ELECTRONIC RECORDS: THE SASKATCHEWAN EVIDENCE AMENDMENT T AC 2000

Transcription

1 ELECTRONIC RECORDS: THE SASKATCHEWAN EVIDENCE AMENDMENT T AC 2000 ( ) These materials were prepared by Neal Caldwell, of McDougall Gauley law firm Saskatoon, (. '. Saskatchewan for the Saskatchewan Legal Education Society Inc. seminar, Civil/Criminal Evidence.\) Update 2001; October "/

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3 TABLE OF CONTENTS I. INTRODUCTION 1 II. BACKGROUND MATTERS 1 A. THE UNIFORM LAW CONFERENCE OF CANADA 1. The Uniform Electronic Commerce Act 2. The Uniform Electronic Commerce Act III. THE SASKATCHEWANEVIDENCE AMENDMENTACT A. EXISTING RULES OF EVIDENCE 4 B. DEFINITIONS 4 I. "Data" - s. 29(1)(a) 4 2. "Electronic Record" - s. 29(1)(b) 5 3. "Electronic Records System" - s. 29(1)(c) 6 C. AUTHENTICATION OF ELECTRONIC RECORDS 6 D. BEST EVIDENCE RULE 7 E. PROVING THE INTEGRITY OF AN ELECTRONIC RECORDS SYSTEM 8 1. Proper Operation Presumption ofintegrity - s. 29.4(a) 9 2. Adverse Interest Presumption ofintegrity - s. 29.4(b) Third Party Business Records Presumption ofintegrity - s. 29.4(c) 10 F. STANDARD FOR ADMISSIBILITY 11 G. AFFIDAVIT EVIDENCE 11 H. CONCLUSION 12 IV. THE PERSONAL INFORMATIONPROTECTIONAND ELECTRONIC DOCUMENTS ACT(CANADA) 13 )

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5 ELECTRONIC RECORDS: THE SASKATCHEWANEVIDENCE AMENDMENTACT, INTRODUCTION The Saskatchewan Evidence Amendment Act, 2000, S.S. 2000, c. 61, came into force on November 1, 2000, to amend The Saskatchewan Evidence Act, R.S.S. 1978, c. S-16 (the "Act"), to clarify the rules regarding the admissibility and reliability of records recorded and stored by electronic means. The amendments, which are modeled on the Uniform Law Conference of Canada's Uniform Electronic Evidence Act (see infra): (a) (b) (c) (d) provide rules for admitting electronic records in legal proceedings; permit electronic records to take the place of original records if an electronic system has reliably stored and reproduced the electronic record; permit the use of industry practices and standards for record-keeping and record storage in determining whether electronic records are admissible in legal proceedings; and permit the use of affidavits to demonstrate the reliability of record keeping systems. II, BACKGROUND MATTERS A, THE UNIFORM LAW CONFERENCE OF CANADA The Uniform Law Conference of Canada was founded in 1918 to harmonize the laws of the provinces and territories ofcanada and, where appropriate, federal laws. The Commercial Law Strategy was adopted by the Conference in 1998 following consultations with representatives of governments, business groups, law reform organisations, academics and others. The aim ofthe Commercial Law Strategy is to modernize, clarify and harmonize commercial law in Canada. The ultimate goal of the Conference in this regard is to create a comprehensive framework of commercial statute law to facilitate the carrying on ofbusiness in Canada.

