The Inadequacy of Analysis of Electronic Records Management for Evidence and Discovery
2011/3/23 10:46:23 点击率[3800] 评论[0]
【法宝引证码】
    【学科类别】其他
    【出处】本网首发
    【写作时间】2011年
    【全文】

      1.   Analysis of records management is Necessary—Electronic Discovery and Admissibility are interdisciplinary
     
      To use electronically-produced records as evidence, differences in the law among countries isn’t relevant. What is important is knowledge of the nature of electronic records management and electronic records. They are very different than paper records management and paper records. As in China, Canadian court cases, textbooks, and digests of the law are inadequate in their treatment of the use of records as evidence because they do not analyze these facts and concepts:
     
        1.   The reliability and “integrity” of an electronic record is completely dependent upon that of the electronic records system in which it is recorded or stored. This is the “norm” and foundation principle for records for electronic discoveryand as evidence.
     
        2.   Therefore issues as to the admissibility (acceptance) of evidenceand procedures of electronic discovery should involve evidence and proof of the state and quality of electronic records management.
     
        3.   The electronic records provisions of the Evidence Acts in Canada create a “system integrity test” of admissibility, i.e., they require proof of “integrity of the electronic record system in which the record is recorded or stored.”Therefore, in order for electronic records to be used as evidence, there must be evidence of the state of records management. Whatever a country’s laws state, this is a fact of electronic records management that must be dealt with by the courts.
     
        4.   The international standards of the Organization for Standardization (ISO) (and in Canada, the National Standards of Canada) for electronic records management are the only authoritative source with which to define the meaning of “system integrity.” But these standards are not being analyzed nor emphasized to show their importance to the legal issues concerning admissibility and electronic discovery.The existence of these standards is merely mentioned. But not dealt with are these important facts: (1) the authoritative nature of their creation and accreditation by the Standards Council of Canada, and their recognition by the International Organization for Standardization (ISO); (2) they are the only source with which to interpret and apply the electronic record provisions of the Evidence Acts; and, (3) an inability to comply with them will very likely mean: (a) inadequate electronic discovery; (b) the unavailability of records as evidence; and, (c) the refusal of the courts to accept them as evidence (i.e., they will be inadmissible evidence). These standards state, “an organization shall always be prepared to produce its records as evidence.”That requires that records systems always be kept in compliance with the laws that depend upon them for records, and with the National Standards of Canada. But there is no verification during proceedings concerning admissibility and electronic discovery that this principle, and the others in the national standards that follow from it, are being complied with.
     
        5.   The result is that records systems now exist in an environment of “legal compliance”—they must comply with the many laws that make demands of them and are dependent upon them in order for those laws to operate properly, and in compliance with the recognized standards of records management. No longer is it sufficient for a records system to be operated according to “good business practice.” That is the concept underlying the “usual and ordinary course of business” test of admissibility contained in the business record provisions of the Evidence Acts.That distinction and transition in records management concepts, procedures, and standards is not dealt with in Canadian legal literature on the admissibility and electronic discovery of records.
     
        6.   The “triangle of interdependence” is not dealt with. That is the interdependent nature of the issues and rules as to, admissibility, electronic discovery, and records management. And, like any triangle, the weakness of any side or angle determines the strength of the triangle as a whole. The rules of evidence affect the scope of discovery, which in turn affects what is available to be used as evidence. And both are dependent upon the quality of records management.
     
        7.   The Sedona Canada Principles—Addressing Electronic Discovery,which provide authoritative guidelines for conducting electronic discovery, contain nothing about records management systems, their quality and management, and the dependent nature of admissibility and electronic discovery upon them. Nevertheless, it is a treatise that is part of the law that governs electronic discovery.
     
        If our legal literature is inadequate, then most likely lawyers and judges are performing inadequately in regard to: (1) issues as to the admissibility and “weight” (credibility; probative value)of electronic records; and, (2) their electronic discovery? And most likely lawyers are not advising their clients:
     
          (1) to have their records systems prepared to produce records as evidence at all times;
     
          (2) to require their records managers be prepared at all times to give evidence as to the state of their records systems; and,
     
          (3) of the importance to issues of discovery and admissibility of evidence of compliance with the National Standards of Canada as to electronic records management.
     
      In section 9 below, is a list of commonly found defects in the records management systems of very substantial and reliable organizations. Those defects can render uncertain the comprehensiveness, accuracy, and precision of electronic discovery—most of those defects can do so alone, as well as in combinations. And therefore they: (1) reduce the cost-efficiency of performing electronic discovery; (2) diminish the completeness and quality of the evidence that is records; and in turn, (3) they affect the efficacy of the law and of the rule of law. The “triangle of interdependence” makes discovery and evidence no more reliable and efficient than its weakest side or angle of the triangle—evidence, discovery, and the quality of records management are very interdependent. Its importance to the reliability of records as evidence is being ignored as though “an inconvenient truth.”
     
