Court File and Parties

Date: 2014-03-10

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Michael Mondor

Before: Justice M. Greene

Reasons for Judgment released on: March 10, 2014

Counsel:

• M. Cole for the Crown
• S. Price for Michael Mondor

Introduction

[1] Mr. Mondor was charged with accessing child pornography. At trial the Crown sought to introduce a number of documents, namely purchase orders/invoices, into evidence for the truth of their contents. It was the Crown's position that these electronic documents were admissible under section 31 of the Canada Evidence Act (CEA). In the alternative, Mr. Cole, on behalf of the Crown, argued that if the purchase orders/invoices were not admissible under s.31 of the CEA, they were still admissible as an admission against one's interests (see R. v. Beauchamp [2009] O.J. No. 941 (S.C.J.) at paragraphs 20-25).

[2] Mr. Price, on behalf of Mr. Mondor, argued that section 30 of the CEA was the relevant provision and that as the Crown had not complied with section 30 of the CEA, the documents were not admissible at trial. He further argued that the purchase orders, as they were not in possession of Mr. Mondor, could not be admissible as an admission against interest under R. v. Beauchamp, supra.

[3] Mr. Cole, on behalf of the Crown advised that if the court concluded that section 30 of the Canada Evidence Act applied or if the exception or mode of admissibility as articulated in R. v. Beauchamp did not apply, then he would be unable to establish the admissibility of the documents in question and would invite me to find Mr. Mondor not guilty of the charges.

Relevant Background

[4] In 2011, the police conducted an extensive investigation of AZOV Films. This film company had a website that purported to advance the interest of "naturalists". The website contained advertisements for films involving naked boys between the ages of seven and eighteen. There was also a means to purchase videos from this website.

[5] The Toronto Police Force and other police forces ultimately concluded that the material on this website met the legal test for child pornography and arrested the owners and employees of the company. The police also took down AZOV Film's website and seized all their computers.

[6] In aid of their investigation, highly trained and specialized officers re-created the website in order to gather and record the contents of the website without making it accessible to the public. They also went through all the computers owned by AZOV Films. In doing so, the officers located a data base of purchase orders/invoices. These purchase orders/invoices had the names and addresses of the individuals who purchased films from AZOV, the names of the films purchased and the means by which the films were sent to the purchaser.

[7] Five of the purchase orders/invoices found on the data base appeared to belong to Mr. Mondor, in that his name and address were on the orders. As a result of locating these invoices, Mr. Mondor was arrested and charged with accessing child pornography. Mr. Mondor's residence was searched, but the videos were not located.

Evidence at Trial Relevant to the Issue Before the Court

[8] At trial, Detectives Blackadar and Boyko testified about the purchase orders/invoices found on AZOV Films' computers. There were five such documents in Mr. Mondor's name spanning a couple of months. The invoices/purchase order documents related to films that the officers identified as containing child pornography. The purchase order/invoice contained the name of the film being purchased, Mr. Mondor's name and address and information about whether or not the video had been shipped.

[9] Detective Ross testified in detail about the process he used to retrieve, download and print the purchase order/invoices found on the AZOV Films' computer. He also testified about how the purchase orders/invoices were created. After re-creating the website for AZOV films, Detective Ross went through the process of ordering a film on line. After filling out an order form, he logged off the system as the purchaser and logged back in as the system administrator. Once logged in as the administrator, Det. Ross was able to retrieve the order form and make changes to it, including adding when the item was shipped out. It was through this process that Detective Ross could testify how the purchase order forms/invoices were created and stored. Essentially, the purchaser went on line, made a request to order a film and then filled out his/her personal data and means of payment. The administrator would receive the order, fill the order and note on the order form/invoice when the item was shipped to the purchaser.

[10] While the purchase form had a payment mechanism, the credit card data was not retained on AZOV Films' system. The Crown, however, put in evidence Mr. Mondor's visa bills which indicate that Mr. Mondor paid for the films listed in the invoice/purchase orders found on the AZOV films data base.

[11] At trial the Crown sought to admit the purchase order forms/invoices into evidence for the truth of their contents. Defence counsel argued that the documents in question were business records and as such the Crown could not introduce the documents into evidence for the truth of their contents without first having complied with section 30 of the Canada Evidence Act.

