This is a brief outline of an article that I have posted on the SSRN, using the same title (pdf download). Mobile phone (cellphone) evidence will be among the most frequently used electronically-produced evidence of location. How does a defendant produce “evidence to the contrary” for purposes of challenging its reliability? Rare and very difficult it will be that one might get access to the complex electronic systems involved, to search for such suspected “evidence to the contrary.”
A mobile phone can be located at the time of a particular call by finding the mobile phone tower that directed the call to it or from it. The tower nearest to the mobile phone will process the call unless: (1) it is too busy, requiring the next nearest tower do so; (2) there is an obstruction between the mobile phone and the tower; or, (3) there is a body of water between them. Such call-data is automatically recorded by the mobile phone service provider. See: Wikipedia: “Mobile phone tracking,” which says that tracking precision can be down to 50 meters in urban areas, by interpolating signals between adjacent towers.
The admissibility of (acceptance of) such evidence in, R. v. Oland 2015 NBQB 245 (September 2, 2015) led to a conviction for second degree murder. It revealed (paragraph 11), that Rogers Communications receives, by way of court-ordered production, approximately 1,500 requests per year for data as to calls and tower locations.
The prosecution (the Crown) provided evidence as to, “circumstantial guarantees of trustworthiness,” about which the trial judge said during this pre-trial hearing to determine admissibility (para. 64):
“I fully recognize that the evidence on the operation of Rogers’ computer systems in relation to the source records is minimal. But, in the absence of evidence to the contrary, in my view the Canada Evidence Act really does not demand more in circumstances such as these: s. 31.3(a), requires only evidence capable of supporting a finding of proper or unimpaired operation of the relevant electronic document system. The proponent has only an evidential burden.”
For purposes of this discussion, mobile phone tower location data involves two technologies: (1) that which provides the mobile phone services and thereby produces the data that is recorded in Rogers’ electronic records management systems (ERMSs), and is later made available to the police; and, (2) the technology upon which Rogers’ ERMSs are based, and is therefore that which is depended upon to accurately store and retrieve such data. Together they constitute a single system. In regard to “best evidence rule” issues, admissibility of an electronically-produced record requires proof of the “systems integrity” of the ERMS in which the electronic record was recorded or stored, as stated in s. 31.2(1)(a) of the Canada Evidence Act (CEA), or a provincial or territorial Evidence Act in civil proceedings.
The “systems integrity” of such large and complex ERMSs as is Rogers system, requires in fact but not yet in law, certification of compliance with established, authoritative standards such as the National Standards of Canada for ERMSs or with those of the International Organization for Standardization (the ISO). See the reference to such use of standards in s. 31.5 CEA. But because of its “unawareness” of such technology and its standards, the case law doesn’t require that.
- Given the complexity of the technologies involved, and the size and complexity of Rogers’ systems, the division made in Oland between: (1) the “evidential burden,” upon the Crown prosecutor to provide “circumstantial guarantees of trustworthiness”; followed by, (2) the burden upon the accused person to produce, “evidence to the contrary,” in effect placed a much more onerous burden upon the accused than was placed upon the Crown.
- The necessary “evidence to the contrary” would require evidence:
(A) that the Crown’s witnesses who provided such data to the police, did so in an improper fashion; and, (B) what are:
(1) the prevalence of serious records management defects in Rogers’ ERMSs, as could be determined only by examination by experts in ERMS technology, applying for example, the National Standards of Canada: (a) Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34”); and, (b) Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (2000) (“72.11”), and whether they are applied as part of the regular maintenance of Rogers’ ERMSs; and,
(2) there being unacceptable error rates in the software programs used by Rogers’ systems.