6 2 1. The Uniform Electronic Commerce Act The Saskatchewan Evidence Amendment Act, 2000 is a companion piece to Saskatchewan's new Electronic Information and Documents Act, 2000, R.S.S. 1978, c. E-7.22 (the "E-Commerce Act"), which is based on the Uniform Law Conference of Canada's Uniform Electronic Commerce Act. The E-Commerce Act is designed to remove barriers to electronic commerce created by laws ofgeneral application developed to suit the creation and enforcement ofwritten contracts. The E-Commerce Act sets up rules to make the law media-neutral (as between paper and electronic communications) and technology-neutral (so as not to favour particular technologies as the bases for electronic communication). The E-Commerce Act: (a) (b) (c) (d) (e) (f) (g) applies generally to law in Saskatchewan, except certain enumerated laws; provides that the words "in writing" or "signature" in legislation do not preclude the use ofelectronic documents; provides for specific rules respecting: (i) the legal effect ofelectronic information; and (ii) consent to use or transmit information by electronic methods; authorizes the use ofelectronic signatures and provides for specific regulations to be made regarding the requirements for electronic signatures in prescribed circumstances; sets out requirements for providing or retaining original or other documents; supports electronic contracts and provides legal rules to govern the formation of electronic contracts; and sets out special requirements for the creation of negotiable electronic documents for the carriage ofgoods. The Conference's Uniform Electronic Commerce Act itself is based on the UNCITRAL Model Law on Electronic Commerce, which was adopted by the United Nations in Part III ofthe E-Commerce Act came into force on June 21, 2000 and the remainder came into force on November 1,2000.

7 3 2. The Uniform Electronic Evidence Act The Unifonn Law Conference ofcanada's Unifonn Electronic Evidence Act seeks to address the problems created by legal rules which assume the existence ofpaper records, signed records and original records. Although most electronic records are, in practice, admitted in litigation, courts have struggled with the application of traditional rules of evidence to electronic records. As a consequence, many records managers and lawyers have notbeen confidentthat modem infonnation systems will produce records suitable for use in court, especially ifthe paper original is destroyed. The Unifonn Law Conference ofcanada's attempt to modernize, clarify and harmonize the law of evidence so that public and private sectors could make the best technical decisions about how to produce and keep records, with a minimum of uncertainty about how their legal rights will be affected, resulted in the Conference adopting the Unifonn Electronic Evidence Act. However, because technology evolves so quickly, any law tied to a particular technology may be out-of-date before enactment. Therefore, the Unifonn Electronic Evidence Act accommodates the use of technology but is neutral as to the technology used. The Conference's primaryconcern in crafting rules for presenting electronic records to a court was ensuring that the rules address record accuracy but in a practical way. The Conference sought to allow people to. choose to use paper or any fonn of technology without prejudice to their legal rights. However, by their nature, electronic records are more susceptible than paper records to undetectable modification, whether intended or unintended. The Unifonn Electronic Evidence Act addresses the "reliability" of an electronic record by focusing on three major obstacles associated with the admissibility of documentary evidence: (1) authentication; (2) best evidence; and (3) hearsay. To satisfy the requirement ofauthentication, "reliability" means that the record is what it purports to be. Under the best evidence rule, "reliability" means that the record is accurate or has integrity. For the purposes ofhearsay, "reliability" relates to the truth ofthe contents ofthe record. The Conference's Unifonn Electronic Evidence Act is the basis for The Saskatchewan Evidence AmendmentAct, 2000.

8 4 III. THE SASKATCHEWANEVIDENCE AMENDMENTACT The Saskatchewan Evidence Amendment Act, 2000 adds six new sections to The Saskatchewan Evidence Act, all dealing with electronic records (ss to 29.6). The new sections are intended to affect existing law on authentication and best evidence. A. EXISTING RULES OF EVIDENCE Subsection 29.1(2) provides that the electronic records amendments do not modify any common law or statutory rule relating to the admissibility of records, except the rules relating to authentication and best evidence. The Saskatchewan Evidence Amendment Act, 2000 does not change the existing hearsay exceptions for the admission ofrecords, such as the business records rule (s. 31) or the bankers' books rule (s. 28). Similarly, although a record may be subject to existing rules regarding privilege, competence, and notice, and rules for documents found in the possession ofan accused person, etc., all ofthese rules remain unalteredby the amendments. Subsection 29.1(3) also specifically provides that a court may consider evidence admitted unqer the amendments in applying any common law or statutory rule relating to the admissibility of records. B. DEFINITIONS Three basic definitions underlie the amendments to The Saskatchewan Evidence Act. 1. "Data" - s. 29(1)(a) 29.1(1) In this section and sections 29.2 to 29.6: (a) 'data' means representations, in any folm, ofinformation or concepts; This very general definition ensures that the electronic record provisions apply to any form of information in an electronic record, whether images, text or sound.