[12] It is important to note that the Crown conceded that he had not complied with section 30 of the CEA and that he would not be able to comply with the section at Mr. Mondor's trial. He also took the position that if the documents could not be admitted for the truth of their contents, his case would fail. The Crown did not attempt to rely on the non hearsay portion of the records and did not seek to rely on the documents as circumstantial evidence of the offences. In light of the position taken by the Crown, counsel asked for a ruling on this point before any other evidence was heard. After reviewing the law, I advised counsel that it was my ruling that section 30 of the CEA applied and advised that my reasons would follow. The Crown then asked for Mr. Mondor to be found not guilty on the charge before the court. I acceded to his request.

The Issues Raised in This Case

[13] The Crown argued that the records in question were admissible for the truth of their contents by virtue of section 31 of the CEA. He argued that since section 31 was complied with, he need not comply with section 30 of the CEA. In the alternative, counsel argued that the documents were admissible as admissions, in accordance with the case of R. v. Beauchamp, [2009] O.J. No. 941 (SCJ).

[14] Defence counsel argued that section 31 does not allow a party seeking to admit hearsay documents to by-pass the requirements of section 30 of the CEA when documents are being introduced for the truth of their contents. He argued that section 31 is to be used in conjunction with section 30 in this case to address the admissibility of computer generated hearsay business records.

[15] He further argued that as none of these documents were found in Mr. Mondor's possession or on any computer that he had control over, there is insufficient evidence that Mr. Mondor created the documents and as such, they are not admissible as an admission.

Analysis

a) Understanding Electronic Evidence

[16] In order to properly attempt to interpret the relationship between section 31 of the CEA and other rules of evidence, it is first necessary to understand what material is included under the definition of electronic evidence as contemplated by this section. Does it relate to any document stored electronically, regardless of how it is created? Or does it relate only to information that is generated electronically.

[17] In Electronic Evidence in Canada, Graham Underwood and Jonathan Penner provide a helpful perspective on electronic evidence. They provide a broad definition of electronic evidence, including all electronically stored data, but then focus the definition by classifying the electronically stored information (ESI) as either real or documentary evidence. This classification then guides the admissibility analysis. Where the electronically stored data is recorded electronically by an automated process, then the evidence is real evidence. Where, however, the electronically stored information is created by humans, then the evidence is not real evidence, and is not admissible for its truth absent some other rule of admissibility. Graham Underwood and Jonathan Penner stated at paragraph 12.2 on page 12-2 of their book, Electronic Evidence in Canada (Toronto: Carswell, 2013):

…the way ESI is created, or the purpose for which it is tendered (and sometimes both) will determine how ESI should be characterized for the purpose of determining admissibility. Information that is gathered and recorded electronically by an automated process, either with or without human intervention, can be introduced as real evidence. Automated billing records (for example, cellular telephone billing records that are captured and recorded automatically) can be introduced as real evidence. Much of the metadata that are associated with most types of electronic documents (including emails, spreadsheets, word processing documents and electronic drawing or picture files) can be admitted as real evidence. Furthermore, ESI (no matter how it is created) can be tendered as real evidence in the same manner and for the same purposes that a conventional paper document can be introduced as real evidence. In a close related manner, when ESI is introduced not for the purpose of providing evidence of the truth of the statements contained in it, but rather for the fact the ESI existed or was found in possession of a person, the ESI will normally be classified as real evidence. In contrast, ESI that is created by humans to record their observations or statements is not real evidence when introduced as evidence of those observations or statements. For example, business records that store information that comes from human observers, even though the records may be stored as ESI, will not constitute real evidence when introduced for the truth of their contents. (emphasis added)

[18] Graham Underwood and Jonathan Penner go on to note that:

When electronically stored information is tendered as documentary [as opposed to real] evidence, it is usually hearsay. It will therefore be essential to find an exception to the hearsay rule whenever electronically stored information is tendered as documentary evidence (at page 13-14).

[19] In my view, this interpretation of electronically stored data strongly supports a finding that where the electronically stored information is effectively data inputted by a human the hearsay rules still apply. In the case at bar, the information on the purchase orders/invoices that the Crown wants to rely on for their truth is the information inputted by the purchaser, that is the name and address of the purchaser and the information inputted by the employee at AZOV Films who inputted whether or not the purchase order was delivered. This, in my view, under the Underwood & Penner classification scheme would amount to documentary evidence, thereby requiring a means to admit the hearsay evidence.

