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A Card Cannot Be Electronic: R v Albert 2016 NBQB 154

New Brunswick drivers are required by the Motor Vehicle Act to carry with them or in their vehicle a card issued by their insurer in a form approved by the government. A motorist who was asked for the card produced an image of a genuine card on her mobile phone. The New Brunswick Court of Queen’s Bench recently held that the image was not good enough. R v Albert, 2016 NBQB 154.

The Decision

At a first trial before a provincial court judge, the court held that the phone display satisfied the demand to show the “card”.

The Crown appealed this ruling to the Court of Queen’s Bench, which reversed the lower court.

The appellate decision turned on a plain-language meaning of “card” – the term needed paper or cardboard, not a digital image. The charge was not “driving without insurance”, for which the digital evidence might well have been sufficient, and in any case more evidence could have been adduced in court. Carrying the card was a separate obligation that depended on its own statutory language – and not the short form written on the ticket, which had suggested to the lower court that the essence of the offence was to show evidence, not to show the card. The court was not prepared to turn a form rule into a content rule; that was a task for the Legislature.

The (Missing) Legislation

The decision does not mention New Brunswick’s Electronic Transactions Act, that province’s implementation of the Uniform Electronic Commerce Act. The absence of the most relevant statute may be explained by the fact that the accused was self-represented. Whether the Crown should have brought it up, even to submit it was not relevant, I leave to others.

It seems to me that the result would not have been different under the statute.

The basic principle of the Act is in section 7: “information shall not be denied legal effect or enforceability solely on the ground that the information is electronic”. However, the statute did not demand information, it demanded a card.

Section 9 might appear to be assistance to the accused: “A legal requirement that information be in or on a particular form is satisfied by electronic information that is in or on the same or substantially the same form.” However, this provision is best read as dealing with formatting of information on forms to be filled out, not with the medium on which the information is conveyed. It is hard to argue that an electronic document is in or on substantially the same physical form as a card. However, such a document can clearly show the same information in the same format.

As noted, the relevant provision of the Motor Vehicles Act requires the card and does not mention its content or format, except as implied by reference to the need for the Registrar to approve it. So section 9 turns out to be no help in the phone-as-card discussion.

Going back to section 7, its non-discrimination, or “no denial of legal effect,” rule is subject to section 4. Section 4 says that nothing in the statute requires any person to use or accept electronic information. That reflects the intent of the Act – and the uniform legislation and its provincial implementations across the country – namely to remove legal barriers to the use of electronic communications among parties who wanted to use them. The statute intended to remove doubt whether such communications could have legal effect.

However, this intent applied only to consenting parties. Any party still had the right to say No. This provision is a key element of the security analysis, too. The right to say No is the right to say Yes, if … for example, the document is sent in encrypted form, or authenticated by specified methods, or whatever.

In this case, the province had not consented to the use of electronic information, however reliable. The motor vehicle statute said that a card was needed, and the e-transactions statute let it stand. Though the Act binds the Crown (section 6), the binding does not remove the need for its consent.

And it is the Crown whose consent is relevant, not that of the police officer to whom the card is to be shown. One can imagine an individual officer exercising some discretion whether to lay charges against someone offering a digital “card”, but when someone asks, or when an officer – as in this case – does not accept it, then instructions must be sought from a higher level. The prosecution is brought in the name of the Crown, thus the style of cause. Then the court gets to say who is right.

Sections 15 and 16 of the Electronic Transactions Act provide an administratively simple method by which the Crown can exercise its consent. They give the responsible minister the ability to determine the grounds on which e-information would be accepted for this purpose, without needing to amend the motor vehicle statute itself. Here, no determination had been made. The court in Albert decided that a card could not be a digital card without such a choice by the Crown.

The Uniform Act puts special protection around the government’s use of e-communications, largely, it would appear, to ensure that government would not be compelled to accept such communications in a form or using technology that it could not handle. The government was authorized to set up “information technology requirements” that people submitting e-information would have to meet. Consider section 6 through 11 of the Uniform Act and the second-last paragraph of the general introduction to that document. (Ontario’s Electronic Commerce Act, 2000, refers to “public bodies” rather than to “government”, but the effect is the same.)

New Brunswick has no special rules for e-communications to government, except the sections mentioned. It relies on the general consent rule, but that seems to be effective.

The Uniform Act contains another provision that also could have helped the prosecution in New Brunswick, but the province did not implement it:

15. Nothing in this Part limits the operation of any requirement under [enacting jurisdiction] law for information to be posted or displayed in specified manner or for any information or document to be transmitted by a specified method.

