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Law Society Is Right About Virtual Commissioning

I want to start this column by reiterating how damaging the Law Society of Ontario web linking agreement is. It’s part of the terms of use of the Law Society’s website and it prohibits links to the entire website (except to http://www.lso.ca) without the Law Society’s prior written consent. Google this legal notice because I am not linking to it. (By the way, did Google get LSO’s written consent before indexing its website?) I am not even going to post a screenshot here because of restrictions that the Law Society purports to assert in its terms of use. Find all of the above yourself. It’s enough to say two things about these restrictions: (1) in the age of the Internet, prohibiting links to your public website (which apparently does not use technical means to restrict automated linking by search engines) invites massive breaches of your terms of use not because people are bad but because this is how the Internet works—accordingly, it puts the weight (and enforceability) of LSO’s terms of use in doubt; and (2) it stifles legitimate debate and public access to the many materials on the LSO website that are there to promote access to justice in the first place.

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.

Comments

  1. Hi Pulat,

    Thanks for writing about this issue. I’m struggling to decide whether you are being satirical or not!

    I think the LSO’s position on this issue is disappointing. It seems like the LSO had the opportunity to work with the AG to take a more expansive interpretation but in the end, decided to advocate for the status quo.

    I don’t know why this isn’t being thought of as an A2J issue. Commissioning has to be one of the most common and frequent legal needs of the public. Everyone needs it done at some point for one reason or another. As any lawyer knows you get a lot of requests to do it for people as favours – as much as to avoid the cost as the inconvenience of meeting a lawyer in person to do it.

    Technology to do it remotely combined with some business process outsourcing has the potential to make it cheap, easy and convenient – and to probably allow it to be a viable business done over the internet.

    In my view, the risks here are largely theoretical and not necessarily solved by doing things in persons. Of course, there are risks to using technology or indeed any new tool. Are we really going to regulate by the standard that absolutely no increased risk is acceptable? I feel like worrying about hacking and deep fakes is a real stretch here.

    This is low hanging fruit for allowing innovation and in my view represents a sort of threshold test of whether we as a profession are going to allow our practice to change with the times. The risk of allowing virtual commissioning was considered by the LSO but what about the risks of not allowing it such as impeding competition and innovation and how this impacts consumers, A2J and just more generally the public’s perception of our profession?

    John

  2. Does this mean you would abolish testimony by video conference?

    Do you disagree with British Columbia’s use of a “solemn affirmation” for commissioning affidavits? No book, no token, no god, no religion, just the verbalization of a solemn affirmation to tell the truth.

    Many affidavits are already commissioned without any solemnity at all. Some lawyers don’t solemnly administer the full oath/affirmation for routine affidavits anymore (“blah blah, sign here”). Shouldn’t we be actively policing the use of quick and dirty commissioning if solemnity and the proper physical weight of the commissioning process is a vital part of the search for the truth and the only thing holding back all lies in Hell?

    Would you take the position that a quick and dirty in-person commissioning is somehow better than a situation where the lawyer carefully explains over the phone or video link that it is very important for the affiant to tell the truth, whether for strategic reasons (if you lie you will get caught and it will make you lose), for their conscience, or for fear of punishment from the courts? What is this magic created by everyone’s atoms being in the same physical space?

    Don’t get me wrong, I agree virtual commissioning requires careful consideration and rules to get it right, but that does not mean we shouldn’t do it. Times have changed. The world will continue to move on whether lawyers are ready to or not. Why don’t we help plan out the future instead of getting dragged into it kicking and screaming.

  3. Joel, I would not abolish video testimony. It is supervised by a judge.

  4. Pulat, that is my point. If you accept that evidence can be given over video link because of the quality of the supervision, it is not the physical proximity or mode of communication that matters, but the procedure and supervision of the process.

    Commissioners (especially lawyers acting as officers of the court) can be required and expected to follow whatever procedure would make virtual commissioning a safe and effective process. At the very least, I should be able to take a virtual affidavit for a client whom I know and have worked with directly to create the affidavit.

    Asking a client to miss work or give up their family time for a 10 second signing process is not acceptable to normal people anymore. I’ve had middle-aged and even elderly clients get excited I use an e-signature platform for everything because they still have other lawyers asking to fax them documents. The world is not just changing, it changed 20 years ago. This is one of those disconnects between lawyers and reality that drives clients nuts and leads to questions about whose interests the regulation of the legal profession and the legal system really serves. But I digress.

    Regardless, thanks for your article. Even though I strongly disagree with you, I think we need to be having this discussion somewhat urgently and publicly and your article helps spur discussion and awareness.

  5. @Joel: thank you for your comments. I would love to see a counter analysis by you or another practitioner who this impacts day to day, arguing how the supposed “safeguards” of doing it in person aren’t that effective and how doing it online doesn’t change the risk or the risk is manageable or acceptable. It may seem like a trivial issue to some but I think it is really symptomatic of bigger problems with the profession and how we regulate it.

  6. I find it interesting that the Law Society of Ontario, in its recent E-Bulletin, chose to recommend against remote commissioning (or witnessing), but did not say it was illegal, despite the language of the Commissioners for Taking Affidavits Act that requires the oath to be performed “in the presence of” the commissioner.

    So they seem to believe – based on what? an internal legal opinion? – that it is possible to have “virtual presence”, but that there is too much risk in counting on it.

    The US has moved towards virtual commissioning. Its Revised Uniform Law on Notarial Acts (RULONA) has since 2018 allowed for remote notarization. The section (14A) is four pages long and the comment on it 7 pages long – so it is not simplicity itself.

    (Electronic notarization done in person is some years older in the US. Is that authorization a necessary first step, or a sine qua non, of remote notarization?)

    Basically the notary and the remote deponent have to have synchronous video and audio communications, by a communications technology to be specified by the authority of the state that gives notaries their commissions (or not disapproved by that authority). An audio and visual recording must be made and kept by the notary for at least 10 years.

    The notary has to satisfy him/herself that the document seen by the notary is the same one being deposed to or signed by the deponent. The statute does not say how this is to be done. The statute is technology neutral, though the state regulator of notaries may not be.

    Is that too much rigamarole for us in Canada? More trouble than it’s worth? Some good points have been made in the discussion so far about what a pain it is for clients to have to come see their lawyer, or to pay the lawyer to go see them, for a one-minute signature process. Phones with audio and video capacity are ubiquitous today, so the technology to support remote witnessing or commissioning is readily available.

    Should the law allow this here? If so, should it spell out the method in as much detail as RULONA?

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