A New Way to Oppose the Admissibility of Records

Soon, the very procedures used to produce a National Standard of Canada (an NSC) upon which the electronic records provisions of the Evidence Acts depend, will create another way of opposing the admissibility of records. That will undermine litigation based upon records, particularly criminal prosecutions. So you’d think the federal Department of Justice would be rushing to protect the Crown’s case. Well read on, then think again.

In regard to best evidence rule issues, admissibility of electronic records requires proof of the “systems integrity” of the electronic records management systems (ERMSs) in which the records are recorded or stored; see for example: Canada Evidence Act (CEA) s. 31.2(1)(a); Ontario Evidence Act (OEA) s. 34.1(5),(5.1); Alberta Evidence Act s. 41.4(1),(2); and the, Nova Scotia Evidence Act s. 23D(1). Such proof of “systems integrity” provisions are in 11 of the 14 Evidence Acts in Canada, including Book 7 of the Civil Code of Quebec, see: articles 2820, 2838-2842, and 2860, and, An Act to Establish a Legal Framework for Information Technology, ss. 2, 5-8, & 68.

And because such “systems integrity” is a very complex collection of ERMS principles and practices, which collection is too big to put into a definition section in such Evidence Acts, compliance with the following NSC is the necessary test as to the existence of that required “systems integrity”: Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (72.34). Therefore, the above electronic records provisions refer to the use of standards for, “determining under any rule of law whether an electronic record is admissible,” e.g., s. 31.5 CEA, and s. 34.1(8) OEA.

Such proof of “systems integrity” is necessary because of the many seriously defective and very common records management practices that are described in the articles listed at the end of this post. Having worked for many years with records management experts who service clients’ ERMSs (I write the legal opinions that accompany their reports), and having been the legal advisor in the drafting of the NSCs concerning ERMS technology, I know that these defects are very common. The majority of those defects have no counterpart in pre-electronic paper record systems, and the ERMS versions of those that do, are potentially much more damaging.

But proof of adequate production on discovery requires in fact (but not in law) proof of continuous compliance with 72.34. Its “prime directive” states: “an organization shall always be prepared to produce its records as evidence,” (clause 5.4.3(c), p. 17). Otherwise, there can be no presumption that relevant records have not been, lost, destroyed, corrupted, or become inaccessible, and may no longer be available in their original form, and they may have several duplicates containing various alterations. Therefore bringing an ERMS into compliance only when litigation threatens cannot provide proof that adequate production has been made.

Such proof of compliance with 72.34 very likely cannot be made in criminal proceedings. Police and other investigators are not trained in obtaining information as to the state of compliance with 72.34, which is particularly important when it is large and complex ERMSs from which they obtain records to be used as evidence. Therefore they cannot say whether their third party sources have given them all relevant records, records in their original form, or altered copies, and whether relevant records have been lost, destroyed or corrupted. Bad ERMS management will mean that the third party sources won’t know either. Therefore even if production to the accused includes “the complete fruits of the investigation,” (as required by: R. v. Stinchcombe 1991 CanLII 45 (SCC); and, R. v. McNeil, 2009 SCC 3 (Can LII)), without such “state of compliance information,” it will be inadequate disclosure.

ERMSs are no longer isolated, physical facilities that require physical access to them in order to obtain their records. And electronic records have no physical existence of their own—you can’t point to a hard-drive and say, “see those electrons; that’s my record,” as though it were a paper record. An ERMS may be spread over many locations, and kept in utility-like services such as “the cloud” storage systems because they provide extra but expensive software programs, and personnel devoted to security risks who are too expensive for a law firm to hire. And records may be kept, as might be needed at various times, in employees’ mobile electronic devices, who themselves may be using a “cloud service” to facilitate exchanges of records with colleagues. As well, ERMSs are very vulnerable to “hacking” and other security breaches from anywhere. Without proof of compliance with 72.34, there can be no assurance that any record still exists or is in its original form.

Therefore electronic records management is now better defined as “records control,” and not simply as “systems management.” Large or complex ERMSs should be certified once per year as being in compliance with 72.34, and whenever significant changes are made; see: “A Legal Opinion is Necessary for Electronic Records Management Systems.” But all records managers of large and complex ERMSs should know what the 72.34 national standard requires. Such standards are drafted by ERMS experts who service clients. They do not counsel perfection, but rather safe, accurate, and dependable operation of ERMSs within the contexts in which such institutions operate.