      This situation exemplifies the serious criticism stated by the Law Reform Commission of Canada 35 years ago in its Report On Evidence:
     
          The law of evidence functions because it is often ignored. Surely this is not good enough. For it means that the law is unevenly applied, a problem that is all the more serious where opposing parties are not equally matched.
     
      The law of evidence is being ignored in that there isn’t a thoroughgoing application of its rules, but rather, a convenient interpretation and application.
     
      Since 1977, I have had a unique experience in working with experts in records management. As a result, the interdependence between the use of records as evidence and for electronic discovery and their records management, is now the foundation of my practice of law.
     
      2.   Electronic Records are the Single Most Comprehensive Body of Evidence of Legal Rights, Freedoms, and Obligations
     
      All electronic communications and submissions produce records. Therefore records are potentially relevant to a wide range and volume of legal proceedings, procedures, and negotiations. Adequate and timely proof of the contents of those communications requires good records management in compliance with established national and international standards of electronic records management. It follows that all legislation dependent upon proof of electronic communications requires good records management, e.g., legislation concerning, evidence, electronic commerce, electronic discovery, privacy and personal information, securities, taxation, property laws, and all of the services that affect our quality of life. Laws were also dependent upon paper and microfilm records in the pre-electronic past, but now electronic records are transmitted, stored, processed, transformed, secured, and made vulnerable in many new ways and done so everywhere and made available to all places. Therefore electronic records and good records management are the single most comprehensive body of evidence of our legal rights, freedoms, and obligations. Therefore after-the-fact investigations of all types, and the resulting disclosure and discovery, should require proof of the state and quality of records management applied to the records generated by those communications. Otherwise, there can be no assurance that those investigations and the disclosure and discovery they generate are sufficiently accurate, precise, comprehensive, fair, timely, and able to be conducted at reasonable cost.
     
      3.   Electronic Records Management is Fundamentally Different from “Paper” Records Management
     
      Electronic records, and electronic records management are fundamentally different from traditional, pre-electronic “paper” records and paper records management. The former is not merely a faster version of the latter. The difference is one of kind, not merely one of degree. For example, bicycles, motor vehicles, and airplanes are all methods of transportation, but the impact of each upon our lives and laws is very different. Each is a different thing and not merely a variation of the same thing. This progression in transportation has required more than just better traffic laws. Similarly, because of the differences between electronic and paper records, and the resulting differences between electronic and paper records management, the electronic record provisions of the Evidence Acts in Canada require proof of the “system integrity” of the electronic records system in which any electronic record, adduced as evidence, is recorded or stored.Proof of the integrity of a record requires proof of the integrity of its records system.In contrast, the older “business record” provisions of the Evidence Acts contain no reference to record systems.They require proof of the history of the adduced record, i.e., proof that the record was made “in the usual and ordinary course of business” (or a similar “business activity” wording).Similar changes will have to be made to the laws in other countries concerning the use of electronic records as evidence.
     
      4.   “Systems” Concepts versus “Records” Concepts in the Electronic Records and Business Record Provisions in the Evidence Acts
     
      The “system integrity” test is an objective test, based upon established, authoritative standards such as the National Standards of Canada for electronic records management.In turn, these standards are based upon the international standards of the International Organization for Standardization (“ISO”) in Geneva, Switzerland.Canada’s national standards have been approved and certified by the Standards Council of Canada as national standards. Therefore they have been recognized as authoritative standards by ISO. Therefore the “system integrity” test is to be applied by determining the state of compliance of an adduced record’s electronic record system with those National Standards of Canada. They state the basic, minimal requirements of adequate electronic records management. At present, there is no other authoritative source that can give the “system integrity” test meaning and content—e.g., with which to answer questions such as: (1) what is the scope of a records management “system”; can it be a division or a branch office of an organization’s records management operations; and, (2) what are the requirements for proving the “integrity” of an electronic records system?
     
      In contrast, the “usual and ordinary course of business” test of the older business record provisions is a completely subjective test—each business determines its own “usual and ordinary” state of records management. If very inadequate, unreliable records management is the product of an organization’s “usual and ordinary course of business,” its records must be accepted as evidence once proved to have been so made.
     
