Evidence of Official Documents Online: A Problem?
Governments increasingly are putting official documents online without any paper ‘original’ or equivalent. Does that present challenges in practice for proving those documents?
What is your experience producing in court or generally under the evidence statutes official government documents that appear only online?
There is good statutory support for producing documents ‘printed’ by government, sometimes by class of document but sometimes as broad as ‘other public document’.
Will courts accept a printout of a web page (or, I suppose, a live in-court online presentation of a web page) showing a government URL as being ‘published by the Queen’s Printer’, at least in the absence of evidence to the contrary? Will courts accept online publications as ‘printed’ for this purpose?
Section 25 of the Ontario Evidence Act says this:
Copies of statutes, etc.
25. Copies of statutes, official gazettes, ordinances, regulations, proclamations, journals, orders, appointments to office, notices thereof and other public documents purporting to be printed by or under the authority of [a government in the Commonwealth] shall be admitted in evidence to prove the contents thereof.
Section 21 of the Canada Evidence Act is less fussy about printing, but fussier about the source and maybe about the nature of the document:
Proclamations, etc., of Governor General
21. Evidence of any proclamation, order, regulation or appointment, made or issued by the Governor General or by the Governor in Council, or by or under the authority of any minister or head of any department of the Government of Canada … may be given in all or any of the following ways:
(a) by the production of a copy of the Canada Gazette, or a volume of the Acts of Parliament purporting to contain a copy of the treaty, proclamation, order, regulation or appointment, or a notice thereof;
(b) by the production of a copy of the proclamation, order, regulation or appointment, purporting to be published by the Queen’s Printer;
[and further provisions about treaties and about documents certified by a public official. I am interested in admission of documents without having them personally certified by a custodian.]
I read (b) as meaning that the copy has to be published by the Queen’s Printer, not just the official document. Is that right? In any event, is the printout of the official online document a copy for this purpose?
Would it help answer the question to refer to the electronic document provisions of the statutes – s. 34.1 for Ontario, s. 30.1 for Canada? (They reproduce essentially the Uniform Electronic Evidence Act rules.) They address authentication issues and the best evidence rule but do not expressly apply to the official documents rules.
Should the statutes be amended to keep pace with governmental practices?
…………
I am aware of Ontario and federal statutes about proof of official law found online – statutes and regulations. (They appear of course in print as well.) My question is about other official documents.
A reply to John Gregory’s Slaw post, dated January 16, 2015, “Evidence of Official Documents Online: A Problem?”
Yes John, these amendments are needed:
(1) to make clearer the definition and scope of documents that come within s. 25-type provisions; and,
(2) to expressly state that proof of the compliance the electronic records management system (the ERMS), in which the records in question are stored, with Canada’s National Standards of Canada for electronic records management, establishes the admissibility of such electronic records. Note s. 31.5 of the Canada Evidence Act, s. 34.1(8) of the Ontario Evidence Act refer to the use of standards for such purpose, but they don’t name a specific standard for doing so. Now that can be done. After these provisions were enacted (in 2000), the National Standards of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34”), was proclaimed to be a national standard by the Standards Council of Canada, in December 2005. (There is a committee, sponsored by the CGSB (the Canadian General Standards Board being the standards-writing agency involved) currently revising and updating this national standard.)
Section 25 of the Ontario Evidence Act doesn’t make sufficiently clear the exact type of government and statute-produced records for which it creates an exception to the requirement of the electronic records provisions of the Evidence Acts to prove the “integrity” of the electronic records management system (the ERMS) in which the records in question are stored.
The “integrity” issue, being the word-test imposed by the electronic records provisions of 11 of the 14 Evidence Acts in Canada use (Book 7 of the Civil Code of Québec uses a comparable wording), the “system integrity” concept to create a rule of admissibility, i.e., “proof of records integrity requires proof of record system integrity.” In the absence of a provision such as s. 25 OEA, information as to the state of records management of the ERMS involved, should be required: (1) to be produced by the parties during e-discovery proceedings; and, (2) proved as essential for success at “admissibility of evidence” proceedings.
And, to prove the existence of such “integrity of the records system,” proof of compliance with the National Standards of Canada for electronic records management should be required, that being the only way of determining whether the required level of “integrity” of records management exists. But that is not what is happening in the courts. Instead, the case law in effect perpetuates the pre-electronic, paper records system technology approach to the use of records as evidence. That is, pieces of paper in file drawers, instead of e-records in ERMS’s being exactly as dependent as drops of water in pools of water. “Integrity” is a complex electronic records management concept. More than 200 tests are applied to ERMS’s by experts to determine the state of compliance with the 72.34 national standard. It needs the expertise of experts in ERMS technology, and the “measuring stick” provided by National Standards such as 72.34, with which to determine if an ERMS has the necessary “integrity.”
Having worked with such experts in ERMS technology for many years, I know that the best of institutions often have poor records management habits. That is because: (1) there is no law of general application that requires that records management practices comply with any standard; and, (2) many organizations believe that they “can get along just fine” using only their recently made records,” therefore the quality of records management is ignored. To fix it becomes increasingly expensive with time, particularly so each time new records management technology is installed and new practices applied.
Also, electronic devices and ERMS’s operate on millions of lines software code. The industry average error rate for writing such lines of software is 25 errors per thousands lines of code. For example, a breathalyzer machine having approximately 57,000 lines of software code, which would print out on approximately 850 pages, potentially has 1,425 errors in the software code upon which the outcome of most impaired driving and “over 80” prosecutions depend.
As to the necessary impact upon law and practice that such records management and software defects should have, see: “The ‘Records Management Lawyer’—A Specialist in a Necessary Major Field of the Practice of Law.” And there are other papers concerning the admissibility of electronic records as evidence at this Social Science Research Network site (search under my name, Ken Chase). All available by way of free .pdf download.
