Electronic Evidence Act Consultation Paper 1997

Minimum Standards

[66] The proposals above may be criticized as leaving too much uncertainty to creators or managers of electronic records. When will one's affidavit in support of admission be acceptable, and when will it need to be supplemented? How should one supplement it? Are there no standards that can be fixed ahead of time as "safe", so that complying with them guarantees admissibility of one's records? Lesser or other standards may be acceptable as well, but should there not be some guarantee available?

[67] Two candidates present themselves as minimum standards: the National Standard of the Canadian General Standards Board, already briefly mentioned above; and standards for creating records with digital signatures. Each is discussed in turn.

1. National Standard

[68] We have been urged, particularly by the Canadian Information and Image Management Society, to support by legislation the National Standard on Microfilm and Electronic Images as Documentary Evidence (CAN/CGSB-72.11-93). In particular we have been asked to provide that records created and kept in compliance with the National Standard are admissible and (presumed?) reliable.

[69] After serious reflection, we have decided not to recommend such support, even through a statutory presumption of reliability. We have three reasons. First, the presumptive standard would in practice become a minimum, since it would be a standard of inadequacy of other, lesser procedures to ensure reliability. Second, compliance with such a presumptive standard may lead to a tendency to not properly scrutinize the records further as to weight. Third, the National Standard is in our view beyond the means of many legitimate users of electronic images.

[70] Other procedures may be developed that support reliability adequately for litigation. One thinks of the requirements of the New Brunswick statute. Its policy aims at a standard below that of the National Standard but acceptable to the N.B. Legislature.

[71] Leaving the National Standard out of the legislation in no way reflects on its validity or its usefulness. It may well become a de facto standard in the courts. The Society has told us that Revenue Canada now allows taxpayers that keep electronic records according to the standard to dispose of their original records. That is powerful testimony of the strength of the standard in guaranteeing integrity of records made and maintained in accordance with it.

[72] We simply think that the National Standard should be left to make its own way. The general absence of other statutory criteria for weight of evidence reinforces us in this belief.

2. Digital Signatures

[73] Record-makers may use digital signature technology for various purposes: to ensure data integrity of records and messages, to ensure that senders of messages created or received by the computer system cannot repudiate the fact that they sent such messages, and, in conjunction with encryption technology, to maintain confidentiality of information during transmission. It has been suggested that digital signature technologies serve to ensure the integrity of data and that their use may be relevant as foundation evidence or in the event that the integrity or weight of the electronic record is challenged. As these technologies are continuing to evolve and their application is not yet widespread, it may be premature to consider reference to digital signature technology as a minimum standard for the purpose of creating a statutory presumption. This consultation paper does not examine the value or necessity of a specific rule or a statutory presumption of reliability for digital signature technology as applied to electronic records. At this time, a number of governments are separately examining the value of this technology.

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