La preuve d'un document diffère selon qu'elle soit électronique ou papier

R. v. Schertzer, 2011 ONSC 579 (CanLII)

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[12]           Ewaschuk discusses the meaning of authenticity of documents and the different approaches to documentary evidence and recordings in Criminal Pleadings and Practice in Canada,2^d  ed. (Aurora;Thompson Reuters, 2010) at 16:104.1-105,

16:2657 Authentication (identification) of exhibits

A party tendering real evidence, generally, must attempt to authenticate (i.e., to identify) where the item was located or seized (its source) and may attempt also to identify the author, owner or possessor of the item, whether by direct or circumstantial evidence.  Generally, the party tendering real evidence is required to lead further evidence that tends to prove that the real evidence is genuine, i.e., that it is authentic in the sense that it actually is what it purports to be.  The opposite is the case where the party tendering the real evidence wishes to establish that it is false, i.e., that it is not authentic. Authentication may also involve testimony as to the time, date, location and circumstances of the making of the real evidence and testimony as to its accuracy or its fair representation of what actually occurred.  Formerly, the party tendering a document had to offer some evidence as to its authenticity (i.e., its authorship and genuineness) before it could be received in evidence and made an exhibit.  Documents, generally, cannot “speak for themselves”.  Now, mere possession of the document by a party litigant or someone related to the party may suffice. (Citations omitted)

Authentication is to a document what competency is to a witness.  “Without authentication of a document”, evidence may not be put before a decision maker.

R. v. Lempen, 2008 NBCA 86 (CanLII), 81 W.C.B. (2d) 379 [008/345/014 - 13 pp.], at para. 19 (at para. 20 -- documents may be authenticated in a variety of ways: calling the writer, calling a witness who saw the document signed, calling a witness who is familiar with the writer's handwriting, by comparison of the writing in dispute with a writing proved to the satisfaction of the court to be genuine, by calling of experts, or through an admission by the opposing party; “circumstantial evidence” may also point to the genuineness of the document -- e.g., letters received in reply to an earlier correspondence are accepted as being made by the sender)

Before any document can be admitted into evidence there are “two obstacles” it must pass.  First, it must be authenticated in some way by the party who wishes to rely on it. This authentication requires testimony by some witness; a document cannot simply be placed on the bench in front of the judge.  Even real evidence, which exists independently of any statement by any witness, cannot be considered by the court unless a “witnessidentifies it and establishes its connection to the events under consideration”. Unlike other legal systems, the common law does not usually provide for self-authenticating documentary evidence.  Second, if the document is to be admitted as evidence of the truth of the statements it contains, it must be shown to fall within one of the “exceptions to the hearsay rule”.

R. v. Schwartz (1988), 1988 CanLII 11 (SCC), 45 C.C.C. (3d) 97, [1988] 2 S.C.R. 443, 66 C.R. (3d) 251, 55 D.L.R. (4th) 1, [1989] 1 W.W.R. 289, 56 Man. R. (2d) 92, 39 C.R.R. 260, 88 N.R. 90 (S.C.C.) at p. 122.

However, a party tendering certain items of real evidence, e.g., a tape from an automatic video camera, need not authenticate them inasmuch as some real evidence is “self-authenticating” and speaks for itself as a silent witness without the necessity of confirmatory oral testimony.

R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197, 111 C.C.C. (3d) 403, 141 D.L.R. (4^th) 647, 33 W.C.B. (2d) 2 (re “videotape of the crime scene” depicting the perpetrator of the crime).