In addition, because the market favors what’s new, rather than eliminating defects in what has already been marketed, the software that operates ERMSs’ records management programs has poor quality-control in its manufacture. A 2002 study commissioned by the U.S. Department of Commerce’s National Institute of Standards and Technology (NIST) concluded that, “software errors cost the U.S. economy $59.5 billion annually.” A major factor contributing to the frequency of software errors are the many millions of lines of software code needed to operate records management programs and devices. They have high error rates. Most of the “updates” we receive are corrections of software errors.

Such common defects of records management and software should cause the phrase, “the usual and ordinary course of business,” (as used in subsections. 30(1),(2) and s. 31.3(c) of the Canada Evidence Act), to be held to be obsolete, particularly so the “presumption of regularity” it grants to any description of what is “usual and ordinary” to a business. It needs an objective rather than its present subjective definition used in the caselaw, as in R. v. Oland (below).

But 72.34 is soon to be replaced by an improperly created and inferior second edition. The Canadian General Standards Board (CGSB), being the standards development organization (SDO) that sponsored 72:34, expects the Standards Council of Canada to declare its draft second edition of 72.34, to be an NSC sometime this coming summer. However, the improper procedures CGSB has been imposing upon the committee’s working group (which composes the successive drafts of 72.34(2d) that are reviewed by the full committee), should be more than sufficient to render void any attempt to create any draft an NSC.

In exchange for funding, CGSB entered into an agreement with the federal government’s Treasury Board of Canada Secretariat (TBS) to produce a draft second edition of 72.34 within an unreasonably short time. As a result, the procedures used by CGSB were contrary to the Standards Council’s governing regulatory texts, CAN-P-1:2012, and CAN-P-1020:2013 (operative until October 1, 2015). That caused me and another lawyer who specializes in this area of law, to resign in June 2015, from the committee and its working group, and also, me as the chair of the committee.

The Standards Council of Canada Act, and the Council’s regulatory texts establish a process of “voluntary standardization,” which must be: (a) independent of government; (b) serve the public interest; and, (c) achieve a consensus of all parties concerned, which makes necessary a large committee. All three have been violated. The project has been operated as though preparing a piece of government property to serve government interests, and done so by means of interference with obtaining a true consensus, because it would take longer than the agreement allows. In addition to funding, TBS has provided a TBS employee, who has exercised substantial control over the progress of the project.

The members of the committee, including its working group, are unpaid, i.e., they participate “voluntarily.” But it is they who have the necessary expertise to draft the standard—they being ERMS and legal experts for this 72.34(2d) project. Because they are unpaid, their available time is limited, uncertain, and therefore difficult to schedule. That fact is very incompatible with CGSB’s agreement with TBS, if the needs of the voluntary nature of the process of standardization are abided and served. That makes necessary the determination of all procedures be left to the committee itself. It has the necessary expertise, and can decide how best to apply it, and deal with the limited availability of its members. The time to complete the project has had to be extended as has the pressure to complete it.

In comparison, to create the first edition of 72.34 took its committee more than three years (2000-2003). To deal with our limited availability, we worked by a rule—our rule—that half the members of the committee had to be present at meetings. Instead of a working group, the drafts were the product of debates among the committee members. 72.34 was declared an NSC in December 2005, and has not caused any problems nor raised objections.

But in the current 72.34(2d) project, CGSB personnel, along with the TBS employee, have been controlling all procedures, including scheduling and deadlines, with the result of unduly restricting the time needed for each step. In particular, controlling its working group, which creates each draft, has been much easier and effective for CGSB’s purposes, than controlling the whole committee. The committee is used merely for reviewing the various drafts. As a result, its involvement is intermittent, most likely causing many of its members to become inactive, thus preventing the required consensus to be achieved.

Up to the time of our resignations, there have been several very improper procedures used, including allowing people without legal training to edit our work on the legal section of the draft standard without allowing us to review the results of such editing before the draft went to the full committee for review. As a result, the draft contains errors of law, of which I gave warning. And after our resignations, the draft put out for its required 60-day public review still contained errors of law. Such public review was therefore a misrepresentation that the draft: (1) was the product of proper procedures; and, (2) contained no known errors. In my opinion, all subsequent steps toward creating a national cannot be valid.

Therefore, if 72.34(2d) becomes an NSC, the many ERMS experts who will certify compliance with it for their hundreds of clients and employers over the next 10 or more years that it will exist (as has 72.34), will be vulnerable to being sued or dismissed, e.g., if it is attacked as not being adequate to ensure proper control of records as for example, the basis of commercial transactions, and for legal proceedings. And so, instead of complaining to CGSB itself about its improper procedures, on October 21, 2015, I sent my complaint directly to the Standards Council of Canada.

