Documentary Evidence

Three Categories Public Documents Proven by copies (the originals too important, must be kept) Evidence of the facts stated (POTOC) against all, not just the party to whom they relate Self authenticating

Three Categories Judicial Documents Self authenticating Proven by Copies (certified, signed by Clerk of Court)

Three Categories Private Documents Generally proven by originals Admissible for POTOC against parties to whom they relate as admissions

Requirement of Authentication Ie. “prove” the document by having it identified as what it purports to be, including a correct copy of the original (whether they prepared the original or merely compared the two) In certain cases, this can be accomplished by mere production of the document This is referred to as “self-authentication”

Self-Authentication means that the document is identified without viva voce evidence

Questions to Ask One, has the document been proved that it is what it purports to be? Two, is it a true copy of the original? Three, to what extent are the contents in for POTOC?

Best Evidence Rule “there is but one general rule of evidence, the best that the nature of the case will admit” The early incarnation of the Rule excluded hearsay, secondary evidence, and proof of documents by non-attesting witnesses The early framers of the Rule were concerned about fraud, perjury, error in transcription

Now We admit all relevant evidence (subject to other rules) We do not confine ourselves to the best evidence Lord Denning: the “goodness and badness of it” goes to weight

Best Evidence Rule is now a rule of WEIGHT, no longer ADMISSIBILITY Because it is a rule of WEIGHT, it is still a good idea for the proponent to explain to the TOF, through admissible evidence, the reason for the production of secondary evidence (ie. a copy of the documents rather than the original)

Example For example: (a) The original was lost or destroyed (could not be found by reasonably diligent search); (b) All originals are routinely destroyed after one year, and only a scanned copy is kept digitally; (c) The original is in the hands of an opposing party, no ability to produce, or a non-party not in the control of the proponent.

Otherwise You have left yourself open to the opposing party asking that the document be discounted, or given less weight due to the absence of the original, or worse yet, an adverse inference, as to a nefarious reason why the proponent does not produce the original (ie. because the current copy has been altered!)

But Not Admissibility Sopinka “there is no requirement to account for copies before oral evidence can be admitted” where there is proof of forgery the Court will obviously attach little, if any weight, to anything other than the original; so also if the copy adduced in Court is illegible.

Note Copies of Public Documents are allowed without explanation Usually require Exemplification, Certification The Public Body must keep the original for obvious reasons Copies of Business Records, Upon Authentication Under Oath (albeit by Affidavit) will be allowed (certifies true copies) see s. 29 and 30 CEA

Documents Admissible Without Proof p Public and Judicial Documents Self-authenticating based on their inherent reliability (open for public inspection) and the inconvenience of producing the (public) author Copies allowed At common law and statute Domestic judicial records are certified by the Clerk or other Court Official

Notes on s. 23 CEA “evidence of any proceeding or record” Pleadings, judgments, transcripts. Admissible as proof of fact these proceedings occurred, with this judgment etc. Does not get around hearsay rule (ie. avoiding testimony of witnesses who testified previously, as a general rule).

Further Notes on s. 23 Our courts, Great Britain, U.S. Unlike statutes, should be marked as exhibits.

See ss. 23 and 24 CEA (certified copy/exemplification) Note CEA requires reasonable notice by proponent (not less than seven days – rule of admissibility, proof by this manner) However, common law has no such notice requirement These sections of CEA exist expressly along with common law and not in derogation thereof: s. 36 Therefore, if proponent misses notice period, rely on common law

Note: Notice Requirement s. 28 CEA reasonable notice required, at least 7 days a matter of admissibility! Relates to ss. 23 – 27 CEA

However CEA does not replace common law methods of proof (nor does AEA) Common law does not have notice requirement Pursue admissibility in alternative Example of availability of common law: proof of disqualification for s. 259 CCC

Other self-authenticating Docs Certified Public Docs: s. 24 Becomes exhibit on production does not require witness

See s. 44 AEA Proof of foreign (Commonwealth or US) foreign judgments decrees or other judicial proceedings Proof by exemplification/seal of Court without proof of authenticity thereof of Court marking

Records of Government Departments Not self-authenticating, but short-cut for proof See s. 26 CEA allowing copies of entries with “Affidavit” of officer/record-keeper etc. Compare s. 33 AEA

Brief Summary: Public/Judicial Documents Proof in first aspect: authentication by mere production Proof in second aspect: accuracy of copy proved by certification/exemplification/seal Proof in third aspect: POTOC? Generally yes. E.g. Death certificate, proof of death.

Note Although accepted as proof, they are at best accepted as prima facie proof and are subject to other evidence on the point ie. being accepted as POTOC, just means they are not hearsay, it does not mean that the TOL is directing the TOF to accept them as fact

Private Documents Before a private document may be admitted, more than its mere production is required Authentication provides some proof that it is what it purports to be Proof of execution (authorship) makes its contents admissible against a party litigant author (admissions of party are hearsay exception) Proof of agency or authority may make the document signed by individual “A”, proved to be the authorized signatory of company “B”, and signing on behalf of “B”, admissible against “B”

Note Wigmore: if a document lacks a signature, no rule of evidence prevents its execution from being proved in another way After all, the contents themselves may indicate who the author is In the case of a document executed by a corporation, the corporate seal may be proven by anyone who can recognize it, and proof is not limited to those who saw the seal affixed The corporate seal will be presumed to have been affixed by the proper person, although this may be rebutted (proof of absence of authority)

Note However, that sometimes the substantive law (for example, Wills Act) require proof of attestation to have effect Therefore, your constituent statute may have to be referred to see what is required The actual attestee(s) may therefore have to be called

Private Documents: POTOC? It Depends upon proof of authorship and execution, the extent to which the document is admissible to prove the facts stated therein depends on the nature of the statements contained in the document. If the contents are wholly inadmissible, the document cannot be admitted into evidence, even if the preliminary aspect of proof has been satisfied, that is, the document is what it purports to be. Some statements in the document may, however, be admissible while others are not, in which case the document is admitted in evidence, but only the admissible facts are properly before the Court.