It would be impossible for the accused to provide such evidence. He wasn’t present when the data was accessed and provided to the police so as to be able to observe if that was done properly. And such requires expert advice. As to (B), the cost of the necessary expert examination of Rogers’ systems would be at least $50,000. And thirdly, obtaining the necessary court order for access to those systems would require: (1) a cogent reason to suspect such inadequate operation, because purely speculative “fishing expeditions” are not allowed access (R. v. O’Connor 1995 CanLII 51 (SCC) at paras. 95, 107, 125, 141-144, and 182)); and, (2) sufficient answers to Rogers’ objections as to: (a) violating the privacy and confidentiality of its customer data; (b) protecting its privacy and intellectual property rights and those connected with the design of its systems and the software it was using; and, (c) the time, cost, and disruption caused by having Rogers’ employees submit to the necessary interviews by the accused’s experts. They would have to be very detailed and technical interviews before the hardware and software itself could be examined. (I know these things from having worked with experts in ERMS technology for many years, and been a legal advisor in the drafting of the national standards, 72.34 and 72.11.)
- The “circumstantial guarantees of reliability” was evidence based upon the presumptions of “systems integrity” set out in s. 31.3 CEA. They allow a system to prove itself by way of evidence that it was “operating properly” and, “in the usual an ordinary course of business.” That’s like finding such guarantees of reliability that a person is in good health and doesn’t have cancer because he says, “I am in good health and I don’t have cancer because I have experienced no indications of cancer.” To the contrary, that needs an independent report from a doctor who has applied established principles and procedures of medical science. The indications of reliability and circumstantial guarantees of reliability have to come from an adequately qualified source. In Oland they didn’t.
In order for those phrases in s. 31.3 to provide sufficient evidence of reliability: (1) they have to be given objective meanings, rather than subjective meanings as determined by the operation of the electronic system itself; and, (2) be based upon authoritative standards. Such systems are far too varied in quality, size, and complexity to find “circumstantial guarantees of reliability” in whatever way an organization chooses to operate, good or bad. That’s why such evidence has to be provided by those people who are accountable for “systems performance,” and therefore can testify as to how exactly the system does operate. Making such people available for cross-examination is the only possible way by which the defence could provide “evidence to the contrary.” They can be tested as to being a suitably qualified source. Does their ERMS comply with the National Standards of Canada for electronic records management? That was not part of the evidence.
But in Oland the presumptions in s. 31.3 CEA were held to be satisfied by the evidence of security employees who performed the very limited and routine task of drawing from Rogers’ ERMS the data requested by the police. They have: (1) no accountability for the performance of Rogers’ systems; (2) no expertise or professional qualifications as to the required operations of such systems; and, (3) could not provide any evidence as to the applicable authoritative national or international standards and whether they are used in Rogers’ maintenance procedures. Therefore, they could provide no expert evidence as to the quality of the system’s storage and handling of the data from the time it was first recorded until so provided, and therefore no credible evidence of, “circumstantial guarantees of reliability.” They are not a suitably qualified source. Therefore there was no possibility of providing “evidence to the contrary” by cross-examining qualified people who are accountable for “system’s performance and integrity.”
- And because such people were not made available for cross-examination, there was not a sufficient opportunity to challenge the accuracy of the data provided before it was ruled to be admissible in Oland. But the location of the murder victim’s mobile phone was critically important to the Crown’s case because it was believed that the murderer had taken it with him and was in possession of it when a particular call was made to it when it was located at a particular place. The murderer and life imprisonment might thereby be decided, depending upon what the jury thought of such evidence.
- The Stinchcombe disclosure rule will not work adequately if the “fruits of the investigation” required to be disclosed to defence counsel (R. v. McNeil, 2009 SCC 3, at para. 17), do not include information as to the composition, standards, and maintenance of the technology that produces the evidence. Otherwise, defence counsel do not know what they do not know and can demand if not provided.
The necessary evidence of reliability
The evidence of fundamental importance that was missing from the evidence presented by the Crown in Oland was: (1) descriptions of the technologies used for records management; (2) evidence as to their known weaknesses and the procedures used to prevent them from affecting Rogers’ operations; (3) evidence as to the maintenance procedures for those technologies; and, (4) their history of performance. In more general terms, the same was asked for by defence counsel—see paragraphs 35 and 60 of Oland. And defence counsel also pointed out that (para. 35):
… the automatically collected original source data no longer exists and that there is no evidence “whether Rogers’ IT employees perform testing of the accuracy of the data reproduced in CDRs as extracted from Rogers servers via Cognos” [Rogers’ software].
