 4 at para 18; Paciocco, supra note 3 at

197-98.

© [2022] Emond Montgomery Publications. All Rights Reserved.