ADMISSIBILITY OF E MAILS IN CANADA
INTRODUCTION
Computer has changed the way we deal with information and the way we run our business. With computer came technology and it brought along with it internet .Internet gave us an effective tool for communication in the form of e mails. E-mail was one of the first uses of the Internet and is the most popular use. Soon after the dawn of email, its fast and proficient nature began to be used for many illegal purposes. Today even terrorist activities are planned over the internet, making this a means to ensure the scheduling and finishing of various criminal activities that may be planned.
Increasingly, important business information is being formed, stored and communicated electronically. It is estimated that 97 percent of business documents are created electronically and more than 35 percent never reach paper[1]. The increased dependency on electronic data in our day to day lives has raised many problems and issues of concern. When cases came to courts all over the world in relation to criminal activities being carried on through the use of internet, it was found that there were no existing laws that could deal with the issue of email being a source of evidence. Even if various terms that were used in the law were interpreted in the context of electronic evidence, admissibility remained an issue of concern. This article aims to look at the law relating to email as evidence in India, US, UK, and Canada and aims to point out any loopholes that may exist in the law as it exists currently.
E-MAIL IN ELECTRONIC EVIDENCE
Electronic evidence refers to electronic data which is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal case. Electronic mail is the telecommunication of messages from one computer to another[2]. Due to the heavy dependence of many businesses on electronic communications, as much as 80 percent of discoverable communications will be in the form of e-mail because it is often the primary tool for business and personal communications[3].E-mail evidence provides more damaging information. People generally consider that e-mails are similar to telephone conversations and often use emails as an informal means of communication.
CANADA
There are Federal and Provincial laws governing the concept of electronic records in Canada. The detailed analysis of the federal laws governing the same is mentioned below.
Federal Law
At the national level, electronic records in Canada are legitimized by the:
· Personal Information Protection Act and Electronic Documents Act,( applicable with issues of e commerce )
· Uniform Electronic Evidence Act and
· Canada Evidence Act.
Provinces in that is, Saskatchewan[4], Manitoba[5]and Ontario[6]have enacted legislation to recognize electronic documents and signatures. The other provinces are in the process of developing legislation.
Uniform Electronic Evidence Act[7]
The relevant provisions of the Act with regard to electronic records[8] are:
Authentication
3. Subject to this Act or any other Act of [the enabling jurisdiction] or to an exception provided by the common law, the person seeking to introduce an electronic record has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic record is what the person claims it to be.
Best evidence rule
4. In any legal proceeding, the best evidence rule is satisfied in respect of an electronic record on proof of the integrity of the electronic records system in or by which the data was recorded or preserved.
The Act is intended to affect existing law on authentication and best evidence[9] which is the Canada Evidence Act.
Canada Evidence Act
Sec 31 of the Canada Evidence Act, 1985[10], deals with the issue of authentication of electronic documents. It states as follows:
“31.1 Any person seeking to admit an electronic document[11] 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.
Application of best evidence rule -- electronic documents
31.2 (1) The best evidence rule in respect of an electronic document is satisfied
(a) on proof of the integrity of the electronic documents system[12] by or in which the electronic document was recorded or stored; or
(b) if an evidential presumption established under section 31.4 applies.
Printouts
(2) Despite subsection (1), in the absence of evidence to the contrary, an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout.
Presumption of integrity
31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven
Standards may be considered
31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavor that used, recorded or stored the electronic document and the nature and purpose of the electronic document.
Electronic Evidence
Electronic evidence[13] refers to electronic data which is sought, located, secured, and searched with the intent of using it as evidence in a civil or criminal case. Electronic mail is the telecommunication of messages from one computer to another. It is one of the electronic evidence that is widely used in electronic discovery nowadays. There are several traditional rules of evidence which are considered by the courts with regard to any issue of admission of computer records as evidence.
Admissibility of e-mail as evidence
Electronic evidence, as a type of “documentary evidence” must satisfy the same rules as are required for traditional documentary evidence to be admitted into evidence. The same rule applies to e mails as well .It is subject to civil discovery in the same manner as paper documents. The core requirements of admissibility of e mails are:
1. Authenticity of the record
2. Best evidence rule
3. Integrity of the information system
While deciding on the issues of authenticity and integrity (reliability) the court would also consider the location of e mails and identifying the sources of the same.