9 5 2. "Electronic Record" - s. 29(1)(b) 29.1(1) In this section and sections 29.2 to 29.6: (b) 'electronic record' means data that: (i) is recorded or stored on any medium in or by a computer or other similar device; and (ii) can be read or perceived by a person or a computer or other similar device; and includes a display, printout or other output of that data, other than a printout mentioned in subsection 29.3(2); This definition serves to fix the scope ofthe amendments. An electronic record is "data" that is recorded on any medium. An electronic record is "electronic" because it is recorded or stored in or by a computer or similar device. The definition is intended to capture, for example, data on magnetic strips or in smart cards. However, the definition does not appear to cover telexes, traditional paper faxes or regular digital telephone conversations, since the information is not recorded. However, an electronic record would include computer-generated faxes and voic since the data in such communications has been recorded in or by a computer or a device similar to a computer. Similarly, records on video or audio tape are not covered by the definition, but if a video or sound is recorded as a computer file (.avi,.mov,.jpeg, etc. for video or.wav,.mp3, etc. for audio), whether recorded on a hard-drive or CD-ROM, the video or audio computer file would fall under the definition ofelectronic record because a computer is involved in recording the subject matter (or data) ofthe record. The clear principle underlying the definition is that before data will be considered an electronic record, a computer or similar device must be involved in its creation or storage. The term "similar device" is not defined, however it would appear to extend to Personal Digital Assistants (PDAs), MP3 Players, and possibly digital Dictaphones, etc. The intent ofthe amendments is to set standards for originality and proof of the reliability of systems, rather than of individual records. Given the definition, paper printouts that are produced directly by a computer system are original "electronic" records and subject to the rules of admissibility for electronic records. Whereas photocopies of the same paper printouts would be considered paper records and subject to the usual rules of evidence for copies. However, paper printouts of records that are used only as

10 6 paper records, and whose electronic record is never again used, will be treated as paper records. Subsection 29.3(2) (see infra) now provides that an electronic record in the fonn of a printout that has been "manifestlyor consistently acted on, relied on or used is the record for the purposes. ofthe best evidence rule." 3. "Electronic Records System" - s.29(1)(c) 29.1(1) In this section and sections 29.2 to 29.6: (c) 'electronic records system' includes a computer system or other similar device by or in which an electronic record is recorded or stored and includes any procedures related to the recording or storing ofan electronic record. Under the electronic records amendments to the Act, the reliability of any electronic recordkeeping system is central to the proof of the integrity of the electronic records kept by the system. The electronic records system that produced an electronic record will often have procedures governing the creation and storage of electronic records, including physical or electronic access controls, security features, verification rules and retention or destruction requirements. The basic principle here is that an electronic record is not part ofthe electronic records system that produced the electronic record. This concept is more clearly seen in section 29.3 which provides that you prove the integrity of an electronic record by proving the integrity of the electronic records system from which it is produced. C. AUTHENTICATION OF ELECTRONIC RECORDS Authentication of electronic record 29.2 A person seeking to enter an electronic record must prove its authenticity by evidence capable ofsupporting a fmding that the electronic record is what the person claims it to be. Section 29.2 is a codification ofthe common law rule ofevidence on authentication. The person attempting to adduce an electronic record into evidence is required to show that the electronic record is what it is claimed to be (e.g., record must be presented to a witness and identified: "This record is an invoice."). Neither the integrity nor the reliability ofthe electronic record is

