Canada: Authenticity, Reliability And Integrity Of A Recording On A Technological Medium: The Court Of Appeal Provides Some Clarification

Last Updated: October 1 2018
Article by Jean-François De Rico, Samuel Gagnon and Charles Lapointe

Introduction

Now that electronic devices that can record conversations are omnipresent, courts routinely have to deal with attempts to introduce audio recordings as evidence. In this regard, there are certain rules that must be followed in order for such evidence to be admissible.

In addition to some general principles, such as respect for fundamental rights, and consent of the parties to be recorded – which we canvassed in a previous article – certain procedural rules regarding the reliability, authenticity and integrity of a recording sought to be introduced as evidence must be respected.

In its recent decision in Benisty v. Kloda1, the Quebec Court of Appeal clarified the rules applicable to the admissibility of an audio recording initially recorded on a cassette tape and later transferred in part to a digital medium (a compact disc, or CD).

I. The facts

The appellant Charles Benisty ("Benisty") is an investor who did business with Samuel Kloda ("Kloda"), a securities broker. Benisty alleged that Kloda had consummated some 15 transactions in his account, which ended up losing him $400,000, without his authorization.

Benisty's evidence consisted essentially of recordings of his conversations with Kloda. The trial court had to rule on the admissibility of the recordings.

II. The trial decision

At first instance[2], Kloda objected to the introduction of the recordings as evidence. Benisty argued that if Kloda wanted to impugn the conditions surrounding the making of the recording (authenticity) and its contents (reliability) he would have to adduce evidence to that effect3.

The Superior Court found that the cassette recordings constituted physical evidence4 whose authenticity and probative value had not been established and that they could not be characterized as a technology-based document within the meaning of the Act to establish a legal framework for information technology5 (the "Act"), such that the recordings did not qualify for the exemption under article 2855 of the Civil Code of Québec or for the presumption of integrity of the recording medium provided for in section 7 of the Act6.

Kloda's objection was upheld, the Court taking the view that Benisty had failed to prove the authenticity and reliability of the recordings and noting that they were full of interruptions and even deletions, which may or may not have been deliberate7.

III. The decision on appeal

In this unusual situation where different recording mediums had been used8, the Court of Appeal concluded that Benisty had not met his burden of proof, and upheld the trial judge's decision.

The Court took the opportunity afforded by this case to clarify various concepts pertaining to audio recordings, devoting nearly a hundred paragraphs to the exercise. In doing so it put an end to the controversy that had been brewing ever since the Act came into force in 2001, and also corrected the trial judge's characterization of the recordings.

As explained in more detail below, a court called upon to analyze an audio recording that one of the parties wishes to enter into evidence must proceed in two stages:

  1. It must characterize the evidence in light of the goal sought by the party who wishes to produce the recording in order to determine if it is testimony or real evidence;
  2. It must determine if the medium or technology used ensures the integrity of the recording;

    • If that proves to be so, the presumption under section 7 of the Act applies and it is not necessary to separately prove the recording's authenticity;
    • Otherwise, the party seeking to adduce the recording must separately prove its authenticity in accordance with the general rules of evidence9.

A. Legal characterization of a taped audio recording

In its decision the Court of Appeal first resolved a difference of opinion in doctrinal authority as to whether a tape recording is a technology-based document, by deciding that it is.

According to its intended purpose as evidence, such a recording can be either testimony (article 2843 CCQ) or real evidence (article 2854 CCQ). Depending on which characterization it is given, the parties will have to respect the evidentiary rules specific to its admissibility as so characterized.

In this instance, because the recordings were intended to allow the Court to directly draw its own conclusions from them, they were characterized as real evidence10.

B. The requirement to prove the authenticity of a technology-based document

The Court rejected the line of cases holding that articles 2855 and 2874 of the CCQ and section 7 of the Act were intended to create a presumption exempting the party seeking to adduce a technology-based document from demonstrating the authenticity of its contents, including that it had not been altered11.

The Court delineated the scope of this presumption and drew a distinction between the medium itself and the information contained on it. The presumption created by section 7 of the Act is only to the effect that the medium or the technology used allows the integrity of the document to be established12, thereby dispensing the party from having to demonstrate that the document's medium or the technology used to communicate were designed to ensure its integrity13.

The Court then dealt with the exemption from having to prove the authenticity of real evidence, provided for in articles 2855 and 2874 CCQ. The Court discerned in those provisions the legislative intent to recognize the probative value of metadata with respect to the integrity of the document's content. It is important to note that the metadata of a technology-based document (intrinsic information that allows the author, date of creation, modifications, etc. to be identified) do not constitute independent evidence as contemplated by articles 2855 and 2874 CCQ. Thus, a technology-based document such as an audio recording generally contains two kinds of information: the recording itself and the information embedded in the document pertaining to its history (the metadata).

The Court concluded that in the absence of intrinsic information in the technology-based document (metadata) establishing that the information has not been altered and has been integrally maintained, the party seeking to enter such a document into evidence must otherwise prove its authenticity14.

Thus, to the extent that a technology-based document's metadata convinces the court of the document's authenticity, the party seeking to enter it into evidence will not have to adduce separate evidence of its making (how was it created?) or its integrity (is the information in it reliable and unaltered?). The metadata inherent in the technology-based document allows those aspects to be proved (at least partially, as metadata alone is generally of no use in identifying the parties to the conversation, or the party who recorded it).

C. Criteria for establishing the authenticity of an audio recording

In cases where proving the authenticity of a recording is necessary, the evidentiary process is twofold15.

It is first of all essential to establish the identity of the parties to the conversation. In the case of an audio recording, it must be shown in particular who made the recording, by what means, and what procedure was followed16.