Unfortunately, the Council allowed CGSB to investigate my complaint, and thereby be “the judge of its own case.” Therefore, I sent a detailed objection to that effect to the Council on November 13, 2015, which had no effect. As a result, my 100-page complaints text was dismissed by CGSB in less than two pages, by way of a report dated December 23, 2015. Any appeal must be decided by CGSB itself, by its director, which appeal I launched on January 22, 2016. Such is necessary in order to exercise the further right of appeal to the Standards Council. Regardless, CGSB is charging ahead. And consistent with that fact, as its large catalogue of national standards for sale shows, it has had a large amount of experience with the Standards Council. But CGSB’s catalogue website for purchasing its standards is made up of standards for construction materials and equipment.

Therefore, on October 21, 2015, I sent a copy of my complaint to the federal Department of Justice, followed up on November 13th, with a copy of my objection concerning CGSB’s self-investigation. Justice will have to defend federal legislation that is heavily dependent upon the use of records, such as the Canada Evidence Act, and its electronic commerce legislation (in PIPEDA Part 2, “Electronic Documents,” ss. 31-51). And for Canada’s 13 other jurisdictions, because they have very similar legislation, and are responsible for prosecutions under the Criminal Code, provincial and territorial Attorneys General should similarly be notified. However, except for acknowledging receipt of my texts, the federal Department of Justice has not responded.

See also: “Admissibility of Records Dependent Upon a Poorly Drafted National Standard,” (SLAW, October 23, 2015).

The caselaw shows that lawyers and judges have a very inadequate knowledge of the nature of ERMS technology. See for example, R. v. Oland, [2015] N.B.J. No. 313 (September 2, 2015; CanLII citation not yet available), a decision of the trial division of the New Brunswick Court of Queen’s Bench concerning the admissibility of cellphone records in a case that has resulted in a conviction for second degree murder. The records were of critical importance to the conviction. But, it contains no reference, as it should have, to 72.34. Therefore, if Oland had been convicted using the new 72.34(2d) as a national standard, that would be good grounds for appealing the conviction. That requires the federal Department of Justice’s attention now.

Ironically, satisfying the phrases, (1) “the usual and ordinary course of business,” and, (2) “the electronic document system was operating properly,” as used in ss. 30(1) and 31.3(a),(c) CEA, were principal reasons for declaring those critically important cellphone records to be admissible in Oland. But, CGSB’s own performance showed that those phrases cannot fulfill their intended purpose as to guaranteeing the reliability of its records and records management in relation to its part in the creation of a national standard that should be used to dictate the principles and practices as to what should be an organization’s “usual and ordinary course of business,” as to its ERMSs “operating properly,” in relation to its records management and control. That requires the Department of Justice to inspect the procedures for creating such national standards, and the efficacy of such phrases in the records provisions of the Canada Evidence Act.

Comparable provincial and territorial legislation requires comparable attention.

Even more dangerous to the rule of law: more such national standards will be required to serve the legislation that will be made necessary by our increasing dependence upon electronic records and information management technology. Development of those national standards will fall within CGSB’s jurisdiction. That requires the Department of Justice’s immediate attention.

As to the dependence of the use of records as evidence upon the 72.34 national standard, see:

(1) Admissibility of Electronic Records Requires Proof of Records Management System Integrity” (posted on my SSRN author’s page, December, 2015);

(2) “Electronic Records as Evidence” (SSRN, May, 2014);

(3) “A Legal Opinion is Necessary for Electronic Records Management Systems” (SSRN, Oct., 2014);

(4) “Records Management Law – A Necessary Major Field of the Practice of Law” (SSRN, Jan., 2016);

(5) “Electronic Records for Evidence and Disclosure and Discovery” (2011), 57 Criminal Law Quarterly 284-326;

(6) “Electronic Discovery in the Criminal Court System,” (2010), 14 Canadian Criminal Law Review 111-180;

(7) “The Admissibility of Electronic Business Records,” (2010), 8 Canadian Journal of Law and Technology 105-193, and,

(8) for the defects of the phrase, “the usual and ordinary course of business,” as used in the business record, and electronic record provisions (e.g., ss. 30(1) & 31.3(c) of the Canada Evidence Act); see:

“Electronic Records As Documentary Evidence” (2007), 6 Canadian Journal of Law and Technology 141, at 150-151.

And there are a number of short “electronic records management systems” articles (ERMSs articles) listed on my Slaw author’s page.

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