Now that this is out of the way, I have to say that I completely agree with the Law Society’s best practice recommendation about virtual commissioning that I recently saw. Let me explain why.
Law Society of Ontario published a virtual commissioning best practice recommendation on its website. I don’t known when they did it because the page does not have a date. You will have to take my word for it or google it yourself (because I can’t link to it without requesting and obtaining a written consent of the Law Society—sorry for going on and on about this).
The gist of the recommendation is two-part. First, it’s to protect the integrity of evidence and of administration of justice. Commissioners get their power to administer oaths and affirmations on condition that they screen witnesses and documents for certain attributes. For example, commissioners must know or verify witnesses’ identity, make sure that witnesses give evidence freely and knowingly, and see that the oath or affirmation appears to bind the witness’s conscience. Modern technology is not yet where we can simply assume that virtual commissioning will satisfy these requirements. I will go into the first principles of commissioning below to show why even such a technology proponent as I agrees with the Law Society on this.
Second, it’s to protect witnesses and clients (also commonly known among lawyers as protecting yourself.) The witness and the commissioner may execute different or wrong documents by mistake because they rely on imperfect technology and couriers to exchange documents rather than directly hand each other the same document for signing. Voice communications may be unreliable and the witness may assume something they say is true but fail to notice that the commissioner misheard them or did not hear them at all.
Both grounds for recommending against virtual commissioning are valid and they should apply to both commissioning affidavits and examining witnesses by video conference.
But first consider the single most basic duty of the commissioners under Ontario law (Commissioners for taking Affidavits Act, s. 9–11):
9 Every oath and declaration shall be taken by the deponent in the presence of the commissioner, notary public, justice of the peace or other officer or person administering the oath or declaration who shall satisfy himself or herself of the genuineness of the signature of the deponent or declarant and shall administer the oath or declaration in the manner required by law before signing the jurat or declaration.
10 Every commissioner, notary public, justice of the peace or other officer or person administering an oath or declaration who signs a jurat or declaration without the due administration of the oath or declaration is guilty of an offence and on conviction is liable to a fine of not more than $2,000.
11 Every one who in any action or proceeding or upon any application or other proceeding out of court, or for the purpose of making or maintaining any claim, files, registers or uses or in any other manner makes use of any oath, affidavit or declaration knowing that it was not taken, sworn to or made in conformity with section 9 is guilty of an offence and on conviction is liable to a fine of not more than $2,000.
The entire justice system and many commercial transactions depend on their participants taking the truth of their statements seriously. The root of this dependence is in those times when it was impossible to give a mathematical guarantee of truthfulness of statements (now you can mathematically guarantee the truth of some statements with cryptography—this is why Bitcoin and other cryptocurrencies are possible).
We still very much live in those same times despite advances in technology that eliminates some need to trust human beings. To approach the truth, our courts, government institutions, companies and lawyers need to trust those who personally observed relevant events.
The law developed methods to minimize chances of lying and maximize chances of hearing the truth from a witness. The two main methods are oaths or affirmations and cross-examination by an adverse party.
I want to focus on the first method. It works by a combination of fear and conscience. Oaths, for example, require the witness to appeal to their God, both as a way to ensure that the witness is submitting to their highest ethical code in declaring the truthfulness of what they say and as a scare tactic that assumes that the witness takes consequences of sin seriously.
I am not kidding. This is section 16 of the current Ontario Evidence Act:
Where an oath may be lawfully taken, it may be administered to a person while such person holds in his or her hand a copy of the Old or New Testament without requiring him or her to kiss the same, or, when the person objects to being sworn in this manner or declares that the oath so administered is not binding upon the person’s conscience, then in such manner and form and with such ceremonies as he or she declares to be binding.
Despite the apparent old-fashioned style of this law, its rationale is completely logical: when the law depends on a person to tell the truth, one of two best ways to ensure this is to appeal to this person’s deepest held ethical code. For Christians, it is the Bible. For non-Christians, it is another book or symbol. The dichotomy is discriminatory and old-school but the logic of calling upon believers’ religion makes sense.
The lesson for commissioners is do not administer oaths to non-religious people. Another lesson is it’s not just about the signature. The law expects you to administer a ritual because that’s the best truth-finding tool the law has (apart from the threat of some variant of hell for religious people, or jail time for non-believers). You will breach your duty to the law if you treat this as only a signature exercise.
It is hard and almost impossible to conduct rituals that tickle a person’s conscience through the Internet or by phone.
There is a non-religious alternative to oaths in the Evidence Act (s. 17(1)):
A person may, instead of taking an oath, make an affirmation or declaration that is of the same force and effect as if the person had taken an oath in the usual form.
I would not say that affirmations somehow dispense with ritual. In a 2014 Ontario Superior Court case (Waisberg v. Inwood, 2014 CarswellOnt 5569, 2014 ONSC 2282 at para. 35), this is what a judge wrote on this subject:
The taking of evidence under oath or solemn [emphasis mine] affirmation is a fundamental aspect of our system of justice. It imposes responsibilities not only on those who provide evidence but, also, upon those who take such evidence as commissioners for oaths, notaries public or other individuals authorized to do so by virtue of their office or professional status.
How solemn is Skype or phone? I assume you agree with me that commissioning involves ritual and requires administration of a solemn procedure. By the way, a Law Society panel found that a lawyer who commissioned a document over the phone committed misconduct. The witness was in Malaysia and the document declared that it was sworn before the lawyer in Toronto (Law Society of Upper Canada v. Billy Wong, 2009 ONLSHP 0060 at paras. 141-145, 192).
To sum up, one of the main objections to virtual commissioning is that it does not support solemnization of evidence—at least not at the level of technology with which the Ontario legislature, the Law Society of Ontario, and most lawyers and judges are familiar. Judges (and the Rules of Civil Procedure) already squint suspiciously at what parties try to pass in front them through affidavits, for example in default, ex parte or summary proceedings. Internet commissioning mills will not help.
Another objection is that as technology gets better at creating presence and approaches the standard required for sufficient solemnization, it also perfects deep fakes. In fact, pre-generated deep fakes already exist. It is very easy to conceive live deep fakes, at least for those of us who tried filters in Instagram stories. With virtual commissioning, you need to authenticate not only the witness but also the video and audio data transmitted from the witness! If you have the first idea about how to do it, please let me know.
Even if we lose faith in humanity and conclude that solemnization is not feasible anymore because the skin on people’s conscience is so sick now that you can’t tickle it anymore, the sole remaining factor—fear—still will not stop fraud and deep fakes where third parties steal identities and manipulate commissioners through computer-generated speech and video.
An objection to virtual commissioning is not an objection to technology. It is an objection to hacking evidence rules to make lawyers’ lives easier. It will come at a great cost to the current process and justice system. Virtual commissioning is not using technology to improve access to justice. It is trying to virtualize a process the whole point of which is personal presence.
Not everything should be adopted to technology. Some things should be redesigned from scratch to use technology. Apple did not make the keyboard better; it invented the touch screen. Google did not make it easier to communicate with a translator online; it offered machine translation online.
We can do the same with evidence and the first step would be recognizing some peer-to-peer decentralized network records as sufficient evidence admissible in court without proof. That would be using technology to advance access to justice. As for virtual commissioning, it is just a gimmick.