[20] The question remains, however, whether section 31 of the CEA serves to address the hearsay issue.

b) Section 30 and 31 of the CEA

[21] It is well accepted that hearsay evidence is not admissible in a criminal trial for the truth of its contents. There are some notable exceptions to this general rule. Relevant to this case, is the exception found in section 30 of the CEA. Section 30 of the CEA serves to allow the admission of hearsay evidence that is in the form of business records, into evidence for the truth of their contents as long as certain preconditions are met.

[22] Section 31 speaks to the admissibility of electronically generated documents. It is clear from the evidence that the Crown has complied with section 31 of the CEA. The question is whether section 31 of the CEA, standing alone, allows for the admission of hearsay evidence when it is in the form of electronic document.

[23] The starting point, in my view, is to look to the ordinary language of both sections 30 and 31 and the CEA. Section 30 of the CEA allows for the admission of a record made in the ordinary course of business where oral evidence in respect of that matter would otherwise be admissible. It allows the applicant to avoid calling the witness who created the document and allows the hearsay item to be entered into evidence instead. Under section 30 of the CEA original documents or copies may be admitted into evidence in lieu of oral evidence.

[24] Section 30 of the CEA does not speak at all to the admissibility of non-original, non-copy documents. Section 30 does not provide for an authentication process for computer generated documents, however, there is some merit to the argument that computer print outs could meet the test for an original or a copy under section 30 of the CEA. Having said that, the focus of section 30 of the CEA is to provide a mechanism to admit business records into evidence for the truth of their contents.

[25] Section 31, on the other hand makes no reference to substituting the computer document for viva voice evidence. Section 31 only speaks to what steps must be taken to admit the electronic document. It does not specifically specify for what purpose the document may be admitted. It is my view, though, that when the section is looked at in its entirety, the focus of the section is to address the best evidence rule and authentication of computer generated documents as opposed to admitted hearsay evidence.

[26] Section 31.1 states that the person seeking to admit the electronic document into evidence has the burden of proving the authenticity of the document by evidence capable of supporting that the document is that which it purports to be.

[27] Section 31.2 speaks to how the best evidence rule is complied with when dealing with electronic documents. Section 31.3 speaks to how the person seeking to admit the evidence can establish the integrity of the document. None of these sections speak to using electronic documents in lieu of viva voce evidence.

[28] Even more telling is the language of sections 31.5 and 31.7. Section 31.5 states that:

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 recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.

[29] The language in this section suggests that authenticating the electronic document alone is not the sole issue on admissibility.

[30] Section 31.7 provides even more guidance. Section 31.7 states, "Sections 31.1 to 31.4 do not affect any rule of law relating to the admissibility of evidence, except the rules relating to authentication and best evidence".

[31] In my view, reading the above two subsections in their plain language, the only interpretation is that the normal rules of evidence still apply to the admissibility of electronic documents and that section 31 only serves as an instruction to the litigants and the court on the best evidence rule and authenticating electronic documents.

[32] Given the structure of the section, it is reasonable to conclude that electronic documents that are being admitted for the truth of their contents without the person who created the document testifying, must still meet the test for admitting hearsay evidence as a business record under section 30 of the CEA and that section 31 serves to allow a process for authenticating a computer generated document. Section 31, in my view, does not allow for the admission of hearsay evidence contained within an electronic document just because it is in electronic form. The applicant must first establish that the hearsay is admissible either under section 30 or some other mechanism.

[33] This is also the position taken by the present authors of, The Law of Evidence in Canada 3rd ed, Sopinka, Lederman and Bryant. The authors of this book notes that sections 31.1-31.8 of the CEA exist to "facilitate the admissibility' of electronic documents in so far as the best evidence rule needs to be addressed. For example, if an electronic document cannot be authenticated out of fear of fraud or forgery, then it is not admissible under the best evidence rule. It is a mechanism for the party seeking to adduce the evidence to demonstrate that the electronic versions of the documents are as reliable as the originals. The authors noted, at page 306:

The focus of admissibility is on the authenticity and reliability of the electronic documents which can be demonstrated by showing the integrity of the electronics documents system rather than the individual record itself. There is a presumption of integrity if, among other things, it is shown that the computer was working properly. The Court can also consider; contemporaneous recording of information and data, routine business data and entry, reliance on the data by the business organization, software reliability, processing verification of data in records, security against unauthorized access, maintain back-up copies, and proper retention and disposition of electronic records.

