Case Law and the Evidence Acts in Canada

By Phillips, P. Fern | Records Management Quarterly, April 1995 | Go to article overview

Case Law and the Evidence Acts in Canada

Phillips, P. Fern, Records Management Quarterly

Documents, in any format, are the most common form of real evidence, but the admissibility of them in court cases is open to interpretation.(1) Business information contained in new technological databases is especially vulnerable to interpretation of evidence law. There appears to be an increasing trend to allow the trial judge discretionary powers for admissibility of documents in Canada.(2) Evidence may currently be heard in court that used to be inadmissible and the ruling as to its admissibility will be made at the time it is heard. This trend is encouraging to document managers and business managers because it allows more flexibility in admissibility requirements.

Change is the rule in evidence law. Change in social values has had a strong influence on change in evidence law, and rapid technological change stretches the evidence law boundaries.

Criminal law involves the government versus the people, civil law involves people against people. Generally speaking, the Federal Evidence Act applies to criminal law and the Provincial Evidence Acts to civil law.(3)

This article reviews the historical issues of admissibility of documents, the case law addressing admissibility, and general requirements for admitting documents as evidence. The review concentrates on civil cases, but an introduction to change in criminal law is relevant because the change influences civil law. "The rules of evidence that we are familiar with originated in the criminal context, and that is where they tend to develop and change."(4) Although business records are primarily involved in civil cases, they may at times have to meet requirements of evidence in criminal cases.


The nature of the information contained on new technology violates the traditional theories behind evidence rules. Introducing information housed in new technology means introducing dynamic information which has a life of its own, which manages a company's work flow providing a highway between departments using different databases in a quantum leap of change in the management of information. The flexibility of managing information on new technology can cause traditional admissibility requirements to have little application.(5)

Examples of business applications exploiting new technology include large interactive systems containing all the corporate personnel or accounting information, where different programs supply different parts of the available information and Local Area Networks (LANs) which connect terminals across geographical and temporal boundaries. Ephemeral information is electronically captured through technology, for example, when recorded messages become part of the corporate information collection through the use of answering machines and when deleted electronic mail or floppy disk files can be recovered and admitted to court.

Multi-media use in business applications complicates the admissibility of future business records because issues of personal rights violations are being addressed in criminal courts in relation to these technologies. Visual evidence presented through multi-media technology is "too real" to allow traditional objectivity as well as making it easy to manipulate the audience.(6) The nature of the presentation of the information changes the message through graphic representation which causes the jury to exaggerate the consequences of the crime. Objectivity, a requirement of our justice system, is violated and judges encounter conflict with communications professionals over admissibility of multi-media produced information because they take steps to reduce the impact of such evidence.

Business technology, on the other hand, gives corporations a strategic edge, better customer service, faster time to markets and increased organizational competitiveness. New technology provides corporations with practical ways to handle information, and there are strong campaigns to incorporate them in day-to-day business operations. …

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