L'authenticité vs l'admissibilité d'un document électronique

R. v Clarke, 2016 ONSC 575 (CanLII)

Lien vers la décision

[53]           There is a distinction between “authentication” of a record or a statement and its “admissibility”.

[54]           Authentication amounts to proof that a record is what it purports to be, that it is an original or a genuine copy.  As is clear from the discussion above, both statutory and common law exceptions to hearsay require additional proof to make the contents of the records admissible.  The determination of a preliminary question of fact in respect of both authenticity and admissibility is a preamble to considering the contents of the statement as proof of the truth therein. R. v. Evans addresses the degree of proof of authentication required at the admissibility stage.

[55]           R. v. Evans endorsed an American legal text for the proposition that only a prima facie demonstration of authenticity need be established at the admissibility stage and the ultimate question of authenticity is to be left for the trier of fact at trial:

…the authenticity of a writing or statement is not a question of the application of a technical rule of evidence.  It goes to genuineness and conditional relevance.  If a prima facie showing is made, the writing or statement comes in, and the ultimate question of authenticity is left for the jury: [McCormick, Charles Tilford, McCormick on Evidence, vol. 2, 4^th ed. (edited by John William Strong) (St. Paul, Minn.:  West Publishing Co., 1992), as cited in R. v. Evans, my emphasis].

[56]           Thus, at the admissibility stage the threshold for authentication is not high. A prima facie showing is all that is necessary.

[57]           Authenticity and authentication pose interesting challenges to the law of evidence in relation to the admissibility of electronic records.  Pacioccoaddresses deficiencies in  the law of evidence and the new concerns confronting the judiciary in the modern reality of technological progress:

We need to leave our rules and principles open enough to accommodate new technologies and the culture they bring about, lest the law of evidence become irrelevant.  To achieve this we will, for example, have to find comfort in weighing rather than excluding evidence to cope with continuity concerns.  We will also have to take a functional approach to judicial notice and expert evidence lest our trials get bogged down or defeated by insistence, where it is not truly required, that technological experts testify.  Ultimately the law of evidence is a tool-kit used in a practical enterprise — the resolution of conflicts through adjudication.  It has to operate in the real world as it is, not as it was.  We will make it fit because we must, but take heart in knowing that the changes required are modest at best and few are conceptual or elusive.

[David M. Paciocco, CJLT, vol. 11, p. 183]

[58]           Paciocco further suggests:

Courts should take a functional approach to judicial notice that will permit them to cope with technology that is broadly relied upon by ordinary persons.  This includes accepting, without the need for proof, the capabilities and operation of new technologies that are broadly used or understood by members of the public.

[CJLT, vol. 11, p. 226]