Two functions of Documentary Evidence Tendered as: (a) Proof of its contents, or (b) As original evidence, (such as identity, intention, knowledge).

General Rule: If a document is being relied on by the proponent as proof of the truth of its contents, even if authenticated through a witness, the contents itself are subject to secondary exclusion through the hearsay rule. If, of course, the authenticating witness themselves are the author of the document, while the hearsay rule may be satisfied, other rules may come in to play – for example, if it is simply their previous written statement regarding the matter, why do they not simply testify to their recollection as the law generally requires?

Major Hearsay Exception: Admissions of a Party (POTOC) So where the document is allegedly authored by a party litigant (accused, complainant, Plaintiff, Defendant), the authenticating witness identifying it as such (on a some evidence standard), is sufficient for the document to be entered for the proof of the truth of its contents. Why? The hearsay concerns are satisfied. The author is before the Court as a party litigant. You are being held to your own words. Take the stand and deny them/qualify them as you wish.

Other POTOC exceptions: Banking Records s. 29 CEA allows authentication by Affidavit Copies allowed Note non-compellability rule 29(5) (except with leave) where bank is not a party In for proof of truth

Requirements Ordinary course banking record (“ordinary book made in ordinary course of business”) Book/record in custody/control of financial institution Copy is a true copy

29(3) Proof of “no account” by Affidavit “Shall be admitted in evidence as proof, in the absence of evidence to the contrary, that the person has no account …” A mandatory, but rebuttable presumption

Banking Records See s. 41 AEA for a similar provision

Business Records: Another POTOC Exception Records made in the usual and ordinary course of business are admissible for the proof of the truth of their contents on proper authentication. Policy: they are the “best evidence”, and cannot leave business at a standstill while multiple employees are subpoenaed.

s. 30 CEA Allows authentication by Affidavit: see (3) proof of true copy Note notice requirement 30(7) seven days before production – rule of admissibility

Note (10) business records rule does not trump other rules of admissibility (10) does not apply where record made in CONTEMPLATION OF LITIGATION Common law still available to get records in: see Ares v. Venner

AEA – business record provision? No, so …. Common law Ares v. Venner

Note If you have the record keeper there, do you need these provisions? Testimony through Affidavit where allowed, or oral otherwise, testimony as to “ordinary course” makes the contents of the record admissible for proof of truth, even if witness couldn’t testify to contents.

As Original Evidence: Examples (non- POTOC) To show knowledge of the contents on behalf of the party possessor: “I didn’t know the corporation was floundering financially, I had no motive to doctor the prospectus.” Proponent calls evidence of financial records found in that parties’ possession indicating otherwise – again, whether the documents are true or not, possession goes to knowledge

But In civil and criminal proceedings, a document found in the actual or constructive possession of an accused constitutes circumstantial evidence of knowledge or the content or connection with the document. The document is not admissible to prove the truth of its contents unless the possessor has recognized, adopted or acted upon it.

As Original Evidence: Further Examples (non-POTOC) Complicity/Co-Venture/Conspiracy (the value of the documents is in the fact of communications establishing the relationship between the conspirators, what they in fact say in the documents makes little difference as to whether it is true) Intent, Motive, State of Mind Circumstances at the Crime Scene: ie. These Documents were found (mail addressed to party litigant)

As Original Evidence: Further Examples (non-POTOC) Authorship: ie. To establish who the author is of an important document to the facts in issue, other documents, of known origin can be authenticated and admitted, where the truth of the contents does not matter, but their value is rather in being a comparison handwriting.

Special Areas of Authentication: Handwriting The question in the common law was whether handwriting comparison was a matter for witnesses to draw for the TOF, or for the TOF to draw in their own comparison. Also, where witnesses completed the comparison, did they need to be experts?

Sopinka p Except where judicial notice is taken of official signatures or where an apparent or purported signature is deemed by statute to be the actual signature, the handwriting or signature of unattested documents may be proved by: (1) the writer (2) a witness to the actual writing (3) an admission by the party against whom the document is tendered (4) a witness with general knowledge of the subject handwriting (5) a lay comparison between the disputed writing and a proven writing (6) expert evidence.

Handwriting S. 8 CEA allows laywitnesses to testify to that comparison R. v. Abdi (1997) 116 CCC(3d) 385 (Ont. C.A). Stands for: (a) At common law, the TOF could compare handwriting without expert assistance provided a properly proven or admitted standard; (b) s. 8 CEA does not oust the operation of the common law rules; (c) s. 8 CEA permits a lay or expert witness to give opinion evidence of handwriting by comparison of disputed with known handwriting; (d) It also does NOT preclude the TOF from making comparisons, in the absence of witness testimony, concerning the genuineness of the disputed writing; (e) A TOF may make unassisted comparisons to determine authorship of disputed handwriting, they should be instructed by the TOL about the absence of assistance, the need for care, the difficulties of comparison in the circumstances, the quality of the known sample, and other factors that may affect weight.

A laywitness, already familiar with the writing at issue, can give an opinion without the production of a writing standard