11 7 open to attack at this stage. evidence" rule for electronic records (s. 29.3). Questions of integrity and reliability are resolved under the "best D. BEST EVIDENCE RULE Application of best evidence rule 29.3(1) Subject to subsection (2), where the best evidence rule applies to an electronic record, the rule is satisfied on proof of the integrity of the electronic records system in or by which the electronic record was recorded or stored. (2) An electronic record in the form ofa printout that has been manifestly or consistently acted on, relied on or used is the record for the purposes ofthe best evidence rule. The existing best evidence rule requires the proponent ofa record to produce the original record or the next-best available record. However, the concept of "original" is not readily applied to electronic records. Further, due to the inherent nature ofelectronic records, it is often impossible to provide direct evidence of the integrity of any electronic record sought to be admitted. Therefore, the electronic record amendments to the Act dispense with the requirement of an "original" record and substitute other means of satisfying the underlying purpose of the best evidence rule. Given that the purpose of the best evidence rule is to verify the integrity of records because alterations are more readily detectable on original documents, the recent amendments to the Act provide a test to verify the integrity of an electronic record. Proof of the integrity of an electronic record now depends directly on evidence of the reliability of the electronic records system that produced the record. In other words, the principle underlying the electronic best evidence rule is that electronic records system reliability is a substitute for electronic record reliability. Section 29.3 ofthe Act does not state that the proponent ofan electronic record does not have to produce an original paper document. However, by displacing the traditional best evidence rule, section 29.3 may have the result ofreducing the use ofpaper originals in certain circumstances. For example, ifa paper document (the "original") is scanned and stored as a.pdf image file (the "electronic record") and the original is saved, the proponent may later choose to adduce the

12 8 original under the traditional best evidence rule or the electronic record under the electronic best evidence rule. Section 29.3 does not require the production ofthe paper original nor does the section require the destruction of the original as a precondition to the admissibility of the electronic record. There are good policy reasons for not requiring the destruction of original paper records as a condition precedent to admissibility of electronic records of the originals. First, the law of evidence should not mandate records retention policies, whether for paper or electronic records. Second, if a person who routinely electronically records and stores records and thereafter destroys the paper originals in the ordinary course is not prejudiced for using reliable electronic records, then a person who keeps the paper originals should not be prejudiced for using reliable electronic records eventhough the paperoriginal remains in existence. However, if an electronic record is created for the very purpose of creating an original paper record ofdata, which data serves its entire intended purpose in paper form (e.g., letters drafted on a word-processor are printed for delivery and the electronic file is never used again), then the paper record is still the best evidence and is recognized as such by the amendments to the Act (s. 29.3(2)). In the example, the reliability ofthe electronic record and electronic records system is not at issue. E. PROVING THE INTEGRITY OF AN ELECTRONIC RECORDS SYSTEM Proving the integrity of an electronic records system 29.4 In the absence ofevidence to the contrary, the integrity of the electronic records system in or by which an electronic record is recorded or stored is proven for the purposes of subsection 29.3(1): (a) by evidence that supports a fmding that at all material times the computer system or other similar device was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic record and there are no reasonable grounds to doubt the integrity ofthe electronic records system; (b) if it is established that the electronic record was recorded or stored by a party to the proceedings who is adverse in interest to the party seeking to introduce it; or (c) if it is established that the electronic record was recorded or stored in the usual and ordinary course of business by a person who is not a party to the proceedings and who did not record or store it under the control ofthe party seeking to introduce the record.