The analysis in Oland by Mr. Justice J.J. Walsh is extensive and impressive (as it is in all of the several Oland decisions). But the case law he had to apply, along with the other judicial writings he relied upon, all show a lack of understanding of records management technology. It doesn’t deal with: (1) the great size and complexity of such systems—they operate using tens of millions of lines of software code; (2) the National Standards of Canada for electronic records management; (3) the serious, and very common errors in ERMSs; and, (4) the need for ERMS software with acceptable error rates. Such authorities can lead to a faulty application of the records provisions of the Canada Evidence Act.
A 2002 study commissioned by the U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) concluded that, “software errors cost the U.S. economy $59.5 billion annually.” And: “Software developers already spend approximately 80 percent of development costs on identifying and correcting defects, and yet few products of any type other than software are shipped with such high levels of errors.” The “update” notices we receive are often corrections to errors in software.
But as to a practical procedure, although the evidence of those who are accountable for the performance of mobile phone systems is vitally important, they should not have to testify in court hundreds of times a year. Therefore a certified certificate system is necessary, comparable to that used to provide evidence of breathalyzer readings, and of blood samples, for impaired driving and “over 80” prosecutions (Criminal Code ss. 253, 258(1)(d)-(i)).
In comparison with the electronic systems used in Oland, use of breathalyzer devices is subject to these protections: (1) the choice of such devices as to quality is subject to the, Approved Breath Analysis Instruments Order, SI/85-201/; (2) they must be used by a “qualified technician” (Criminal Code ss. 254, 254.1); (3) applications can be brought for orders for the production of their maintenance logs—see the decisions that have cited R. v. Kilpatrick, 2013 ABQB 5 (paras. 48-99), leave to appeal refused, R. v. Kilpatrick 2013 ABCA 168; and, (4) in relation to such evidence, the National Standards of Canada for electronic records management were applied in, R. v. Oler, 2014 ABPC 130.
Mobile phone systems are many times more complex and subject to considerably more variation—variation during the many months or years before a lengthy, complex police investigation leads to a request for evidence and information about particular mobile phone communications. For example, original source data gets deleted, as it was in Oland. And given the great potential differences in their structure, software, maintenance, use, and history of performance, such systems must be assumed to be more vulnerable to error than are breathalyzer devices.
Perhaps there was an unfair trial due to the case law-driven inadequate opportunities to: (1) provide “evidence to the contrary”; and, (2) to challenge its all too easy acceptance of “guilt by electronic device.” The police and the Crown had access to the large, very complex ERMS that produced the critically important evidence, but the defence did not. Nor does it appear that the Crown, as part of its necessary disclosure, provided details as to the nature of its technology, weaknesses, vulnerabilities, safeguards, and history of performance. If the result was, “guilt by electronic device” because it was, in effect, granted an unchallenged “presumption of regularity,” it needs a new trial.
Oland was sentenced to life imprisonment, but allowed the minimum parole ineligibility of ten years, which was the recommendation of the jury (R. v. Oland, 2016 NBQB 43, at para. 36 (Feb. 11, 2016)).
A very large part of the evidence used in legal proceedings now comes from electronic systems. The law does not provide sufficient opportunity to challenge its reliability. And so, to live in an electronic world, litigation, both civil and criminal, may have to cost more. That’s one of the reasons why certified certificate systems are put into the law, i.e. “paper instead of people as witnesses,” but with an opportunity to apply to have the certificate-makers attend for cross-examination (e.g., Criminal Code s. 258(6)), and s. 540(9)). As to the fallibility of data and records produced by complex ERMSs, see the full article posted on the SSRN, and these two: (1) “Admissibility of Electronic Records Requires Proof of Records Management System Integrity” (pdf; SSRN, September, 2015); and, (2) “Records Management Law – A Necessary Major Field of the Practice of Law” (pdf.; SSRN, December 1, 2015). Appendix B of the full article outlines the contents of the 72.34 National Standard of Canada, and Appendix D is a list of the electronic records and business records provisions in all of the Evidence Acts in Canada. Appendix C is a description of the “Linux kernel,” a very widely used software operating system of typically great complexity and voluminous software.