      5.   The Complexity and Vulnerability of Electronic Records Management
     
      Electronic records management and its records are many times more complex and vulnerable than traditional “paper” records management and its records. Therefore the business record provisions in Canada’s Evidence Acts are very inadequate for determining the admissibility and “weight” (credibility; probative value) of electronic business records. An electronic records system is the product of many expert opinions, and therefore so is any printout from it. Expert opinions and choices are made to produce its many software programs, storage and communications devices, and the principles and practices by which it operates. But there is no procedure for determining the reliability of a printout as there is for determining the reliability of expert evidence given by a witness. Printouts should be challenged as to their reliability, but so challenged as an issue as to whether they should be accepted as evidence. In fact, they are not being challenged in regard to the technology and records management principles and procedures that underlie the creation, handling, storage, and retrieval of the information in them.
     
      All of the various pieces of software of an electronic records system have known “error rates” determined during their manufacture, as do its storage devices, and all of its other electronic components. In comparison, a breathalyzer-type machine used in impaired driving cases is a very simple device. But its software “source code,” being the primary code by which software is developed, is made up of approximately 54,000 lines of code. The industry average for error rates is 25 software defects for every 1,000 lines of code, which means there are 1,350 potential defects operative during every breathalyzer test.
     
      Traditional “paper” record systems are "stand alone units," meaning that they cannot be corrupted without having physical access to them. But electronic record systems are connected to the world of the Internet, therefore everything can get to them. Their security should be challenged before their printouts are admitted into evidence.
     
      6. Electronic Records in Electronic Records Systems are like Drops of Water in a Pool of Water
     
      Electronic records are not like paper records, but rather like drops of water in a pool of water. We cannot define or describe an electronic record in an electronic record system by describing the history of a particular group of electrons, no more than we can describe the history of a drop of water after it falls into a pool of water. When drops of water later emerge from the pool of water, we cannot associate any of them with particular drops that entered the pool of water. That comparison identifies the critical difference between traditional “paper” records management and electronic records management. A paper record maintains its physical, separate existence and identity while in its records system. Therefore the reliability of a paper record can be proved by proving its own particular history from its creation until it is used as evidence in a court, quite apart from the reliability of its record system. But an electronic record does not maintain its existence as a particular group of electrons in its records system, no more than a drop of water maintains its existence and identity in a pool of water. The molecules of the drop of water are subject to everything that happens to the pool of water. To prove the fate of any drop of water requires proof of what has happened to the pool of water, e.g., the purity of any drop in the pool of water requires proof of the purity of the pool of water as a whole. Similarly, once an electronic record is entered into an electronic records system, it is subject to everything that happens to that electronic record system and can possibly happen to that system, including its state of standards-compliance, security, and vulnerability to the Internet. It can be accessed, but remains subject to the state of its records system.
     
      7. An Electronic Record is no better than the Electronic Records System in which it is Recorded or Stored
     
      Therefore proof of an electronic record’s integrity requires proof of its electronic records system’s integrity. That is what the electronic records provisions of the Evidence Acts in Canada require—proof of the “integrity of electronic records system in which the record is recorded or stored.” Unlike a paper record, an electronic record is no better than the electronic records system in which it is recorded or stored. Therefore, if the quality of a records system must be proved before its records can be accepted as evidence, one should have to make disclosure of the means by which its “system integrity” is proved.There is no valid argument that proving the “system integrity” of an electronic record requires merely proof of the “system integrity” of that part of the records system in which the record existed—every record and its records system are part of the same, single, whole electronic “pool.” However, if parts of an organization’s records operations are sufficiently independent in operation, management, structure, and purpose, such parts may each constitute an “electronic records system” for purposes of proving “system integrity,” and therefore the admissibility of any particular electronic record. And therefore there is no valid argument that the “system integrity” test of admissibility is unworkable because it requires proof of the integrity of all of an organization’s local, national or international records management operations in order to use a single printout as evidence.
     
      8. A Certification Procedure for “Standards and ‘Legal’ Compliance”
     
      However, a formalized, process for certifying compliance with national and international standards of electronic records management, and therefore proving “system integrity,” would greatly facilitate proceedings determining the admissibility and “weight” of electronic records as evidence.Given the régime of “legal compliance” with laws requiring electronic records in which records systems now exist, a certification process would ensure, or greatly increase the probability of having the high quality of records management made necessary by laws based on records.
     
