This article explains how to prevent the very damaging ignorance and avoidance of the technology that underlies widely used important laws. For example, the probability of wrongful decisions, in both civil and criminal cases, has been raised to what should be considered to be an unacceptably high level by the very false and unanalyzed (blind) assumption that electronic records technology is just a speeded-up and more convenient version of paper records technology. In fact the wordings of the electronic records provisions of the Evidence Acts declare the law to be that they are very different technologies.
As examples of the poor performance of laws due to “technology ignorance and avoidance,” consider the use of the laws that provide the foundation for the use of electronic records:
1. Electronic records as evidence: They are the most frequently used kind of evidence. The electronic records management system technology (ERMS technology) that controls their existence, accessibility, and integrity will need a larger and more complex legal infrastructure of laws, and increased number of varieties of specialized personal such as lawyers, judges, administrators, and enforcers, than do motor vehicles. But in fact it is a technology having almost no regulation. As a result, major errors in records management and software, which frequently cause records to be lost, destroyed, and corrupted, are very common. I know this to be so from my many years working with experts in ERMS technology, servicing large institutional clients.
Nevertheless, the “system integrity” requirement of the electronic records provisions of the Evidence Acts is completely ignored—admissibility of an electronic record requires proof of the integrity of the electronic records system in which it is recorded or stored; e.g., s. 31.2(1)(a) of the Canada Evidence Act, and s. 34.1(5),(5.1) of the Ontario Evidence Act. Such provisions are in 11 of the 14 Evidence Acts in Canada, including Book 7, “Evidence” of the Civil Code of Quebec. See; (1) “Admissibility of Electronic Records Requires Proof of Records Management System Integrity”; (2) “Electronic Records as Evidence”; (3) “The Admissibility of Electronic Business Records,” (2010), 8 Canadian Journal of Law and Technology 105; and, (4) “A Legal Opinion is Necessary for Electronic Records Management Systems.”
But, there is a new, necessary, and potentially very profitable specialist lawyer and practice being developed, although not yet recognized as such; see: (5) “’Records Management Law’—A Necessary Major Field of the Practice of Law—A Summary” (a summary of the full article at, (2015), 13 Canadian Journal of Law and Technology 57); and, (6) “The ‘Records Management Lawyer’ – A Specialist in a Necessary Major Field of the Practice of Law.”
2. The National Standards of Canada for electronic records management: “System integrity” is a very complex ERMS principle and practice. Therefore its proof requires the application of these national standards: Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (“72.34”), and, Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (2000) (“72.11”). Experts in electronic records management apply more than 250 tests to certify the compliance of an ERMS with these standards. But with one exception, the case law on the admissibility of electronic records and electronic discovery ignores them; see: R. v. Oler, 2014 ABPC 130 (CanLII),  A.J. No. 669. It is a dangerous and unacceptable ignorance that allows for the continuation of the very inadequate process currently being used to create a second edition of 72.34; see:“Admissibility of Records Dependent Upon a Poorly Drafted National Standard.”
3. Electronic Discovery Proceedings: In regard to the first edition of the Sedona Canada Principles, see: “The Sedona Canada Principles are Very Inadequate on Records Management and Electronic Discovery.” The new Sedona Canada Principles 2d edition, perpetuates the major shortcoming of the first edition. Both fail to recognize that the efficacy and honesty of electronic discovery proceedings depends upon the state of ERMS integrity. Sedona Canada is based upon the pre-electronic paper records management systems principle that discovery is not be used to judge the quality of evidence. Therefore it does not require an investigation of the quality of management of an ERMS system.
A pre-electronic paper records management system can be represented by a piece of paper in a file drawer, but an electronic record must be represented by a drop of water in a pool of water. A piece of paper is not affected by its file drawer, or by all of the file cabinets in a paper records system. Therefore the state of records management is irrelevant to discovery and admissibility proceedings. But an electronic record has no physical existence except as a group of electrons in an ERMS. Therefore it is completely dependent upon its ERMS for its continued existence, accessibility, and integrity. Therefore to enforce the effectiveness of electronic discovery proceedings, the state of ERMS management must be ascertained. That requires the application of the national standards of electronic records management by which to judge the state of ERMS management. Otherwise, to believe that electronic discovery can be effective in providing adequate and honest production of records by the parties, is an illusion and a pretence.
