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Electronic Systems Are Trusted Far Too Much as to Producing Reliable Evidence – the Oland Example

Most of the evidence now used in legal proceedings and for legal services comes from complex electronic systems and devices. But because of ignorance of technology in general, lawyers don’t challenge the reliability of such frequent sources of evidence. As a result, computers, their software, and computer storage, are dealt with as though they were infallible producers of evidence. As a result, so does the law of evidence. But the technical literature warns repeatedly that software-based devices and systems are far from infallible. Therefore, the evidence they produce may not be reliable. The following articles provide several examples and accompanying commentary (articles cited herein without named authors are mine):

Challenging Electronic Systems’ and Devices” Ability to Produce Reliable Evidence” (SSRN, March 25, 2019). There is a summary of this article posted at, Slaw April 19, 2019. And see also:

Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (SSRN, October 13, 2016).

Since then, there is this example of critically important mobile phone tower tracking evidence that was the basis of a conviction for second degree murder at a first trial, later found to be faulty before the re-trial: R. v. Oland 2018 NBQB 259.[1] Quoting from the trial judge’s decision as to the admissibility of that evidence at the re-trial (para. 12):

The Defence submits that newly uncovered evidence concerning a problem with the computer program used by Rogers Communications (“Rogers”) to extract text message records[,] call into question the reliability of the Richard Oland CDR [call detail record]. That evidence, together with Rogers’ failure to disclose the problem, undermines the integrity of the electronic documents used to create the Richard Oland CDR such that the “presumption of integrity” requirement under section 31.3(a) of the Canada Evidence Act (the “CEA) is not satisfied.

In the very authoritative book by Stephen Mason and Daniel Seng (eds.), Electronic Evidence 4th ed. (2017),[2] there are several passages warning of the prevalence of faults and errors in the software by which electronic systems and devices operate, such as the following:

(6.112, p. 143): In summary, faults in software and errors relating to the design of software systems are exceedingly common.

(6.115, p. 144): Software will continue to be unreliable. By providing a general presumption of reliability to software, the law acts to reinforce the attitude of the software industry that the effects of poor-quality work remain the problem of the end user.

(6.118, p. 145): Modern digital systems are so vulnerable for a simple reason: computer science does not yet know how to build complex, large-scale software that has reliably correct behaviour.

(6.105, p. 140): This weakness is now recognized by some of the organizations that produce devices and software. Microsoft and Apple are among a number of companies that have adopted a ‘bug’ bounty programme to reward professionals who test and find errors in the software. The U.S. Department of Defense has also taken this approach, as has Google in respect of cryptographic software libraries.

And compare this denigration by Stephen Mason of the dangerous use of “common sense,” with the high veneration of common sense in the quotation that follows from Judge Paciocco’s article:[3]

(6.228, pp. 191-192): This is why lawyers and members of the judiciary need to understand two significant issues about the world in which we live now, and the reliance on modern technology. First, the evidential presumption, which is a delusion, that software code is ‘reliable’ must be reconsidered. The rationale used by judges that software code is part of a ‘notorious’ class of machines, or the operation of computers and other such devices are ‘common knowledge’ must be reversed. … yet lawyers and judges rely on ‘common sense’ when many ‘well-established principles are positively contrary to common sense. Justifications around loose notions of ‘notorious’ or ‘common knowledge’ in respect of software programs is irrational. Justice should not be based on concepts with no basis in logic or science. It is necessary for lawyers and judges to take account of this element of irrationality that has been the law for far too long. …

(6.229) Second, judges should understand the necessity of requiring the disclosure of software code and relevant audits of systems, and determine whether security standards, if applied, have been applied properly. These steps ensure that the judicial process more fully comprehends the evidential reality of software code and ‘digital systems’, and helps to preserve fairness in legal proceedings.

In sharp contrast, Judge Paciocco states of the essentially important use of common sense in relation to the application of the rules of evidence when applied to evidence produced by electronic technology:[4]

(p. 201): “When these provisions are given an overlay of common sense, they can perform their function unobtrusively”;

(p. 226): “As can been seen, for the most part the laws of evidence are suitable without radical transformation to cope with new technologies”; and,

(p. 228): “The law is well equipped for coping with the law of evidence in the technological age.”

All of the above quotations from Stephen Mason’s publications[5] show a very different approach to the use of evidence produced by complex electronic systems and devices than that advocated by Judge Paciocco. Apparently, Judge Paciocco’s belief in the great embodied strength and durability of the current state of the rules of evidence, makes unnecessary, in preparation for writing such an article as to the application of those rules of evidence to such complex technology-produced evidence: (1) doing a literature search; (2) obtaining some technical advice; and, (3) considering the applicability of standards, such as for example, the National Standards of Canada concerning the nature, principles, and practices of electronic records management systems, that were in existence at the time his article was published in 2013.[6] Nevertheless, the article was cited several times, accompanied with considerable praise of Judge Paciocco, by Judge Walsh in this decision as to the admissibility of mobile phone tower tracking data in: R. v. Oland 2015 NBQB 245; at: paragraphs, 41, 43, 48, 49, 54, 79, and 104, in a judgment containing 126 paragraphs. It is therefore an article that advocates the opposite of the necessary degree of understanding of technology to be able to adequately challenge the ability of electronic systems and devices to produce reliable evidence. The authorities cited herein can compensate for that.