      9, The Common Defects of Electronic Records Management Systems Undermine Disclosure and Discovery
     
      There should be cross-examination to reveal the serious defects in the management of electronic records systems to show the state records management “system integrity.” Among the most common defects, routinely found in the systems of large organizations, including those of government departments and agencies, universities, public utilities, and commercial organizations are these:
     
        - the extent of the records holdings is not known;
     
        - records are not properly classified nor indexed such that retrieval of records relevant to any particular subject is very difficult if not impossible;
     
        - no definitive classification system among institutional, transitory, and personal records (e.g., which research and business records are those of each professor, and which are those of the university?);
     
        - no records manual, or one that isn’t kept current, or is not complied with;
     
        - no bylaws (or orders of comparable authority from senior management) dealing with the records system—essential for establishing an organization’s “usual and ordinary course of business” in regard to its records system;
     
        - email is not classified, indexed nor pruned, or possibly not retained; there is no “email protocol” operative throughout the organization;
     
        - records repositories are not well defined nor centrally accessible;
     
        - no central policy for records management thus allowing the many divisions of the organization each to operate its own independent records system according to its own rules and practices;
     
        - original paper records are not disposed of after being put into digital storage in a secure records management environment (with the exception of industry, professional, or special legal requirements as to retaining designated originals);
     
        - image quality is not verified when original paper records are converted to electronic images, and there is no imaging manual dealing with the technical requirements for scanning paper records into electronic storage;
     
        - metadata (data about data - data as to the management of records through time) is not used, therefore the biographical and bibliographical information about records is not used and properly maintained, therefore, e.g., there are extensive duplicates and an inability to track official or original versions;
     
        - no audit trails or controls detailing deletions, i.e., when, who, by what retention-destruction/disposal authority?;
     
        - no clear definition and practice as to what is the “deletion” of a record such that, e.g. records may or may not continue to exist in backup storage thus diminishing knowledge of the extent of records holdings and their control;
     
        - changes in technology result in unaccounted for and undocumented changes in records practice;
     
        - no consistent practice as to other forms of communication that create records, e.g., video and audio recordings, instant messaging, cellphone (mobile) communications;
     
        - no “retention and disposal” program for records lifecycles;
     
        - years after a merger or acquisition, the records system is still operating according to the conflicting rules of its component parts;
     
        - no chief records officer with clearly defined and adequate authority;
     
        - “orphaned data,” i.e., records that can no longer be retrieved or read because the new technology that now operates the records system is incompatible with the old technology that created those records (a “migration program” should accompany the installation of new technology);
     
        - poor security protection;
     
        - inadequate compliance with the records management requirements of the privacy laws,
     
        - inadequate testing, auditing, and quality control;
     
        - substantial non-compliance with the National Standards of Canada and with international standards concerning records management, and a lack of appreciation of the consequences of non-compliance.
     
      That there may in fact be such defects is ignored, Various pieces of an electronic records system are demanded, such as, records, metadata, email, and storage devices, but there is no demand for proof records management reliability and “integrity.” Electronic discovery is conducted without a records management audit or comparable certification of records management quality. Most of the above defects alone can result in: (1) relevant records not being found and made available; (2) inadequate discovery; and, (3) the inadmissibility (unacceptability), or the absence of the necessary “weight” that gives records the appearance of sufficient reliability.
     
      Because of such defects, a disclosure request as simple as, “produce all records on subject X,” cannot be complied with, with complete certainty as to accuracy, comprehensiveness, and knowledge of the time, cost, and disruption to be incurred by answering such request. Therefore one cannot defend oneself against disclosure and discovery demands that violate the “proportionality test” that dominates the “discovery of documents” in the Rules of Civil Procedure and in the Sedona Canada Principles. One has to know one’s records management system well, and have it operating well, to know what is disproportionate. But such defects will not be known if system documentation showing the state of the records management system is not kept or demanded by an opponent. A records management system should be regularly “internally audited,” and periodically independently, “externally audited.”
     
      There is also an important “auditing consequence” for defective records systems. An auditor/accountant in testing the “internal controls” of a records system, may find that they cannot be relied upon.Then the audit cannot be conducted using statistically based random sampling methodology to test the integrity of a series of records. A full substantive audit has to be done—which entails 100 % verification. If cross examination of a records manager revealed that no reliance could be placed on the system and that a full substantive audit had to be done, that in itself would give significant support to an argument that the records from that records system should not be relied upon. The records system lacks "system integrity." Therefore the “system integrity test” of the electronic records provisions of the Evidence Acts has a strong similarity to auditing sta.
     
      An electronic records system having the above defects cannot comply with the “prime directive” of the national and international standards: “An organization shall always be prepared to produce its records as evidence.”Its chief records manager cannot assert in good faith, that a comprehensive, accurate, and precise search of its records holdings is possible. In turn, it cannot comply with the “system integrity test” by which the admissibility of electronic records is to be determined.
     