But footnote 247, on page 78 of Sedona Canada 2d cites the National Standards of Canada, along with other standards, only in relation to, “… determining admissibility of digitized electronic records in lieu of paper originals.” But even for that limited purpose it states that such standards, “are not mandatory.” The integrity of any electronic record requires proof of the “system integrity” of its ERMS during the whole of its history in that ERMS. The Evidence Acts declare that to be the burden of proof for admissibility. Sedona Canada 2d, like its predecessor, shows a lack of understanding of the ERMS technology, i.e., no understanding of the need for standards to ensure the adequacy of electronic discovery, and its connection to proof of “systems integrity,” as is required by the electronic records provisions of the Evidence Acts. And such proof should be required in every jurisdiction, whether or not its Evidence Act has electronic records provisions—ERMS technology doesn’t change its nature to suit an Evidence Act.
4. The “Review” Stage of Electronic Discovery: The greatly increased cost of electronic discovery proceedings, produced by the increased volume of electronic records created by the great automation capacity of electronic records technology, should be dealt with the way legal research methods deal with even greater volumes of legal publications. As a result of the following factors, there is no need for a “proportionality” principle to limit the legal research burden inflicted by an opposing party: (1) legal research materials are highly abstracted, headnoted, and indexed; (2) the searching is done by experts trained in legal research—lawyers and law students; and, (3) the searching is done electronically. As a result, the searching for and reviewing of legal materials are done as one operation, applied to electronically stored indexes and summaries. The present “review stage” problem exists because it cannot be done that way.
But if clients indexed all significant records as they were created or received, the review stage of electronic discovery could be performed much the same way as is legal research. The litigation or records management lawyer specialist could search clients’ ERMS databases electronically for relevant and potentially privileged records. One of the functions of the records management lawyer would be to teach clients indexing (clients know the keywords of their business vernacular), and persuade them that they would get as much useful information for doing business daily as they do from maintaining their financial records in a continuous fashion. As a result, clients’ auditors don’t have to use the very time consuming, blunt force method of reading (or training expensive electronic devices to read) thousands of records before they do an audit. Neither should lawyers.
There is always a price to be paid if a new technology is to be used safely—mass transportation by horses required much less legal infrastructure than do motor vehicles, which has never stopped expanding in volume, complexity, and necessary resources. Only because that price has not been paid has electronic discovery made litigation too expensive for the majority of the population. Pay the price, or don’t use the technology. See: (1) “Solving the High Cost of the ‘Review’ Stage of Electronic Discovery”; (2) “‘Records Management Law’- A Necessary Major Field of the Practice of Law-A Summary”; and, (3) Indexing.
5. Evidence Code technology wasted and still needed: in 1976-77, I conducted an extensive national consultation process with judges and lawyers for the federal Department of Justice as to replacing legislation such as the Canada Evidence Act, and the binding requirement of existing case law, with the Evidence Code that was proposed by the (LRCC’s) Law Reform Commission of Canada’s Report on Evidence (December 1975). It was a proposed Canadian version of one of the most successful codifications of American law, the Federal Rules of Evidence (operative from July 1, 1975), now entitled the, Restyled Federal Rules of Evidence (operative from December 1, 2011).
Codification of the law of evidence was meant to cure the problem that it exists as a, “proliferation of ostensible legal rules, refinements of rules, distinctions in the refinements, refinements and distinctions in the exceptions, and so forth ad infinitum” (Report on Evidence, p. 4). And, “the law of evidence rides on the back of the jury trial,” meaning that only in jury trials must courts stop and decide issues of evidence when they arise—is the jury going to hear the evidence or not?—rather than being able in a non-jury trial to postpone a decision to a stage in the proceedings when a decision is no longer necessary. Jury trials develop the law of evidence; non-jury trials, much less so. But the frequency of jury trials has been diminishing for several years.
Because of the Evidence Code’s great section-by-section similarity, I referred to the case law generated by the Federal Rules as being, “a wealth of free legal technology flowing across the border” as authoritative guidance without being bound to apply any of it. However, because codification was viewed as necessarily replacing the deeply loved and entrenched common law method of developing law by way of judges’ decisions, it never became law. To that end, major support was provided by the (OLRC’s) Ontario Law Reform Commission’s Report on the Law Evidence (June, 1976). It was strongly against codification, stating, (p. xi):
“We remain convinced that the common law approach to evidence is basically sound, and that it would be unwise to reform the law in radically new directions, alien to the tradition of the common law, for example by leaving the admissibility of evidence solely to the judgment of individuals presiding in particular cases.”
This is a gross overstatement as to how a code operates. The Canadian Charter of Rights and Freedoms is a code and it doesn’t operate that way, i.e., judges deciding cases without regard to previous Charter decisions, nor to pre-Charter decisions as non-binding sources of information and guidance. Instead of codification, the OLRC proposed a substantial amending of the rules of evidence. But its Report on the Law of Evidence is no longer available among government publications.