c) Relevant Case Law

[34] A number of courts have taken the same position. In R. v. Morgan, [2002] N.J. No. 15 (prov crt), Flynn J. state the following about the relationship between sections 30 and 31 of the CEA at paragraph 20:

The Crown relies on both section 31.1, Section 31.2 and Section 30(3) of the Canada Evidence Act to support the admissibility of the electronic documents. In my view, the Crown need not rely on section 30(3) of the Act, as the more pertinent sections are Sections 31.2 and Section 31.2. These sections must work in conjunction with either some common law general rule of admissibility of documents or some other statutory provision. These sections themselves do not authorize the admissibility of the documentary evidence it describes. Rather, what the sections do is to clothe electronically stored and produced documents with the status of "best evidence" provided they meet certain criteria for their admissibility. For example, the documents in this case must first be proven to be business documents or official or public documents which are admissible of themselves as documentary evidence and as exceptions to the hearsay rule. If they are admissible under these other criteria, then sections 31.1 and 31.2 operate to make them the best evidence available for that purpose.

[35] In R. v. Nardi, [2012] B.C.P.C. 318, the court was asked to consider the admissibility of information printed from a website as admissible hearsay. In that case the court held that it must consider both section 30 and 31 of the CEA.

[36] In R. v. Marini, [2006] O.J. No. 4057 (SCJ), Clark J, when addressing the admissibly of electronic business records, first considered whether the documents complied with section 31 to ensure compliance with the best evidence rule and then went on to consider whether in light of this, the documents were admissible for the truth of their contents under section 30 of the CEA.

[37] In R. v. Stewart, [2006] O.J. No. 5884 (O.C.J.), Justice Moore considered whether certain computer generated documents satisfied the test under s.31 of the CEA. In this case Justice Moore noted that section 31 of the CEA was created to deal with the realities of computer generated documents as they differed from the more mechanically produced business records. In Stewart, the Court was not called upon to address the relationship between section 30 and 31 of the CEA, the court was only asked to address whether the Crown met the requirements of section 31 of the CEA. I note, however, that in Stewart, the Crown appears to have established, in addition to the section 31 requirements, that the documents were made in the ordinary course of business. A witness testified at trial about how and when the electronic documents in question were generated.

[38] When I consider the cases referred to above, the language of the sections and the scholarly authorities on point, I am satisfied that section 31 of the CEA does not provide for an exception to the hearsay rule. Instead, it provides for an authentication process and route to admissibility of computer generated documents where normally original documents would be required. In order to admit computer generated documents for the truth of their contents, in the absence of the author of the documents, either section 30 of the CEA must be complied with, or some other exception to the hearsay rule must be applied.

Are the Records Admissible as an Admission Against One's Interests?

[39] In R. v. Beauchamp, supra, the trial Judge admitted documents seized from the Canadian Barcode and Plastic Company for the truth of their contents. The defendants owned this company and the computers from which the documents in question were generated. As the owners and controllers of the documents, the trial Judge admitted the documents as an admission exception to the hearsay rule. He did not admit the documents as admissions against those that were not in possession of the data bases.

[40] In the case at bar, the Crown seeks to admit the purchase orders/invoices as an admission by Mr. Mondor. In order for this exception to apply, the Crown must first establish that Mr. Mondor was the author of the documents, or in possession of the computer that housed the documents.

[41] There is no evidence that Mr. Mondor was in possession of the computer that housed the purchase orders/invoices found on AZOV Films' computers. This was the main deciding factor in Beauchamp.

[42] The issue of whether there is sufficient evidence that Mr. Mondor made the documents is more complex. The Crown did not point to any specific evidence, outside of the hearsay evidence, that would allow me to conclude that Mr. Mondor created the documents in question. There is, however, in my view some circumstantial evidence that Mr. Mondor filled out the purchase orders. In particular there is the evidence that he paid for the films on his credit card. This evidence, however, is insufficient evidence of identity to admit the documents in question into evidence as an admission against interest. I therefore find that the documents are also not admissible for the truth of their contents as an admission.

[43] Given the concessions made by the Crown, I find that the documents are inadmissible for the truth of their contents.

Released: March 10, 2014

Signed Justice Mara Greene