      10. Disclosure and Discovery
     
      Such defects mean that disclosure and discovery cannot guarantee that all relevant records, information, and storage devices have been revealed. In criminal cases this serious defect is magnified by any law that limits disclosure to “the police investigative file.”Police officers are not records managers, nor familiar with the “litigation hold” that freezes normal records management operations, as required by the Sedona Canada Principles when legal proceedings are anticipated.They are now part of the law of civil litigation, but unknown to criminal practice.By the time the accused person receives the “disclosure package,” the opportunity to save relevant records and information from destruction may well have past. The “investigative file” is not a concept or a device designed to serve the right to make “full answer and defence,” nor the right to a “fair trial,” nor the right to be presumed innocent until proved to be guilty beyond a reasonable doubt. And motions for further production must be “particularized” so that they are not “fishing expeditions”—an unattainable requirement when one doesn’t have access to the records system, nor know what it might contain or did contain. To answer in defence of the existing disclosure practice, “we haven’t had any trouble before,” is not a valid answer when there has been no challenge before that has been informed by knowledge of the nature and practice of electronic records management and its national and international standards.
     
      The prosecutor of a case dependent upon records, when handing over the “disclosure package” to lawyer for the accused person may be compliant with the law, but not with the requirements of good practice and its ethics if “willfully blind” by failing to question how its contents were obtained and what more should and could be in it. Why not require prosecutors to demand proof from the police that the records system from which the records were obtained, does not have the above defects and is compliant with the established standards for electronic records management? What of a motion for production that states and requires only that—proof that the records system from which the alleged “key records” were obtained does not have those defects, and is in compliance with established standards of records management? Surely that is sufficiently particularized and beyond the prohibited “fishing expedition.” How could it not be sufficiently particularized given that there is no other authoritative source for defining “system integrity,” it being the test of admissibility?Present disclosure law and practice in effect reverses the burden of proof beyond a reasonable doubt and thereby increases the probability of wrongful convictions.
     
      11. Amendments to make clearly Relevant Evidence of Electronic Records Management
     
      There is a need for amendments to the records provisions of the Evidence Acts.But such amendments don’t occur until a court decision causes a crisis, as happened when Myers v. D.P.P. (H.L., 1965),caused the business record hearsay exceptions to be added to the Evidence Acts in Canada.Those provisions have been in the Evidence Acts since the late 1960’s, but their major defects have not been remedied by legislative amendment or case law (court decisions).And the electronic records provisions have been in the Evidence Acts in Canada since 2000, but there are still no decisions providing analysis of their key phrases such as, “the integrity of the electronic documents system.”And they were enacted more than 40 years after the business record provisions, and at least 40 years after electronic technology showed that it would soon dominate the production of business records.Why have such defects not been remedied? Because that which doesn’t need to be decided, doesn't get decided, nor fixed until case law declares it to be “broken.” Lawyers consent to the admissibility of each other’s records (to save time and costs), so issues do not get raised and decided. And very few lawyers know enough about records management principles and practices to mount effective challenges to the admissibility and “weight” of records.And such challenges are perceived to require expensive expert investigation, advice, and testimony that the client and Legal Aid, public defender, or legal clinic cannot afford. Therefore, the legislative drafting mentality, “don’t fix it if it isn’t broken,” magnifies the seriousness of the shortcomings that are the absence of case law, and the absence of adequate identification and analysis of these facts and issues in our legal literature.
     
      For a more “in depth” analyses, see these published articles that I have written:
     
        “The Admissibility of Electronic Business Records,” (2010), 8 Canadian Journal of Law and Technology 105;
     
        “Electronic Discovery in the Criminal Court System,” (2010), 14 Canadian Criminal Law Review 111;
     
        “Electronic Records as Documentary Evidence,” (2007), 6 Canadian Journal of Law and Technology 141.
     
        “Electronic Records for Evidence and Disclosure and Discovery” (2011), 56 Criminal Law Quarterly 1