Between the recommendations of those two law reform commission reports, the option of a comprehensive legislative statement of the law of evidence was debated. Whereas prior case law would not be binding on the provisions of a code, the provisions of a legislative statement would be considered to be the product of prior case law, as were the provisions of the Criminal Code when first enacted in 1892.
The LRCC’s Evidence Code was, and still is badly needed, excellent legal technology; see: “A Canada Evidence Code Should Replace the Canada Evidence Act,” which provides more history as to the Evidence Code and thereafter. The Report on Evidence is no longer available as a government publication, and the LRCC was ended in 1993. Before that, two of its four commissioners had moved on to become Justices of the Supreme Court of Canada: Antonio Lamer (from 1980, and Chief Justice of Canada, 1990-2000), and G.V. La Forest (1985-1997). They put their names to the Report on Evidence and its Evidence Code, as did the Chairman, Justice E. Patrick Hartt, of the Ontario Superior Court of Justice. The fourth commissioner was from a discipline other than law.
Fortunately, as the Editor-in-Chief of the CRNSs, I had the Report on Evidence with its Evidence Code, reproduced at, (1976), 34 Criminal Reports New Series 26-116. It could be used for evidence courses today, and if updated with the additions created by the Canadian Charter of Rights and Freedoms, it could be a federal or provincial codification of the laws of evidence today. See: “The Meaning of Codification” (1976), 35 Criminal Reports New Series 178; e.g., the Charter is a code; the Criminal Code is not.
Almost all U.S. states have adopted the Federal Rules of Evidence as their state codes of evidence. It has given the American law of evidence a much greater accessibility and therefore flexibility of application. The effect of a Canada Evidence Code, in terms of frequency of use, would have been comparable to that of the Canadian Charter of Rights and Freedoms upon the practice of criminal law.
Providing technical support for laws based upon technology
The above five poorly used laws and procedures in regard to such an important area of law and practice (as is the use of records as evidence), due to ignorance of the technology upon which such laws must be based, provide support for the proposition that sometimes laws are too important to be left to lawyers—lawyers without technical support. Law school and CPD/CLE courses must provide a cure—courses that cut across the traditional divisions among areas of law, to teach the many ways in which laws are dependent upon technology for their effective use. Otherwise, the law is limited to what lawyers and judges know, instead of being compatible with what the underlying technology requires.
For example, because model codes of evidence had been used as the foundation for decades of American law school evidence courses, and judges’ and lawyers’ comparative analyses, the “codification versus common law” issue played only a very small part in the debates preceding the enacting of the U.S. Federal Rules of Evidence. But in Canada, it dominated the whole two-year consultation process. In Quebec of course, codification was well received, as it was at a meeting of senior Maritime judges and lawyers in Halifax on April 1, 1977. (April 3rd, I was back into winter, in Yellowknife, NWT, and then on to Whitehorse, Yukon.) But generally, the further west I went, the less well received it was and the love of the common law more intensely expressed.
However, there is a way of preventing such damaging consequences of the avoidance and ignorance of a necessary knowledge of how technology should impact the use of technology-dependent laws.
I have previously advocated that Canada’s law societies are badly in need of a civil service-type national institution to advise them; see: “A2J: Preventing the Abolition of Law Societies by Curing the Defects in their Management Structure: A Solution to the Unaffordable Legal Services Problem.” Without such an institution providing permanently developing expertise and advice, they have no capacity to solve complex problems like the unaffordable legal services problem. Such a service would advise Canada’s law societies that such an “access to justice” problem is not a legal problem. It requires an expertise that lawyers do not have. Nevertheless, every current “Access to Justice” committee is composed entirely of lawyers, and some have judges as chair persons and strong supporters. Therefore benchers operating within their 19th century law society management structures cannot cope with such problems. And in this century there will be many more such complex problems because: (1) technology will become a comprehensive basis of our lives and laws; and, (2) the need and demands for laws and the rule of law to control and improve ever-more areas of human activity and dependence; e.g., compare laws now and 30 years ago as to: rights, freedoms and the rule of law; the environment; privacy; electronic commerce; etc.
The required solution is not the law societies’ present promotion of alternative legal services which are for the most part, administrative agencies based upon a strategy of “cutting costs by cutting competence,” i.e., the necessary competence of a lawyer. And, do we want the administration of justice to become almost entirely administrated by administrative agencies, with the necessary judicial correcting and accountability function playing but a minor part? See: “A2J: ‘Let Them Eat Cake,’ So, Let Them Use Alternative Legal Services.”
