Electronic Records as Evidence: THE CASE FOR CANADA'S NEW STANDARD

Article excerpt

When Canada's Electronic Records as Documentary Evidence standard is released later this year, it will represent one big step for electronic records everywhere

In Canada there have been initiatives on providing guidance and national standards for managing electronic records so that they meet evidentiary requirements in courts of law, but to date nothing has been formalized. This situation, however, is soon to be remedied with the passage of the Electronic Records as Documentary Evidence standard (C**CGSB-72.34) later this year.

When the standard is released, it will establish requirements for organizations to follow when creating digital electronic records in any form - text, databases, image, and audio - in order to demonstrate the records' authenticity. By following the standard's requirements, organizations will be able to demonstrate the integrity of the system that recorded or stored the electronic record. The authenticity of the electronic record itself is demonstrated by extension.

The standard is much needed and eagerly anticipated; only one other draft standard (regarding genetically modified foods) has spurred greater public feedback to the Canadian General Standards Board (CGSB).

For all its fanfare, however, the standard will not guarantee that an electronic record will be accepted as evidence in court; both these decisions rest solely with the court.

It Began with PIPEDA...

A recognized need for a "made-in-Canada" solution was not perceived to be in great demand until the Personal Information Protection and Electronic Documents Act (PIPEDA) was enacted in 2000, with subsequent legislation at the provincial level. PIPEDA's goal is to support and promote electronic commerce by protecting personal information that is collected, used, or disclosed in certain circumstances. PIPEDA provides for the use of electronic means to communicate or record information or transactions and amends the Canada Evidence Act, the Statutory Instruments Act, and the Statute Revision Act.

The need for such a standard arose when federal, and later, provincial Evidence Acts were amended to include electronic document standards as a means of demonstrating the authenticity, integrity, and reliability of an electronic record for admissibility purposes. For example, section 31.5 of the Canadian Evidence Act, as amended, states that

"for the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise, or endeavor that used, recorded, or stored the electronic document and the nature and purpose of the electronic document."

PIPEDA resulted from the recognition that electronic records are routinely admitted in all Canadian courts; therefore, the courts must have a means of establishing the reliability of the evidence if it is electronic. Thus, there is a need to establish a consistent approach to validating the reliability of the electronic records.

The legislation provided direction on how to demonstrate the integrity of the electronic record for evidentiary purposes, something that is accomplished by proving the integrity of the electronic records system in which the data was recorded and/or stored. Prior to PIPEDA, the authenticity of the paper record that was stored in a filing cabinet had to be demonstrated. Now, if the integrity of the filing cabinet can be demonstrated, then anything stored or recorded in the filing cabinet inherits the integrity of the filing cabinet. This, in turn, could be demonstrated by following a standard that identifies how electronic records are to be recorded or stored and the nature and purpose of the electronic record.

A 1993 standard - Microfilm and Electronic Images as Documentary Evidence (CAN/CGSB-72. …