    【作者简介】
    Ken Chasse, Toronto, Canada, member of the Law Society of Upper Canada (Ontario), and of the Law Society of British Columbia, Canada.
    【注释】
    [1] Ken Chasse, Toronto, Canada, member of the Law Society of Upper Canada (Ontario), and of the Law Society of British Columbia, Canada.
    [2] “Discovery” is the procedure wherein the opposing parties in legal proceedings exchange relevant records before trial. “Electronic discovery” (e-discovery) now constitutes almost the whole of document discovery because almost all records are now electronically recorded and stored. E-discovery can sometimes include the production of recording devices and metadata, so as to show the history of a record. That history may require the preservation of what is mistakenly thought to be merely a “transitory record” that can be disposed of when no longer needed. Electronic discovery is now sufficiently complex as to be a separate area of law, and one requiring legal advice. “Metadata” is the structured, encoded data that describes characteristics of information-bearing entities. It is data about data. It is a critical source of corporate information content. An inability to maintain or produce metadata can substantial penalties during legal proceedings.
    [3] “Admissibility” means acceptable as evidence. Before a record can be accepted as evidence it must be proved that it complies with the legal rules for using records as evidence. The tests for using electronic records as evidence are: (1) the “system integrity” test; (2) a record “made in the usual and ordinary course of business”; and, (3) the “circumstances of the making of the record.” A formal definition of “admissibility” is: “The quality or state of being allowed to be entered into evidence in a hearing, trial, or other proceeding.” (Black’s Law Dictionary, 8th edition, p. 50). However, often a record is “admitted on consent,” i.e., no objection being raised by an opposing party in legal proceedings, the record can be used as evidence without satisfying such legal rules for “admissibility.”
    [4] Infra notes 15 and 40.
    [5] Infra note 13.
    [6] Infra note 13, clause 5.4.3c of, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (p. 17); and, paragraph 4.1.2 of, Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (p. 21).
    [7] Infra notes 17, 38 and 39, and accompanying text. The underlying principle is that the “profit motive,” as represented in the admissibility test, “the usual and ordinary course of business” will ensure that good records management, for otherwise, the information necessary for good business decisions will not be available.
    [8] Infra notes 33 and 34 and accompanying text. They have been developed for Canada from the U.S. Sedona Principles, infra note 33.
    [9] For example, the Ontario Rules of Civil Procedure, Rule 29.1.03(4) states:  “Principles re Electronic Discovery–In preparing the discovery plan, the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed by and available from The Sedona Conference.”
    [10] The “weight” of evidence refers to its credibility, probative value, persuasiveness, usefulness as evidence. The “weight of the evidence” means, “the persuasiveness of some evidence in comparison with other evidence.” (Black’s Law Dictionary, 8th edition, p. 1625). After a record is “admitted into evidence” (is accepted as “admissible evidence”), its “weight” has to be determined when used in deciding the issues in the proceedings.
    [11] Report On Evidence (Ottawa: Information Canada, 1975), p.4. It is published in full at, (1976), 34 C.R.N.S. 26. Its outstanding feature was the Evidence Code it contained and proposed be enacted. A true code is a comprehensive enacted statement of law, such that it is to be the authoritative, comprehensive and exclusive source of that law; see: Ken Chasse, “The Meaning of Codification” (1976), 35 C.R.N.S. 178. Therefore, the Criminal Code, R.S.C. 1985, c. C-46, is not a true code. The Evidence Code’s 89 sections were, for the most part, a close copy of the U.S. Federal Rules of Evidence (the “FRE,”), which most U.S. states have adopted as their state codes of evidence. But very unfortunately, it never became law; see why at: Ken Chasse, “Canada’s Evidence Code?” (2006), 64 The Advocate 659 (published by the Vancouver Bar Association and distributed to all members of the Law Society of British Columbia). Lost was a chance to nullify the Report’s main assertion as to the law of evidence’s being ignored. The FRE has proved that codification has that effect; thereafter the law of evidence is not ignored, and access to justice is improved, inter alia because the law is no longer fragmented into many places, and legal research is rendered more efficient and effective. Also lost was an opportunity to make relevant a wealth of free legal technology in the form of the case law generated by the FRE, particularly its “records as evidence” case law.
    [12] Also ignored is the fact that the Commissioners of the Law Reform Commission of Canada who put their names to the Report On Evidence were very authoritative and well respected lawyers and judges: E. Patrick Hartt, chairman; Antonio Lamer, vice-chairman; J.W. Mohr, commissioner; G.V. LaForest commissioner. Three of them were outstanding lawyers and later outstanding judges; two of them became justices of the Supreme Court of Canada, and Antonio Lamer became Chief Justice of Canada (1990-2000). (J.W. Mohr was from a discipline other than law.)