Authentication of e-mail evidence
To be admissible, evidence must be relevant to an issue that is in dispute. For evidence to be relevant, it must be authentic there must be proof of its source. A general rule[14] of evidence is that the party seeking to introduce evidence, must provide some evidence of authenticity before it becomes admissible[15].In most cases, the dispute is over the meaning of the contents of the message, so authentication is not an issue. But, given the ease with which the original of an electronic mail message can be forged, authentication may present a problem if the other party denies authorship of the message.
Authentication is the process by which the legitimacy, or genuineness, of a document is established[16]. The genuineness of a computer record is shown by proving the reliability of the particular computer used, and the dependability of the procedures to operate it and obtain the printout offered in court. An authenticating witness must also identify the printout as from the computer. In R. v. McMullen[17],' Morden, J.A., for the Ontario Court of Appeal, described the special concern about the authentication of computer printouts as reliability “The nature and quality of the evidence put before the Court has to reflect the facts of the complete record keeping process - in the case of computer records, the procedures and processes relating to the input of entries, storage of information, and its retrieval and presentation. . . As long as there is enough evidence of reliability that a reasonable jury properly instructed could find that the record is what it is purported to be, the judge should admit the printout as authenticated”
A document is relevant only if the document is what it purports to be[18]. E-mails are composed of a “header” and “body”. While the body of the e-mails contains the individual text composed by the sender, the header listing the sender’s name and address, the recipient’s user name and address, the transmission date and time and the subject matter of the mailing. If email is produced by a party from the party's files and on its face purports to have been sent by that party, these circumstances alone may suffice to establish authenticity[19]. Authentication should be made through a knowledgeable witness who can identify the authorship as well as the document’s appearance, contents, substance, internal patterns, or other distinctive characteristics[20]. Given that most e-mails contain certain identifying markers, such as the address from which they were sent, the name of the sender, or a company name, that information, coupled with their production during discovery, should be enough to satisfy the authentication requirements[21].
Best Evidence Rule & Integrity
The best evidence rule is the requirement that the best evidence available be presented to the court. The best evidence which in respect of documentary evidence, means that the original of writing be offered into evidence[22]. If an original is available, a copy is not acceptable as evidence.
When introducing this rule to electronic evidence, the issue which is raised frequently is whether a computer printout is an “original” or a “copy”? The requirement of originality for paper document is applied differently in e-mail evidence. While there have been cases were parties sought to avoid admission of computer print-outs claiming them to be mere copies of the original computer records, courts have generally rejected this argument and admitted the print-outs as original records and not copies[23]. If data are stored in a computer or similar devise, any printout readable by sight, shown to reflect the data accurately, is deemed as “original”[24]. The Canada Evidence Act uses the rule that measures the admissibility of the secondary evidence, or copies, against the “original document”, rather than just a “record made in the usual and ordinary course of business”.
The Ontario Court of Appeal in R. v. Bell[25] held that computer printouts were not merely “copies”, but were in fact “original records”. To admit e-mails into evidence, the proponent must show the origin and integrity of e-mails. He must show who or what originated the e-mail and whether the content is complete in the form intended, free from error or fabrication. In discovery, the proponent needs to prove that the hard copy of the e-mail evidence is consistent with the one in the computer and includes all the information held in the electronic document[26].
The purpose of the best evidence rule is to help ensure the integrity of the record, since alterations are more likely to be detectable on the original. The Act[27] provides a different way to test the integrity of the record: evidence of the reliability of the system that produced the record. System reliability is a substitute for record reliability in case of electronic records.
Reliability of records
Records created in the ordinary course of business are admitted for the truth of their contents. Courts have accepted the necessity of accepting computerized records[28], but they are concerned with reliability. The party seeking to admit the computer record into evidence may be required to introduce evidence reflecting the entire record-keeping process, the procedures and processes relating to the input of entries, storage of information and its retrieval and presentation[29]. Without providing this foundation of reliability, the courts may refuse to admit the evidence even if they are deemed to be business records[30]. But a different view was held by the courts in R. v. Sanghi [31], and R. v. Vanlerberghe[32], in both the cases there appeared to be no foundation evidence concerning the reliability of the computer system.