13 9 Section 2904 sets out three alternative ways to prove the integrity of an electronic records system to satisfy the requirements ofthe best evidence rule in subsection 29.3(1). 1. Proper Operation Presumption ofintegrity - s. 29.4(a) To adduce an electronic record as the best evidence, subsection 2904(a) requires the proponent of the electronic record to first adduce evidence that, at all material times, the computer system that produced the electronic record was operating properly (or that any malfunction did not affect integrity of the record) and that there are no reasonable grounds to doubt the integrity of the electronic records system. In other words, two matters need to be proven here: first, that the computer system is reliable; and, second, that the record-keeping system is reliable. The decision as to whether the test has been met for any particular computer or electronic records system lies with the court and would obviously depend on the circumstances. However, Subsection 2904(a) should not mean sophisticated, expensive record-keeping software is required to produce admissible electronic records (although a sophisticated record-keeping system should more readily withstand scrutiny). Off-the-shelf software applications are readily available and reliable and, indeed, "record-keeping" is inherent to the general operation of a computer. The amendments are not intended to make the admission of electronic records more difficult or to open the door for an attack on the integrity of electronic records. Rather, subction 2904(a) merely points out the basic criteria on which integrity of an electronic record should be judged, irrespective ofchanges in technology. Given its broad application, subsection 29.4(a), as a method of proofofreliability, may be used to verify the reliability of a third party's electronic record that was not produced in the ordinary course of business and thus could not benefit from the presumption in Subsection 29o4(c) (see infra). To obtain the benefit ofthe presumption in subsection 2904(a), you merely need to lead satisfactory evidence of the reliability of the electronic records system where the third party electronic record was recorded or preserved. )

14 10 2. Adverse Interest Presumption ofintegrity - s. 29.4(b) Subsection 29o4(b) was drafted to deal with the admission of electronic records obtained from a party of adverse interest in the course of litigation. If so obtained, the electronic record is presumed reliable. However, the introductory paragraph to section 2904 provides that the presumptions in that section stand "in the absence of evidence to the contrary". So, if the electronic record is not in fact reliable, the adverse party from whom the electronic record was obtained may rebut the presumption by adducing evidence that the record is not reliable. The rebuttable presumption is reasonable because the adverse party is in a better position to rebut the presumption than the proponent is to prove reliability since the adverse party has better access to and knowledge ofits own record-keeping system than anyone else. Parties wishing to introduce records from friendly parties must satisfy the presumption in subsection 2904(a) (supra). 3. Third Party Business Records Presumption ofintegrity - s. 29.4(c) Subsection 29o4(c) sets out the bankers' books and business records exceptions for electronic records by creating a presumption of reliability for the electronic records of an arm's-length, non-party to legal proceedings, but only ifthe electronic records were recorded or stored in the usual or ordinary course ofthe non-party who recorded or stored same. Ifthe proponent ofthe electronic record had control over the recording or storage ofthe record, then the proponent should be able to provide sufficient evidence to satisfy the presumption in subsection 2904(a). This "control" qualification prevents persons who contract-out data processing or record management from claiming that their electronic records are the records of someone else. In each case, the court will have to determine whether a person on whose behalf electronic records were kept "controlled" the productionofthe records or had access to evidence for the purposes ofsubsection 2904(a).

15 11 F. STANDARDS FOR ADMISSIBILITY Standards 29.5 For the purposes of detennining under any rule of law whether an electronic record is admissible, evidence may be presented respecting any standard, procedure, usage or practice on how electronic records are to be recorded or stored, having regard to the type of business or endeavour that used, recorded or stored the electronic record and the nature and purpose of the electronic record. As noted, the amendments to the Act require the court to consider the reliability of the recordkeeping system in question. The court may be called upon to assess reliability upon being presented with evidence to support one of the presumptions in section 29.4 or upon being presented with evidence to rebut one of the presumptions in section In either case, section 29.5 guides the court to consider evidence (ifpresented with such evidence) that the record-keeping system in question conforms to industry standards for the type ofelectronic record and the kind ofbusiness or enterprise that recorded or stored the electronic record. For example, records managers in some industries have collectively established procedures or rules governing how the types ofelectronic records in t~at industry are to be managed. While the amendments to the Act do not require compliance with such standards, these kinds of industry standards are relevant to the question of admissibility. Furthermore, section 29.5 would also seem to apply ifa party can show compliance with its own internal standards for record-keeping. There is no requirement that a "standard, procedure, usage or practice" be imposed by external sources. However, it is unlikely that a court would give as much weight to evidence of compliance with internal standards as it would to evidence of compliance with broader industry-based standards. G. AFFIDAVIT EVIDENCE "Affidavit may be used 29.6(1) An affidavit may be used respecting the matters mentioned in subsection 29.3(2) and sections 29.4 and 29.5 given to the best ofthe deponent's knowledge or belief. (2) A deponent of an affidavit mentioned in subsection (1) that has been introduced in evidence may be cross-examined as of right by a party to the proceedings who is adverse in interest to the party who has introduced the affidavit or has caused the affidavit to be introduced.