    [13] After ten years as an Assistant Crown Attorney (a prosecutor of criminal offences) in the Crown Attorney’s Office in Toronto, I worked in the federal Department of Justice in Ottawa for three years (1976-78) developing proposed legislation. My major project was the Evidence Code in the Report On Evidence of the Law Reform Commission of Canada, ibid., which commission existed from 1971 to 1993. As part of the extensive national consultation project I conducted, a group of records management experts provided advice concerning the Evidence Code’s records provisions. That led to my being a legal adviser on committees, sponsored by the Canadian General Standards Boards (CGSB), who drafted the National Standards of Canada concerning records management: (1) Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93 (first published in 1979 as, Microfilm as Documentary Evidence); and, (2) Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005, published in December 2005. The CGSB is a standards-writing agency within Public Works and Government Services Canada (a department of the federal government), accredited by the Standards Council of Canada as a standards development agency. And, the Council must certify that standards have been developed by means of the required procedures before it will designate them as being National Standards of Canada. That is a condition-precedent to their being recognized as National Standards of Canada by the International Organization for Standardization (ISO) in Geneva, Switzerland. (“ISO” is a Greek word that it has adopted as a common acronym for use in all languages.) My work on the CGSB committees has led to my working with records management experts on projects for several different kinds of organizations. My legal advice concerns “legal compliance” with the major laws that make demands upon all records systems, and compliance with the “legal requirements” of the National Standards of Canada.
    [14] “Accurate” means retrieving all of the records that are relevant; “precise” means retrieving only what is relevant. A search may be precise in that it retrieves only relevant records, but not be sufficiently accurate because it doesn’t retrieve all relevant records. And “comprehensive” means encompassing all relevant records, records systems, information, and places.
    [15] For example; sections 31.1-31.8 of the Canada Evidence Act, R.S.C. 1985, c. C-5 (“CEA”); ss. 41.1-41.8 of the Alberta Evidence Act, R.S.A. 2000, c. A-18 (“AEA”); s. 34.1 of the (Ontario) Evidence Act, c. E.23 (“OEA”); and, ss. 23A-23H of the (Nova Scotia) Evidence Act, R.S.N.S. 1989, c. 154 (“NSEA”). For Québec, comparable provisions can be found in the Civil Code of Québec. S.Q. 1991, c. 64, Book 7 “Evidence,” Articles 2831-2842, 2859-2862, and 2869-2874, and in, An Act to Establish a Legal Framework for Information Technology, R.S.Q., 2001, c. C1-1, ss. 2, 5- 8 and 68. Note that these electronic record provisions contain subsections that make evidence of standards, such as Canada’s national standards of electronic records management, relevant, “for the purpose of determining under any rule of law whether an electronic record is admissible,” e.g., s. 31.5 CEA; s. 41.6 AEA; s. 34.1(8) OEA; and, s. 23F NSEA. Twelve of Canada’s 14 jurisdictions have electronic records provisions in their legislated laws of evidence. The Evidence Acts of British Columbia and Newfoundland and Labrador do not yet have electronic records provisions. (B.C. has “electronic court document” provisions in its Evidence Act, R.S.B.C. 1996, c. 124, ss. 41.1-41.4 (“BCEA”), but which are confined to information that is recorded or stored, “in or by an electronic court system,” which is one maintained by a court for the purposes of the administration of justice.) Although the provisions of the provincial Evidence Acts are not directly applicable to criminal proceedings, they are cited in this article:  (1) to aid comparisons in wordings thus facilitating insights and arguments; (2) to facilitate finding helpful case law under provisions comparable to those in the CEA; and, (3) because criminal lawyers often deal with provincial offences either alone or in conjunction with criminal offences under federal statutes. The CEA applies to proceedings under federal statutes, and provincial Evidence Acts apply to proceedings under provincial statutes, unless such statutes state to the contrary, or allow the use of another non-conflicting Evidence Act, e.g., s. 40 CEA allows use of, “the laws of evidence in force in the province in which those proceedings are taken,” subject to the CEA and other Acts of Parliament, which provides a fourth reason for citing sections of the provincial Evidence Acts herein.
    [16] Note that the electronic record provisions of the AEA, OEA, and NSEA use the terms, “electronic record” and “electronic records system,” and the CEA uses, “electronic document” and “electronic documents system.” Prior to “proclaiming in force” the CEA provisions in 2000, “document” meant a paper record (an electronic record printed out on paper). Now greater attention must be given to context because “record” and “document” will be used interchangeably because of this transgression in legislative drafting. “Record” is the much more frequently used phrase, so it used in this article.
    [17] Subsections of the business records provisions such as s. 30(6) CEA, allow evidence of the “circumstances of the making of the record.” If such “circumstances” evidence were that the record system in question was so bad as to cast doubt on the credibility on the evidence that the record in question was truly made “in the usual and ordinary course of business” as required by s. (30)(1), such evidence would not be attacking the efficacy of the test of admissibility provided by that subsection. But if the argument in opposition to admissibility were that “the circumstances of the making” were those of electronic records and electronic records systems, but without proof of compliance with the national standards (supra note 13) such that the “usual and ordinary course of business” test in s. 30(1) is not an appropriate or adequate test for electronic records, the issue thereby raised would be, which is the superior or dominant subsection? Can such “electronic” evidence overrule or nullify evidence given in satisfaction of the “usual and ordinary course of business” test? If