In the Kinsella v. Logan[33] case, the court held computer generated credit reports to be inadmissible under the New Brunswick Evidence Act[34]since it is impossible to prove if the requirement was met. The problem was that the credit records are updated by erasing the current record and replacing it with a new one. Despite this problem, the court admitted the credit reports using the general principles of necessity and reliability. The evidence should speak to the reliability of the method of input, storage, and output of the system, the reliability of the computer system itself, and reliance on the system. For input reliability, evidence about the manner in which the data was originally entered into the system and measures taken to ensure accuracy of data entered may be required. Information should be entered into the system in the ordinary course of business. This is a question of both the type of information and the timing of its entry. If the system is called upon to prove that something did not occur based on the absence of a record[35], it is important to demonstrate that all records are recorded in addition to the reliability of the records that are entered[36].
Storage reliability is the most important issue for computer record reliability since input and output are often fleeting moments in the life of a record compared to its time in storage. The main issue with storage is alterability both unintentional and deliberate. Computer records are subject to accidental corruption, a phenomenon which is not common in the paper world. Computer records are also intrinsically more prone to untraceable, deliberate alteration. If users are free to modify or delete stored records, the evidential value of a record or the lack of a record would be marginalized. Reliability of storage depends not only on the physical media but also access security. With some media, such as WORM (write once, read many) disks, data cannot be altered once stored. In systems with alterable storage media, the software that controls the media may have access security features preventing accidental or deliberate alteration. By physical media, security systems, or redundant copies, it is important that some level of storage reliability is achieved to ensure that your computer records will have some evidentiary value.
National standard on electronic records as documentary evidence
The Canadian General Standards Board has a standard on Electronic Records as Documentary Evidence (CAN/CGSB-72.34-2005), a National Standard of Canada that outlines the main requirements for ensuring that electronic records generated from electronic information systems are reliable, authentic and trustworthy[37].The standard provides in broad terms policies, procedures, practices and documentation required for establishing the integrity and authenticity of recorded information as an electronic record in an electronic information and records management system.
Conclusion
E-mail is a form of documentary evidence and can be admitted as evidence in court in the same way as can other forms of documentary evidence but the reliability of e-mail evidence is subject to scrutiny. With regard to e-mails since measures to protect the integrity and/or authenticity (like the use of digital signatures or other forms of encryption) are not always used the reliability of e-mail as evidence may be subject to attack.
It is clear that E-mails are legally acceptable as documentary evidence in Canada provided they fulfill certain conditions. The admissibility of any documentary evidence can not be guaranteed and will be judged by the court. Any record regardless of its media (film, paper or electronic) must be proven to be a trustworthy and authentic record and created in the normal course of business. When the conditions as set out in a recognized industry standard[38] are met the probability of acceptability is very high. Email admissibility in court can vary from state to state. And, even if admissible, email evidence is easy to rebuke for several reasons.
[1] G Coumbe, “E-Discovery” (2004) The New Zealand Law Journal at 130
[2] Benjamin Wright: The Law of Electronic Commerce EDI, Fax, and E-mail: Technology, Proof, and Liability
(Boston: Little, Brown & Co., 2nd ed., 1995) at 6.
[3] Paul R. Rice: Electronic Evidence Law and Practice (Chicago: American Bar Associations 2005) at 3.
[4] The Electronic Information and Documents Act, 2000, Statutes of Saskatchewan, Chapter E-7.22.
[5] The Electronic Commerce and Information Act, Chapter E55 Continuing Consolidation of the Statutes of Manitoba (Royal Assent, 18 August 2000). Parts 1, 3, 4, 5 and 7 proclaimed in force as of 23 October 2000.
http://www.gov.mb.ca/chc/statpub/free/pdf/b31-1s00.pdf
http://www.gov.mb.ca/chc/statpub/free/pdf/b31-1s00.pdf
[6] The E-Commerce Act, 2000, Chapter 17, Statutes of Ontario 2000 (Royal Assent, 16 October 2000).
http://www.ontla.on.ca/Documents/documentsindex.html
http://www.ontla.on.ca/Documents/documentsindex.html
[7] http://cryptome.quintessenz.at/mirror/eueea.htm
[8] Sec 1(b) of Uniform Electronic Evidence Act states as follows : "electronic record" means data that is recorded or preserved on any medium in or by a computer system or other similar device, that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data
[9] http://www.ulcc.ca/en/us/index.cfm?sec=1&sub=1u2
[10] http://www.oas.org/juridico/mla/en/can/en_can_loi_preuve.html
[11] Sec 31.8(b)"electronic document" means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data, http://www.oas.org/juridico/mla/en/can/en_can_loi_preuve.html
[12] As per Sec 31.8 of Canada Evidence Act "electronic documents system" includes a computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic documents.