But rare in the case law is there recognition of the need to apply the national standard, 72.34. It was however, the basis of the decision in, R. v. Oler 2014 ABPC 130, [2014] A.J. No. 669 (Alberta Prov. Ct., June 19, 2014). It dealt with the disclosure and admissibility of maintenance records, and other records, concerning the Intoxilyzer 5000C, in relation to charges of impaired driving and “over 80” (ss. 253(1)(a) and 253(1)(b) of the Criminal Code of Canada).
But to the contrary, much more typical of the case law is, Zenex Enterprises Ltd. v. Pioneer Balloon Canada Ltd. 2012 ONSC 7243, [2012] O.J. No. 6082, which, in effect holds that the state of a party’s electronic records management system (ERMS) is irrelevant to electronic discovery proceedings. Specifically, it holds (para. 8), that the parties are not to demand to know how searches for relevant records were conducted, nor can they investigate parts of an opposing party’s ERMS, such as hard drives. This ignores the fact that the accessibility and storage of electronic records are essential parts of ERMS technology.
And unfortunately, the same faulty view of the relevance of the state of records management will be perpetuated in the new edition of the Sedona Canada Principles–Addressing Electronic Discovery text, judging by a draft soon to be made available for comment. Such evidence is said not to be relevant to the “process” that is electronic discovery–such being a distinction denying the reality of e-records technology and its great difference from pre-electronic paper records technology. Such guidlines and laws based upon technology cannot be written with indifference to the nature and dangers of such technology and be expected to render adequate “justice.”
But there are signs of more demanding analyses and requirements coming, albeit not yet in the drafting committees of laws and Sedona Canada. See for example: Siemens Canada Limited v. Sapient Canada Inc. 2014 ONSC 2314, [2014] O.J. 1930 (OSC-Master, April 23, 2014), at paras 156-157.
A simpler example is provided by, R. v. Nde Soh, 2014 NBJ No. 41 (N.B.Q.B., 2014, at paras. 20-32). The Court accepted the need to receive evidence on the issue of admissibility as to how the computer system that produced the “electronic documents” worked. The evidence concerned printouts and screen photos of a saved Facebook conversation between the complainant and the accused, the day after an alleged sexual assault. The complainant testified as to how she accessed her Facebook account and how the system worked. The evidence was admitted as electronic documents under the electronic document provisions of the Canada Evidence Act, ss. 31.1-31.8. And see also, R. v. C.M. 2012 ABPC 139 at paras. 47-55.
Because admissibility is dependent upon ERMS technology, such issues can arise equally in all criminal as well as civil cases dependent upon e-records as evidence.
My point is, s. 25 OEA-type provisions as to copies of “official documents” being admissible without proof that they are more than that, do not adequately make clear the scope and type of government documents they apply to. That is a defect that can render judgments wrong, given the prevalence of ERMS and software errors.
So, demand that there be proof of the state of records management as a requirement of admissibility. Then, let it be for the proponent of admissibility to prove such is not required. And, production of information as to the state of records management should also be an established requirement of e-discovery, but that also is not yet happening.
If such “records admissibility” issues were dealt with at discovery, summary judgment proceedings would more often be available. As to when summary judgment is appropriate, see: Hryniak v. Mauldin, 2014 SCC 7; and, MacDonald v. Chicago Title Insurance Company of Canada, 2014 ONSC 7457, which deal with Rule 20 of the Ontario Rules of Civil Procedure.
The case law is rendered inadequate in such ways of ignorance of the demands of ERMS technology, because of the view that e-records and ERMS technology are just a speeded-up and more conveniently used version of pre-electronic paper records and paper records technology. In fact they are very different technologies, requiring very different laws to regulate their use as evidence. The case law implies that the change to e-records technology is no more than adding a motor to a bicycle; i.e., it’s still bicycle technology. But in fact the change is as great as going from a bicycle to a motor vehicle, and next will be an increase in technical sophistication equivalent to moving from a motor vehicle to an airplane (or space station), as devices for creating, manipulating records, and the data they store, become more complex and varied in their use. Pay the price of the necessary legal infrastructure, or don’t use the technology. Pay the price for using motor vehicles, or go back to using horses. And if that is now too much, walk.
Therefore, the electronic records provisions should be amended by adding a subsection stating that the required “integrity” of the ERMS can be proved by proof of its compliance with the National Standard of Canada,. And there should be a standard-form of certificate of compliance put into the national standard, 72.34. Then such issues as to the “integrity” of records management could be dealt with quickly by a simple exchange of such “certificates of compliance” by counsel at discovery, and acceptance of sufficient proof of compliance with 72.34 at trial.
Basing the operation of an important area of the law upon compliance with a national standard is not without precedent. Section 5 of Part 1 of PIPEDA, the “personal information protection” part, makes compliance with the national standard in Schedule 1, Model Code for the Protection of Personal information, CAN/CSA-Q830-96, mandatory.
The use of electronic records as evidence needs a comparable foundation for their efficient use as evidence. Instead, judges and lawyers, by ignoring the nature of ERMS technology, are deciding by themselves, how the law should deal with that technology. As a result, if expert opinion evidence were used in the way that electronic records are now used as evidence, examination and cross-examination of the qualifications of such expert witnesses would not be necessary nor allowed. The “qualifications” of an electronic record are those of its ERMS.
—- Ken Chasse, Toronto.
And governments are going to have to learn how to treat web content as more than transitory. The law library community has struggled for years to convince the Comms folk in the public service that they can’t just nuke ministry websites after an election or cabinet shuffle. Tools like GALLOP (the government documents portal) goes some way in gathering and protecting born-digital government documents, but none of us pretends that we collect exhaustively.