November 10th, 2000

On November 10^th, 2000, I attended the luncheon keynote address on “Electronic Evidence” at the annual Criminal Lawyers’ Association by one of Canada’s top civil litigation lawyers Alan Lenczner. The address was in honour of the late Justice John Sopinka of the Supreme Court of Canada who contributed much to the law of evidence. Justice Sopinka also wrote a seminal book on The Law of Evidence and two top books, The Trial of an Action and The Conduct of an Appeal.

Lenczner’s address dealt with the explosion of conveyances of evidence afforded by the increasing computerization and internetization of communication and the practice of law and life in general. I found this address fascinating and I thought I should pass on some of the ideas to those who did not attend, hopefully some may find something they can relate to in their own professional and other lives.

Lenczner brought vividness to life by stating that it is now easier than ever before to start leaving a trail of evidence that can be used by the other side in litigation anytime we start doing something. Any time you use you credit or other cards, evidence is registered about what you are up to. Any time you type something on your computer, evidence remains on a disc. Use that cell phone or home phone, and you are open season if somebody ever needed that evidence. Send that e-mail and it can be read by someone other than the intended party just like a post-card. That e-mail message can be retrieved as evidence from your computer or from the recipient’s computer. Deleting it does not mean it is completely erased. Go to your office building and use the underground parking garage with your card, and your whereabouts are registered.

There are other ways of leaving a trail of evidence. There are cameras at intervals on major

* Also published in Law Times

highways and can zoom in on your license plate and expose where you were at a particular time. Use the 407 and your entry and exit points are majestically recorded for posterity. Enter a bank or school or department store and the camera will catch your pretty face.

There are two challenges: Do you know where and how to get that evidence that you desperately need to win your case? The second challenge is: will the courts admit your wonderful and novel evidence? Evidence may be abundant but if you cannot access it because you don’t know where and how, then this evidence is as useless as if it never existed at all. If this were all, then no harm would occur to anyone. However, if the other side knows about this evidence, they may access it to your disadvantage. If they realize that this evidence, if known by you and accessible to you and if made available would strengthen your case, imagine how stupid you would look to the other side, if you were shown to be totally ignorant of this evidence, and you may never have accessed it or used it. The other side is not going to make that evidence available to you to their disadvantage. Now imagine if your client became aware that you lost the case because you were ignorant of the available evidence that could have won the day.

Suppose you access this evidence but the courts reject its admission, at least you would have tried. The courts are reluctant to admit evidence accessed though modern formats. Despite the increasing avenues for the transmission of evidence, this evidence is also susceptible to fraud and taint. Any enemy can alter documents in the computer, without a trace. Someone can send e-mails using another person’s computer. A fraud artist can steal or access your credit card and do damage to your finances and reputation.

For an advocate, the struggle for the accumulation of evidence and or the fight over its admission or rejection is but two sides of the same coin, the coin being the practice of law. An advocate has to master both the case for the defense and the case for the prosecution. This boils down to the fight over the enhancement or neutralization of evidence.