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<xTITLE>Canada – Evidentiary Rules for Adducing Videos/Video Stills Applicable also in Arbitration</xTITLE>

Canada – Evidentiary Rules for Adducing Videos/Video Stills Applicable also in Arbitration

by Daniel Urbas
November 2020 Daniel Urbas

This article first appeared in Urbas Arbitral, here.

In R. v. Brar, 2020 ABCA 398, Alberta’s Court of Appeal analysed the Canada Evidence Act, RSC 1985, c C-5’s application to bank records including video surveillance stills and videos captured at automatic teller machines. The Court explored the reasoning behind the Canada Evidence Act’s evidentiary rules applicable to records held by financial institutions and requirements for adducing such evidence. The Canada Evidence Act expressly applies to arbitration and matters within the jurisdiction of Parliament. While the Court’s analysis applied to a criminal proceeding with its heightened standard of ‘beyond a reasonable doubt’, it still serves to guide arbitration practitioners. Subject to any adjustments occasioned by the standard of ‘balance of probabilities’ applicable in civil matters, the Court’s analysis offers arbitration practitioners meaningful insights.

Appellant was convicted at trial of one (1) count of fraud over $5,000.00 after having been found to have cashed a series of cheques drawn on accounts with insufficient funds. The evidence at trial included video stills and DVD videos purportedly generated through bank surveillance cameras located at automatic teller machines used to deposit cheques and withdraw money. The Crown adduced the video stills and DVD videos as part of its evidence, submitting that they showed Appellant depositing the cheques and conducting other transactions including transfers between accounts.

On appeal, Appellant argued that the video stills and DVD videos were inadmissible because the Crown had not filed sufficient evidence to comply with the requirements of section 29 of the Canada Evidence Act, RSC 1985, c C-5 (“CEA”). Appellant argued that the affiant did not have personal knowledge of the video stills and DVD videos as she did not personally retrieve them off the surveillance system and also challenge the authentication of that evidence.

Section 2 of the CEA stipulates that the CEA applies to all civil proceedings “and other matters whatever” respecting which Parliament has jurisdiction. Section 29(9) provides definitions which apply to section 29: “court” is defined to mean “the court, judge, arbitrator or person before whom a legal proceeding is held or taken”; and, “legal proceeding” is defined to include “any civil or criminal proceeding or inquiry in which evidence is or may be given, and includes an arbitration”.

Section 29(1) stipulates that subject to other provisions in that section, a copy of any entry in any book or record kept in any financial institution shall in all legal proceedings be admitted in evidence as proof, in the absence of evidence to the contrary, of the entry and of the matters, transactions, and accounts therein recorded.

On appeal, the Court first identified the applicable standards of review. It looked back to R. v. Bulldog, 2015 ABCA 251 which held that (i) whether a trial judge articulated the correct legal criteria for admissibility of the video stills and DVD surveillance videos is a question of law, reviewed for correctness; and, (ii) factual findings made by a trial judge, and whether those facts met that legal criteria are questions of mixed fact and law, reviewed on a standard of palpable and overriding error.

[25] The statutory requirements of s 29 of the CEA do not require personal or first-hand knowledge of the records, and neither the English nor the French translations of the current wording contain the phrase “personal knowledge”, or “connaissance personnel”. General knowledge and attestation based on information and belief is sufficient under s 29, and it is for the trial judge to weigh the credibility and reliability of the evidence of the affiant or witness in determining admissibility. Further, once evidence has been admitted under s 29, “as proof, in the absence of evidence to the contrary, of the… matters, transactions and accounts therein”, the ultimate determination as to the weight to be ascribed to that evidence, is for the trial judge to determine, together with all of the evidence tendered at trial”.

The Court held that it “incontestable that computerized records of a financial institution qualify as “records”” under section 29 of the CEA. It explained that the “purpose of s 29 of the CEA is to permit true copies of financial institutions’ books or records to be entered into evidence, thereby relieving those institutions and their customers from the inconvenience of having to bring their original books and records into court “for production in legal proceedings and to facilitate the proof of the matters entered in bank records”" and referred to Regina v. McMullen, 1979 CanLII 1867 (ON CA).