Added to their great management weaknesses, the continued existence of law societies with their present powers and purpose is threatened by the great communications power provided by the social media, news media, documentary and investigative facilities and agencies, plus the sophisticated pressure groups. Inevitably they will make the problem a very publically examined and threatening problem. While that majority of the population that cannot afford legal advice services continues to be an ever-increasing majority, along with an ever-increasing percentage of self-represented litigants, the probability of demands that law societies be replaced, will grow with them. Governments will be compelled to act.
Such an advisory institute would be paid for by enabling CanLII, the provider of court decisions and statutory materials, to provide at cost, legal opinions for every lawyer and judge in Canada. A separate judges’ division, feeding off the same databases, and specialization of every factor of production, and economies-of-scale, is quite possible. And it is necessary because “clerking” by law students and lawyers who are not career-oriented legal research lawyers should be considered to be an obsolete method of doing legal research, because it is the foundation of all legal advice services.
I know from my experience in creating the necessary technology used by LAO LAW, which is Legal Aid Ontario’s (LAO’s) centralized legal research unit, that such a service would be well used, and make a lot of money because it helps lawyers make money. It would have no competitors and exclusive possession of the necessary know-how. It would have a degree of specialization and scaled-up volume of production providing the necessary economies-of-scale that are far beyond what any law firm is capable of. LAO LAW is the best legal research unit in Canada because in 1979 LAO was put under the necessary government pressure to reduce the money being paid out on lawyers’ accounts for legal research hours claimed. Law societies have never experienced such pressure, therefore no such innovation has occurred. As a result, LAO LAW was created in the legal profession’s most poorly resourced institution rather than in its best. But, by its ninth year of development (1988), it was producing 5,000 legal opinions per year for the benefit of the clients of legal aid lawyers in private practice. But, LAO has since suffered a number cuts in its funding. Nevertheless LAO LAW remains a true support service, using the same technology of centralized legal research that provides a method of production that should be applied to many other types of lawyer’s work besides legal research. See: Access to Justice—Unaffordable Legal Services’ Concepts and Solutions.
In contrast, the legal profession continues to use a handcraftsman’s method whereby each law firm depends only on its own internal resources. The legal profession’s method of production is that of a sophisticated cottage industry. And it is managed by benchers who are but part-time amateurs, lacking the expertise to solve any present or future complex access to justice problem. That method, no matter how much it is embellished, makes the unaffordable services problem inevitable, and ever-lasting and growing. Similarly, no matter how much a bicycle is improved, it cannot be made to provide the speed, capacity, and cost-efficiency of a motor vehicle.
By means of CanLII’s sponsor, the Federation of Law Societies of Canada, CanLII could provide that legal opinion and memoranda of law service, and provide it to a vastly larger market than would have been available to LAO LAW (had the law society, as its then manager, allowed LAO LAW to earn that money for LAO). Then when governments are forced to publically hold law societies to account for a lack of progress in solving the unaffordable legal services problem, they will have a very good answer—a solution is in progress. See: “Access to Justice – Canada’s Unaffordable Legal Services Problem – CanLII as the Necessary Support Service. Financing such a national institution for the legal profession could also be aided by the many institutions and university policy development organizations that study the justice system.
Such an institute, like a civil service, would have the necessary continuously developing expertise with which to advise all lawyers and law societies as to the technology underlying laws, or that must be made available to laws to facilitate their success. Many more laws will be based upon technology, and they will have to be as complex as the technology they regulate. And such technology-based laws will need knowledgeable lawyers. But no longer can law societies expect that lawyers will know that technology and how to interpret, apply, and argue the laws based upon it. That is shown by the above examples.
The bridge between access to justice problems and the efficacy of technology-based law problems is ignorance of: (1) the necessary impact of technology upon laws; and, (2) the impact of ever-changing economic and social circumstances upon the practice of law. That bridge should be supported by a permanent national institute that has the ever-developing expertise and advisory function that a civil service provides to an elected government, plus a counterpart to the model draft legislation function provided by the Uniform Law Conference of Canada (which is why many laws on the same subject, are very similar, one jurisdiction to the next, as might be law society rules of professional conduct for example). Such a national law society-created institute would draw its financial support from CanLII, and root its support from the legal profession in law school and CPD/CLE courses concerning the impact of technology upon laws and lawyering.
But to implement these ideas would require strong and innovative law society leadership. In sharp contrast, the stand pat, “populist” style has prevailed for many decades. And given the lack of change in law society management structure and performance, most probably it has prevailed since Canada’s first law society was created during the British colonial period, on July 17, 1797, in Niagara-on-the-Lake (present pop., 17,000), in the province of Ontario (formerly, Upper Canada); see: Christopher Moore’s The Law Society of Upper Canada and Ontario’s Lawyers 1797-1997 (University of Toronto Press, 1997).