The way that we practice law has shifted rapidly over these past couple of weeks as we social distance ourselves. This includes the adoption of electronic means of communication such as video conferencing for things that would have seemed impossible only a couple of weeks ago such as the witnessing of Wills or the commissioning of affidavits. There has also been a significant expansion of the courts hearing matters virtually, with the court currently hearing urgent matters virtually through the use of video conferencing or conference calls with the scope of what is being heard appearing to be expanded.
Although, generally speaking, I believe that most legal practitioners would likely be in agreement that the court and/or the various administrative bodies have responded fairly quickly to implementing new electronic methods and means of practicing law under trying times, this does not necessarily mean that the shift to the more virtual form of practicing law is not without its hiccups or concerns.
One of the areas that may need further consideration is the application of the “open court” principle if hearings are to shift to being heard virtually. It is generally accepted that a fundamental principle of our justice system is that the courts are open to being attended by anyone in the general public, with the court only restricting the general public’s access to attend and/or review a matter under very limited circumstances. As matters shift to being heard virtually, with a potential attendee to a video and/or telephone conference likely needing an access code to attend the matter, is there the risk that the “open court” principle could be impacted?
The Toronto Star recently reported about the steps and efforts that they were having to take to still be provided with electronic access to matters before the court during the pandemic. Although the article notes that they were having difficulty being provided with access for certain matters, it noted that they had been successful in obtaining electronic access to matters in others. Hopefully as time progresses any issues are able to be worked out.
One unknown element is whether any of these changes will become permanent after the pandemic has subsided. If elements such as virtual hearings should become more permanent steps will likely need to be taken to ensure that as part of the more permanent shift to virtual and electronic hearings that the “open court” principle is not lost.
Thank you for reading and stay safe and healthy.
Text messaging is an increasingly popular method of communication.
Even though a text may take less than 30-seconds to write and they are often intended to be causal communications as opposed to letters or e-mails, they are still a record of our written communications with one and other.
In a recent family law matter from Saskatchewan, the court was asked to consider the admissibility of a mother’s text messages with her child’s father in the context of a dispute about their parenting schedule.
The texts were downloaded from the mother’s phone to her computer using a computer application called “Decipher Text”. The computer application then generated a print out of the parties text messages which “appears as many single spaced tightly grouped lines with a code at the beginning of each line and what appears to be text message communications placed at the end of the code” (at para. 7). Since the document is a printout of an electronic record, the court considered whether the electronic record meets the requirements of the Saskatchewan Evidence Act. Ultimately, the printout was found to be inadmissible because the mother failed to introduce affidavit evidence about how the printout accurately and completely depicts the parties’ communications as well as how “Decipher Text” actually works.
The crux of the problem was best described at paragraph 19:
Here the link between the smart phone text message and the form of evidence filed to prove that text message – the Decipher Text printout – is lacking. The intermediary here is a printout that is not a screen shot but is instead a computer rendering of some sort, filtered and formatted through the Decipher Text computer program/application. This intermediary program, or application, is not explained in any of the affidavits nor so commonly understood presently that it is possible to take judicial notice of what happens between the electronic record, here being the text messages, reaching the smart phone and that subsequently being converted into the printout attached. Thus a gap exists regarding authentication here.
In Ontario, section 34.1 of the Evidence Act, RSO 1990, c E. 23 governs the admissibility of electronic records in so far as it relates to the issue of authentication and best evidence rule. Like Saskatchewan, section 34.1(4) provides that the person seeking to introduce an electronic record has the burden of proving its authenticity.
Sylvestre v. Sylvestre, 2018 SKQB 105 (link here), is well worth the read for any litigator in today’s day and age. It is also well worth having in your arsenal of case law regarding how judicial notice may be given to other ways of presenting electronic evidence such as the screenshot.
Thanks for reading!