[13] Benjamin Wright: The Law of Electronic Commerce EDI, Fax, and E-mail: Technology, Proof, and Liability (Boston: Little, Brown & Co., 2nd ed., 1995) at 6.
[14] To be admitted as evidence, an electronic message must first be authenticated or identified
[15] In R. v. Petersen (1983), 45 N.B.R. (2d) 271, the Crown offered an anonymous letter, claiming it to be that of the accused. For authentication, the Crown offered evidence that the letter was typed on a typewriter at the accused's residence and the testimony of the accused's brother that he didn't write it.
[16] Alan M.Gahtan: Electronic Evidence (Ontario: Carswell Legal Pubns 1999) at 157
[17] (1979), 47 C.C.C.(2d) 499 (Ont. C.A.) at 506.
[18] Mark D. Robins, “Evidence at the Electronic Frontier: Introducing E-mail at Trial in Commercial Litigation” (2003) 29 Rutgers Computer & Tech. L.J. 219 at 225.
[19] Gregory P. Joseph, “Trial Evidence in the Federal Courts: Problems and Solutions Sponsored with the Cooperation of the ABA Section of Litigation: Internet and Email Evidence”(2008) American Law Institute 559 at579.
[20] Hon, William J. Haddad, “Authentication and Identification of E-mail Evidence” (2008) 96 ILBJ 252 at 254
[21] Thomas J. Casamassima & Edmund V. Caplicki III, “Electronic Evidence at Trial: The admissibility of Project Records, E-mail, and Internet Websites” (2003) 23-SUM CONSLAW 13 at 17.
[22] Supra note 6 at page 157
[23] In R. v. Vanlerberghe (1978), 6 C.R. (3d) 222 (B.C.C.A.) and R. v. Bicknell (1988), 41 C.C.C. (3d) 545 (B.C.C.A.) (computer printouts were admissible under business record provisions, s. 30 of Canada Evidence Act); R. v. Bell and Bruce (1982), 35 O.R. (2d) 164, affirmed without reasons [1985] 2 S.C.R. 287 (computer printouts admissible under bank record provisions s.29 of Canada Evidence Act).
[24] Paul R. Rice: Electronic Evidence Law and Practice (Chicago: American Bar Associations 2005) at 194.
[25] (1982), 35 O.R. (2d) 164 (Ont. C.A.), affirmed (sub nom. Bruce v. R.) [1985] 2 S.C.R. 287 (S.C.C.).
[26] Leah Voigt Romano, “Developments in the Law: Electronic Discovery: VI. Electronic Evidence and the Federal Rules” (2005) 38 Loy.L.A.L.Rev.1745 at 1796.
[27] Uniform electronic evidence Act
[28] In Tecoglas Inc. v. Domglas Inc. (1985), 3 C.P.C. (2d) 275 (Ont. H.C.), the court acknowledged the necessity of admitting records from a computerized accounting system: "It would be almost impossible and certainly impractical to prove expenditures ... without admitting the computer records or documents based on the computer printout."
[29] R. v. McMullen (1979), 47 C.C.C.(2d) 499 (Ont. C.A.) at 506.
[30] R. v. Sheppard (1992), 97 Nfld & P.E.I.R. 144 (Nfld. S.C.); R. v. Rowbotham (1977), 33 CCC (2d) 411 at 416 (Ont. Co. Ct.)
[31] (1971)6 CCC(2d) 123 (N.S.C.A.)
[32] (1978), 6 C.R. (3d) 222 (B.C.C.A.)
[33] (1995) 38 C.P.C. (3d) 128
[34] R.S.N.B. 1973, c. E-15, s. 49.
[35] R v. Shephard (1993) 1 All. E.R. 225 (HL); theft case where cash register records were used to show accused did not purchase goods.
[36] Ibid
[37] http://www.tpsgc-pwgsc.gc.ca/cgsb/info/news/calibre/011_001/article01-e.html
[38] Electronic records as documentary evidence standard issued by Canadian General Standards Board (CGSB 72.34)