16 12 (3) Any party to the proceedings may, with leave of the court, cross-examine a person mentioned in clause 29.4(c). This final amendment allows a party to adduce evidence in affidavit form to support the admissibility ofan electronic record as the best evidence under subsection 20.3(2), to satisfy the presumptions in section 29.4, and to establish compliance with standards, procedures, usages and practices under section Section 29.6 is drafted so that the deponent does not need to know personally every aspect ofthe record-keeping system in question, but may inform himselfor herself ofthe relevant information for the purposes of the affidavit. However the deponent is open to cross-examination on his or her affidavit evidence which may expose gaps if the deponent is poorly or inadequately informed. Ifsufficient doubt is raised as to the reliability ofthe deponent's evidence, then the proponent of the electronic record will have to adduce more detailed evidence in support of the record-keeping system which produced the record. Since the amendment does not indicate who should swear the affidavit, the party seeking to introduce the evidence will have to decide who to put forward as the most persuasive witness/deponent. The opportunity to cross-examme a non-party record-keeper under subsection 29.6(c) is necessary since an affidavit submitted in support of the presumption in subsection 29.4(c) may not be sworn by the non-party record-keeper of the electronic record in question. The recordkeeping practices of the non-party would be relevant to admissibility of electronic records in some cases. H. CONCLUSION The amendments to the Act affirm the growing confidence in the use of electronic records (that is, assuming integrity ofthe record canbe sufficientlyproven). The amendments allow people to keep records in the way that suits their business purposes best because the law is now neutral about the medium in which records are kept.

17 13 ') IV. THE PERSONAL INFORMATION PROTECTION AND ELECTRONIC DOCUMENTS ACT(CANADA) While better known for its Part 1 provisions relating to protection of personal infonnation, the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("Bill C-6"), contains Parts 2, 3, 4 and 5, which are directly orindirectly related to electronic matters. Parts 2, 3 and 4 came into force on May 1, Part 2, "Electronic Documents", provides for electronic alternatives where federal law now contemplates the use ofpaper to record or communicate infonnation. Part 2 also pennits federal departments, agencies and other bodies to communicate and deliver government services electronically and introduces a degree ofequivalencybetweenpaper and electronic fonnats. A fundamental concept of Part 2 is the use of "secure electronic signatures" to ensure the integrity and reliability ofelectronic transmissions. Provisions in Part 2 were drafted to assist the courts to recognize secure electronic signatures and how they will be used in relation to electronic documents. Usually, evidence in the fonn of an original document is required to satisfy a court that the tenns and conditions of an agreement have not been altered after the document was signed by the parties. As noted, with electronic documents, the traditional best evidence rule is difficult to satisfy since we are unable to distinguish the original document from an amended document and the document would not be authenticated by hand-written or manual signatures. To address this issue, Bill C-6 requires the use of secure electronic signatures for electronic documents whenever the law requires original documents or statements oftruth. Parts 3, 4 and 5 amend the Canada Evidence Act, R.S.C. 1985, c. C-5, and the Statutory Instruments Act, R.S.C. 1985, c. S-22, to provide, among other things, that legislation published electronically has the same legal authority as legislation published on paper. Part 3 also clarifies how courts may assess the integrityofan electronic document introduced as evidence.

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