At paras 28-30 and 35-41, the Court examined the specific role given to computerized records of financial institutions by the CEA and the expectation that the courts’ approach to section 29 will keep pace with evolutions in technology:

[38] While technology constantly evolves, there is no principled reason why s 29 is not up to the task of applying to modern computerized bank records, which includes digitally captured and stored video surveillance. This again, is also premised on the fact that s 29 was enacted and functions to make it easier for copies of (evolving) bank records to be admitted into evidence, without the necessity of producing the original records, or the original record maker”.

The case provides an analysis of those principles to the facts of the case and offers some guidelines as to how arbitrators might approach similar issues if and when the CEA is raised by the parties and applicable to the facts in issue. On the record before it, the Court dismissed the appeal.

[63] In my view, the video and video stills were real evidence; namely, a substantially accurate representation of the person captured on TD’s digital video surveillance at the time the fraudulent transactions were made. This evidence, together with the other evidence tendered by Ms. Bishop, provided ample support for admissibility, and once weighed by the trial judge with all of the other evidence, provided more than sufficient support for the resulting conviction”.

urbitral notes– First, R. v. Bulldog also dealt with the application of the CEA to video recordings and at para. 17 provided further sources for the applicable standards:

[17] The trial judge’s identification of the standard for admitting the DVD is a question of law, reviewable for correctness: R v Underwood, 2008 ABCA 263 at para 10, 433 AR 298. Whether that standard was met on the evidence, in this case, is a question of mixed fact and law, reviewable only for palpable and overriding error: R v Redford, 2014 ABCA 336 at para 12, 584 AR 294”.

Second, the CEA applies to both criminal and civil matters. The CEA’s application in each type of proceedings should be made against different standards of proof applicable to each type of proceeding. The criminal proceedings apply a ‘beyond a reasonable doubt’ whereas civil proceedings, including arbitrations, apply a ‘balance of probabilities’. The comments made in the source cases involve criminal matters and must be read with that in mind before applying them to civil proceedings.

Third, para. 7 of Regina v. McMullen, 1979 CanLII 1867 (ON CA) is worth reading. It sets out an extensive discussion of the issues raised in the production of the records of financial institutions.

 

Biography


Daniel Urbas is an experienced litigator, arbitrator and mediator with over 25 years of dispute resolution experience. He has earned a variety of repeat, annual peer recognitions including “Leading Lawyer” in “Commercial Arbitration” in the 2019 edition of the Lexpert ® / American Lawyer Guide to the Leading 500 Lawyers in Canada, “Most Frequently Recommended” in the 2019 edition of The Canadian Legal Lexpert® Directory for Commercial Arbitration, “Thought Leader” in 2019 edition of Who’s Who Legal – Litigation and AV® Preeminent™ by Martindale-Hubbell®.

Daniel focuses exclusively on serving as an arbitrator and mediator.  As arbitrator, Daniel serves as a sole arbitrator, as chair or as party-nominated member of three (3) member arbitration tribunals. His appointments have been made by individual parties, by the parties jointly on consent, by court orders and by various administering institutions including ICC, CCAC and IATA.

A Fellow of the Chartered Institute of Arbitrators (“CIArb”) based in London, UK, as well as a founding Director of the CIArb’s Canada Branch, Daniel is listed on various rosters including general commercial rosters organized by the ICDR, CIETAC and BCICAC and on more specialized, industry/activity specific rosters such as the Canada Transport Agency’s roster.

Daniel’s dispute resolution experience spans a variety of commercial and civil matters, intellectual property (including anti-piracy and anti-counterfeiting litigation) and information technologies, energy (wind, bio), natural resources (mining, forestry, fishing), shareholder disputes, real estate and lease disputes, product liability, construction, distribution and franchise, Aboriginal law matters including treaty and land claims litigation and dispute resolution of agreements relating to governance and natural resource development on native peoples’ territories.

He handled trial and appellate advocacy, as well as urgent and extraordinary applications. He has appeared before the provincial and federal courts, including the Supreme Court of Canada, as well as before arbitration tribunals and various administrative tribunals. Fluently bilingual in both English and French with degrees in both Common Law and Civil Law, Daniel is an active member of the Barreau du Québec, the Law Society of Ontario and the Law Society of British Columbia.  At his former national law firm, up until June 2017, Daniel served as Regional Leader of the International Trade Litigation and Arbitration group and Regional Leader of the Intellectual Property Litigation group. Formerly, Daniel was also Regional Leader of the Commercial Litigation group and National Leader of the Intellectual Property Litigation group.



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