As to the impact of the error in Rogers Communication’s computer program for extracting text message data records and its failure to disclose, upon the evidence allowed to be used in the Oland non-jury re-trial, all of the first trial rulings were adopted. But defence counsel told me that, “the evidence did play out somewhat differently.” Mr. Justice Morrison’s decision as to guilt is expected on July 19, 2019.

All of which means: (1) the reliability of software-based systems and devices to produce reliable evidence should always be challenged; (2) our legal education has a sizeable hole in it, with the result that lawyers don’t have sufficient knowledge of the technology that produces very commonly used evidence so as to be able to challenge its reliability adequately; (3) such technology will be constantly changing and increasing the various types of electronic systems and devices that produce commonly and frequently used types of evidence; (4) only the lawyers whose clients can afford to hire the experts necessary to educate their lawyers about such technology will be adequately prepared; and therefore, (5) law societies need to create a new specialist lawyer—the career, legal research lawyer, part of whose required expertise is sufficient knowledge of such technology that produces such frequently used evidence, so as to be able to advise all other lawyers who must cope with such evidence both in legal proceedings and for legal services; but, (6) that will require that the services of such specialist research lawyers be made available in centralized support services, for which the only precedent and operative example is, LAO LAW at Legal Aid Ontario (LAO).

LAO LAW began with my first day of employment at LAO on Tuesday, July 3, 1979, for purposes of creating it. It now has 40 years’ experience providing such legal research services, in spite of several cuts in LAO’s funding during those years. Therefore, its success and present operation are not to be judged by the standards of a competitive commercial market, but rather by its ability to have survived the very uncertain and politically capricious world of government-managed social services.

But most importantly, LAO LAW is a precedent for what is necessary if law societies, rather than government-sponsored socialized law programs, are to solve the “access to justice problem” (A2J problem) that is the unaffordability of legal services for the majority of society that is middle- and lower-income people, which is, the conversion of the legal profession in Canada from its present cottage industry method of producing legal services to a support-services method. That is the method by which almost everything, services as well as goods, is now produced.

See the several books concerning such methods and management written by, Richard and Daniel Susskind, plus the other authorities, all set out in the “further suggested reading” list at the end of this Slaw post, “Artificial Intelligence: Will It Help the Delivery of Legal Services but Hurt the Legal Profession? (Slaw, November 21, 2018).

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[1] Dennis Oland was convicted of second-degree murder at his first trial, a jury trial, of bludgeoning his father, Richard Oland, to death. Therefore, there was no judgment providing an analysis of evidence and argument leading to the finding of guilt. The sentencing decision is at, 2016 NBQB 43; and the New Brunswick Court of Appeal’s decision (on an unrelated issue), that lead to the non-jury re-trial is at, 2016 NBCA 58; and the refusal of the Supreme Court of Canada to grant leave to appeal the Court of Appeal’s decision is at, 2017 CanLII 44310 (SCC). The judgments given at the two pre-trial voir dires as to the admissibility of the mobile phone tower tracking evidence in the first trial, make very instructive reading as to issues concerning the burden and onus proof, and the procedure and tests as to providing: (1) “circumstantial guarantees of reliability”; and, (2) “evidence to the contrary”; see: R. v. Oland 2015 NBQB 245, (the admissibility of the data produced by the critically important mobile phone call to the victim’s phone), and, 2015 NBQB 244, (the admissibility of the expert opinion evidence as to the location of the phone that was based upon that data). Read these two decisions in that order because the voir dires were conducted in reverse order due to difficulties concerning the availability of witnesses.

[2] A copy of the book can be downloaded, online: <http://stephenmason.co.uk/books/electronic-evidence http://stephenmason.co.uk/books/electronic-evidence>.

[3] (2013), 11 Canadian Journal of Law and Technology 181. The author is now, Paciocco J.A., of the Court of Appeal for Ontario.

[4] Ibid.

[5] In addition to his book, Electronic Evidence 4th ed. (2017), are these articles by Stephen Mason: (1) ‘“Trust’ Between Machines? Establishing Identity Between Humans and Software Code, or whether You Know it is a Dog, and if so, which Dog?”, (2015) Computer and Telecommunications Law Review, Volume 21, Issue 5, 135-148; and, (2) “Artificial Intelligence: Oh Really? And Why Judges and Lawyers are Central to the Way we Live Now—But they Don’t Know it” (2017), 23 Computer and Telecommunications Law Review, Issue 8, 213-225.

[6] The following National Standards of Canada concerning electronic records management systems were in operation in 2013: Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005; and, the “imaging standard,” Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (updated in 2000). But both were rendered inoperative by the declaration of this second edition of 72.34 as a National Standard of Canada, in March, 2017: Electronic Records as Documentary Evidence CAN/CGSB-72.34-2017. It is said to incorporate both of those previous national standards.

But, before relying upon it, or advising clients to use it, read about the inadequate procedures by which it was drafted, in, “Innovation Canada, IP, and Dependence Upon the Standards Council of Canada” (SSRN, February 2, 2018).

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