A rule requiring that information appear on an approved form of card could fall into this exception to the general non-discrimination rule.

Observations

Limits to the electronic transactions statute

Though the Uniform Electronic Commerce Act and its provincial and territorial progeny aimed to remove barriers to the use of electronic communications, notably those found in legislation written before such communications became familiar, they do not remove all the barriers. While they say they yield to provisions that expressly authorize, prohibit or regulate e-communications (New Brunswick’s section 5, Uniform Act’s subsection 2(5)), they also stop short of other kinds of rule. In Albert, the Electronic Transactions Act would – in my view, if it had been raised – been stopped by a card. The purpose and the wording of a legislative barrier are still relevant.

Limits to common law developments

The Uniform Act and its implementing statutes are all written as if e-communications were not in themselves writing. This perspective has been called into doubt as time passes and as people become more comfortable with electronic documents. Why should they not be treated directly as writing, without searching for a “functional equivalent” under the e-commerce statutes?

Most of our law has not gone that far, and there may be good reasons why not.

But even in a world where e-communications are writing, some extra rules would be needed to handle all the demands for documentation. The rule at issue in Albert was not a writing requirement, it was a card requirement: not about the information but about the medium.

Evidence considerations

The court in Albert mentioned the New Brunswick and federal evidence statutes as examples of legislation that had dealt with the authenticity of electronic records. There was no equivalent openness to the electronic age in the Motor Vehicles Act. No argument was made that the evidence statutes needed to be considered to dispose of the case. Those statutes deal with admissibility, but that question did not arise in Albert. The digital “card” was before the court – in a printout – and its authenticity was not questioned. One can leave for another day how the rules of evidence would have applied if a digital “card” were generally acceptable, but the one presented by the driver was alleged to have been fake or altered.

Policy issues

The Queen’s Bench judge found against the accused on the law, but his sympathies on the facts were fairly clear. He suggested, though could not order, that a discharge without penalty would be the appropriate result when the matter went back to the trial judge for sentencing.

But this raises some interesting policy issues: if the Legislature should do something, or if the minister should exercise his or her powers under sections 15 and 16, what should they do?

One can have some sympathy for the Crown, whether seen as state, prosecutor or police officer. How would one authenticate a digital card, if it were to be authorized? How hard would it be for an uninsured driver to fake one and upload it to a phone? Authentication of digital records can be difficult, notably in these circumstances: a small device, not much detail, shown in a roadside conversation. Security measures built into physical media – special paper, holograms, embossed seals, etc. – are not usually transferable to their digital equivalent.

In short, making an electronic version official is not just a matter of waving a decree at it.

The Albert court did raise one policy issue, without attempting to resolve it, given the ruling. Are there privacy implications in having to hand over one’s phone to the police for inspection, even though it is just to read the “card”? A smartphone may contain a lot of personal information of interest to law enforcement. Is there a risk of overreaching, when the source of that information is just handed over on a routine traffic stop? Does the minister have to think about that in determining that a digital display can be a “card”, or can the general laws on privacy be trusted to operate appropriately?

Conclusions

One may draw two conclusions from R. v Albert. First, our courts and Crown counsel should be more familiar than they are with the legislation of general application that deals with the legal status of electronic communications and documents. These laws have been in force across the country for some fifteen years. The questions are no longer matters of first impression.

Second, the job of law reformers in this area is not and will probably never be completed. Despite the general legislation, which has avoided the need to amend hundreds of statutes one by one, special cases will always arise, and of course technology will continue to evolve. If it’s not a card, it’s a widget; if it’s not a widget, it’s an app. Lawyers and policy developers, do not leave your stations (unless of course technology allows you to work at home.)

Addendum

After completing this column, I learned that the Canadian Council of Insurance Regulators has recently – since the Albert decision – approved a plan to authorize the use of electronic proof of insurance, i.e. electronic “cards” that will be readable on a phone. The Council canvassed a number of policy issues in its consultation report in May 2016 and at its October meeting, approved moving ahead in the first half of 2017. Details of how the policy issues are to be resolved in practice are not given. [update] The Council issued a final report in the winter of 2018, recommending that an electronic proof of insurance be authorized along with a paper proof. It noted some high-level policy and administrative concerns but did not attempt to resolve them. “Those [jurisdictions] who are able to move forward are encouraged to do so, if they have not done so already.”

Ms. Albert was just a bit ahead of her time, it appears.

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