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“No Parking?” Prove It!

May 30, 2019

Man acquitted on parking ticket because electronic document from online “pay for parking” system not authenticated

In City of St. John’s v. Sean Callahan, the accused had been issued a parking ticket under the relevant city by-law after his mobile home was alleged to have been parked illegally. The motor home had been parked in an area that was clearly indicated by signs to be the site of a “park and pay” mechanism; users were directed to download a parking app onto their phones. The trial judge noted that while the regime expected a certain level of technological sophistication from users, the process to be followed was clearly set out in the by-law and there was a phone number provided on the signage for people needing assistance. The accused testified that he simply did not appreciate the contents of the signage and had parked his vehicle at a parking pole that had no meter, which was permissible under the by-law.

A city Parking Enforcement Officer had accessed the online parking system and obtained a list of vehicles that had paid for parking at the relevant time, and noted that the accused’s vehicle was not among them. At trial he produced a printed copy of this list, which was filed as an exhibit, but he gave no testimony about the online system or how it worked. This proved to be the fatal flaw in the city’s case. Judge Orr began by noting the requirements for prove as regards electronic documents:

[9]              In this case non- payment at the time the ticket was issued was admitted by Mr. Callahan. However I note that when a document is produced at trial, in this case the printed parking record, the prerequisite to its admission is authentication. Methods of authentication include viva voce testimony, common law rules and presumptions, or statutory instruments. (The Law of Evidence in Canada, Fourth Edition, p. 1243.)  Parking Officer Brown did not testify as to how the electronic system worked how or on what system the records were stored or their accuracy. Besides Officer Brown’s evidence there was no other evidence called as to the systems integrity or how the records were stored, created and retrieved no technical evidence of any kind. There are no legislative provisions in the Bylaw itself or the Highway Traffic Act, The City of St John’s Act, The Provincial Offences Act or The Evidence Act that set out how evidence about the payment process and the retrieval of the record from its electronic data base can be admitted and interpreted.

[10]          In Criminal proceedings the admission of digital records is governed by 31.1-31.8 of the Canada Evidence Act. The statutory regime is set up primarily to deal with issues about the integrity of the computer system. It does not deal with the admissibility of the contents of electronic records. Instead it creates two pre-conditions that must be met, the authenticity rules and best evidence rules. Section 31.1provides that a person seeking to admit an electronic document must prove its authenticity by “evidence capable of supporting a finding that the electronic document is that which it purports to be.” Similarly, with respect to the best evidence rule there is a presumption created of system integrity that “there is evidence capable of supporting a finding that the system was operating properly”. This can be easily addressed; R. v. Nichols (2004) O.J. No. 6186 held that viva voce evidence from a system user can be evidence that meets the threshold for both issues and expert evidence was unnecessary. These sections are not part of the evidentiary rules adopted by the Summary Proceedings Act but they do encapsulate in most respects the common law rules that would apply. 

Judge Orr then went on to express the need to balance functional practicality in the authentication of electronic evidence with the need to avoid over-expansive use of judicial notice:

[11]            Judicial notice by a court of facts without the requirement of proof is permissible only with respect to facts: 1) so notorious as not to be the subject of dispute among reasonable persons; or 2) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy and may be noticed by the court without proof of them by any party. (R v Williams1998 CanLII 782 (SCC), [1998] 1 SCR 1128).  Courts have identified the issue of judicial notice as having its own particular problem when dealing with information provided by new technologies. Expert evidence has increasingly but unevenly been held to be unnecessary to explain how technology and social media widely used by the general public and government agencies works. In R. v. Hamilton2011 ONCA 399 (CanLII), [2011] O.J. No. 2306, technicians were permitted to testify about the location of cell phones without being qualified as “experts”. On the other hand, in R. v. Peliech, [2012] O.J. No. 2467, a Mohan voire dire was held to explain how a widely used software program “Lime Wire” was used.  Expert evidence implies that the witness has special knowledge. It seems clear that Courts should accept that technologies broadly used and understood by members of the public do not need expert proof to be accepted. At the same time, judges must exercise caution when taking judicial notice of notorious facts and relying on internet sources of “indisputable” accuracy, such as Google Maps. In R. v. Calvert, [2011] ONCA 379, the trial judge reviewed a Google Map on his own initiative to ascertain the distance between the scene and the police station. This was held to be permissible; however, the closer the judicially noted matter is to the central issue, the stricter the requirements of indisputability and notoriety.

[12]          A Court should adopt a functional approach to new technologies and conduct trials effectively and realistically. At the same time when the technology is being relied on to establish an offence even as minor an offence as the breach of a By Law there needs to be a level of confidence in the evidence presented that would justify entering a finding of guilt.

[13]          In this case, there is no proof authenticating the parking record. The evidence of the Parking Enforcement Officer did not provide any detail or information to establish the reliability or authentication of the parking record. Consequently given this gap absent the creation of a legislated rule the City’s evidence of non- payment is inadmissible.

The City having failed to prove non-compliance with the by-law, the accused was acquitted.

In our view, this otherwise low-stakes case hits a number of interesting points regarding the admissibility and use of electronic evidence. We are past the point where expert evidence is always required in order to authenticate electronic documents, since it is well within the capacity of lay witnesses to testify as to the practical functionality of various kinds of computer systems. As Justice Paciocco has noted, it is not necessary that witnesses understand the entire inner workings of any kind of machine in order to be able to testify as to how they work (see Justice David M. Paciocco, “Proof and Progress: Coping With the Law of Evidence in a Technological Age” (2013) 11 Canadian Journal of Law & Technology 181). Pragmatism is key. On the other hand, while judicial notice is available in some respects, it should be used cautiously. Equally interesting is Judge Orr’s suggestion that the technical requirements for adducing electronic documents, which are set out in the federal and provincial evidence statutes, can be assimilated into the common law for the purposes of cases brought under the Summary Proceedings Act.

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