Then, questions must be asked regarding the integrity of the information contained in the document. Obviously, a recording full of dubious interruptions will have a low probative value. Submitting an edited version of the recording in order to facilitate the presentation of the evidence before the court is a possibility, but the interruptions must not be of such a nature as to smack of an attempt to misrepresent what was said.

As stated above, it will not be necessary to separately prove how the technology-based document was created and that its integrity has been preserved if the document contains metadata that satisfies these evidentiary requirements17. However, the oral exchanges recorded on it must be clear and intelligible.

D. Transfer from one medium to another

In the Kloda case, the recordings at issue were transferred from the original cassette tapes to a CD. The Court therefore had to determine if the rules applicable to the reproduction of a document set forth in articles 2841-2842 CCQ and in section 17 of the Act were respected.

Article 2841 CCQ distinguishes between two types of reproductions. On the one hand is a reproduction on the same medium as the original, and on the other, a reproduction resulting from the transfer of the information contained in the original to a medium based on different technology. In the case of a copy made on the same medium, article 2841 makes its admissibility subject only to certification, whereas if the content of the original has been transferred to a medium based on different technology, such as a digital copy of a paper document, the reproduction must be accompanied by documentation describing the transfer process whereby the information was transferred, in accordance with article 2482 CCQ.

The Court, noting the absence of any evidence establishing that the recording resulting from the transfer contained the same information as that on the cassette tapes, decided that it could not allow its use for the purpose of demonstrating the authenticity of the recording.

E. Procedure for contesting the reliability of the medium of a technology-based document

Finally, it is important to be aware that a litigant who intends to contest the integrity of a document must comply with article 262 of the Code of Civil Procedure. A party can contest a document by showing, for example, that its content has been altered, that its author cannot be identified or that the information it contains does not accord with that in the original.

Conclusion

In a context where the majority of the writings and communications sought to be entered into evidence have for many years now been technology-based documents, the provisions of the Act are essential references for astute litigators. The primary takeaway from the Court of Appeal's judgment is that a tape recording is a technology-based document as defined by law. Accordingly, a party that intends to use such a document must respect the specific provisions of the Act. Second of all, while the Court limited the scope of the presumption of integrity under section 7 of the Act to the technological medium, this presumption, i.e. that the medium used is technologically reliable, is rebuttable18.

The entering of a recording into evidence in a civil trial may seem simple – and it should be – but the rules applicable to technology-based documents remain complex and are often misunderstood. The Court of Appeal's clarifications of certain provisions of the Act in this recent decision will allow litigators to master and apply them more easily.

Footnotes

1. Benisty v. Kloda, 2018 QCCA 608

2. Benisty v. Kloda, 2015 QCCS 3391

3. Id., para. 89.

4. Civil Code of Québec, CQLR, c. CCQ-1991, art. 2854

5. CQLR, c. C-1.1

6. Vincent Gautrais and Patrick Gingras, "La preuve des documents technologiques", in Service de la formation continue, Barreau du Québec, Congrès annuel du barreau 2012, p. 2 at 28

7. Benisty v. Kloda, supra, note 2, para. 93

8. At first instance, Benisty entered six cassettes (exhibit P-60) containing the recordings of his conversations with Kloda. During the hearing, he played these recordings using a CD that had not been entered into evidence as an exhibit. On appeal, Benisty substituted another CD (which he referred to as exhibit P-60) but the cassettes containing the original recordings were not filed into the court record, making it impossible for the Court to compare the information on the two mediums.

9. Benisty v. Kloda, supra, note 1, paras. 118-124

10. Benisty v. Kloda, supra, note 1, paras. 59-63

11. Benisty c. Kloda, supra, note 1, para. 91. The Court referred in particular to the following decisions: Droit de la famille — 161206, 2016 QCCS 2378 (CanLII), paras. 67-70; Planificateurs immobiliers et hypothécaires JC Inc. v. Courtiers Inter-Québec Inc. (Royal Lepage Inter-Québec), 2017 QCCQ 1225 (CanLII), para. 85; Leclair v. Charest, 2016 QCCQ 2518 (CanLII), paras. 94-99; Compagnie des chemins de fer nationaux du Canada v. Compagnie d'arrimage de Québec ltée, 2010 QCCQ 942 (CanLII), para. 120; Stefanovic v. ING Assurances Inc., 2007 QCCQ 10363 (CanLII), paras. 65-66; Vandal v. Salvas, 2005 CanLII 40771 (QC CQ), [2005] R.L. 587, paras. 22-23 (C.Q.); Desjardins et Services partagés Canada, 2017 QCTAT 1222 (CanLII), para. 35; Landry et Provigo Québec Inc. (Maxi & Cie), 2011 QCCLP 1802 (CanLII), paras. 51-53.

12. Benisty v. Kloda, supra, note 1, para. 94

13. This distinction has been identified by some doctrinal writers since 2009: see in particular: J-F DE RICO, and D. JAAR, "Le cadre juridique des technologies de l'information", Congrès annuel du Barreau du Québec (2009); V. Gautrais, La preuve technologique, Montreal, Lexis Nexis, 2014, nos 501-502; M. Phillips, La preuve électronique au Québec, Montreal, Lexis Nexis, 2010, no 88.

14. Id., paras. 101 to 105

15. Vincent Gautrais, La preuve technologique, Montreal, Lexis Nexis, 2014, no 501-502

16. Benisty v. Kloda, supra, note 1, para. 107

17. Id., para. 110

18. Autorité des marchés financiers v. Baazov, 2018 QCCS 3422, para. 135

Co-written with Antoine Veillette, articling student.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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Authors
Jean-François De Rico
Samuel Gagnon
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