it can, then the result would mean that business record provisions of the s. 30 CEA type (which includes those of the three territories) cannot be used for rendering electronic records admissible. But unlike s. 30(6) CEA, the comparable subsections of the provincial Evidence Acts expressly limit the relevance of such evidence of “the circumstances of the making” to issues of “weight,” it cannot affect admissibility. To be similarly successful, the argument that would have to be accepted as valid would be that where the evidence of “the circumstances of the making” shows that the records adduced are electronic records, recorded and stored in electronic records systems, evidence that the records were made “in the usual and ordinary course of business” is insufficient to give them any “weight,” i.e., insufficient to enable the trier of fact to rely on them. If that argument were successful, business record provisions would not be able to used in order to have electronic records used as evidence. However, if the evidence as to the records having been “made in the usual and ordinary course of business” proved the use of electronic records management in compliance with the national standards, then the business record provisions could be successfully used so as to have electronic records used as persuasive evidence. Rule 803(6) of the U.S. Federal Rule of Evidence, Public Law 93-595 § 1, Jan. 2, 1975 88 Stat.1926 (“FRE 803(6)”), which is also a business records-type provision, is better suited for this purpose because: (1) it contains the phrase, “data compilation”; and, (2) the following words limit admissibility and are a more direct invitation to the use of authoritative standards of records management: “… unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.” And the definition of “original” in FRE 1001(3) contains the words: “If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an ‘original’.” Which definition facilitates the use of electronic records in accordance FRE 1002: “To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules of by Act of Congress.”
    [18] For example, FRE 803(6) ibid, uses the words, “in the course of a regularly conducted business activity.” The business records exception to the rule against hearsay evidence at common law uses the phrase, “in the routine of business.” After the major revision of the common law exception in Ares v. Venner, Ewart, writing in 1984, defined it this way: “In the result, the modern rule can be said to make admissible a record containing (i) an original entry (ii) made contemporaneously (iii) in the routine (iv) of business (v) by a recorder with personal knowledge of the thing recorded as a result of having done or observed or formulated it (vi) who had a duty to make the record and (vii) who had no motive to misrepresent.” See: Ares v. Venner, 〔1970〕 S.C.R. 608, 14 D.L.R. (3d) 4, 12 C.R.N.S. 349 (SCC); and, J. Douglas Ewart, Documentary Evidence In Canada (Toronto: Carswell, 1984 (but out of print)), at p. 54. At p. 53, the author presents the constituent elements of the common law rule, and the “Impact of Ares” upon each of them, by way of a comparative listing of the “Traditional Rules” that made up the common law hearsay exception before Ares (in left hand column) with the “Impact of Ares” upon each of them (in the right hand column).
    [19] Supra note 13 contains the National Standards of Canada for electronic records management.
    [20] The ISO website states of the acronym “ISO”:  “Because ‘International Organization for Standardization’ would have different acronyms in different languages (‘IOS’ in English, ‘OIN’ in French for Organisation internationale de normalisation), its founders decided to give it also a short, all-purpose name. They chose ‘ISO’, derived from the Greek isos, meaning ‘equal’. Whatever the country, whatever the language, the short form of the organization's name is always ISO.” See; online: < http://www.iso.org/iso/about/discover-iso_isos-name.htm>.
    [21] An electronic business record, to be admitted into evidence, has to satisfy both business record and electronic record provisions of the Evidence Acts. Although the latter concern the best evidence rule and authentication issues, and the former the hearsay rule issues, evidence that satisfies the electronic record provisions should by definition (“system integrity”), be judged as being sufficient for the latter. The business record provisions establish a statutory business records exception to the rule against hearsay evidence. The electronic records provisions establish an exception to the best evidence rule. For arguments that the best evidence rule is best abolished and inappropriate for issues concerning electronic records, see: Ken Chasse, “The Admissibility of Electronic Business Records” (2010), 8 Canadian Journal of Law and Technology 105 at 138.
    [22] See the sources cited in, Ken Chasse, “Electronic Discovery in the Criminal Court System” (2010), 14 Canadian Criminal Law Review 111 at 156-157, (and the authorities cited in notes 129-132 of that text), quoting from, William C. Head and Thomas E. Workman Jr., “An Analysis of ‘Source Code’ in the United States: What Challenges Have Been Asserted, and Where is this Litigation Heading Analysis of ‘Source Code’?,” at p. 14,  presented at the International Council on Alcohol, Drugs and Traffic Safety, Seattle Washington, August 30, 2007, online:   <http://www.icadts2007.org/print/196sourcecode.pdf> .
    If the committee that picks the “makes and models” of breathalyzer-type machines to be used to investigate offences under the Criminal Code, R.S.C. 1985, c. C-46, has only toxicologists and no software experts, its designations can be attacked. And so can the provisions of the Criminal Code dependent on the committee’s designations—“Charter attacked” (Canadian Charter of Rights and Freedoms, Part 1, Constitution Act, 1982, enacted by the Canada Act 1982 (U.K.) c. 11, R.S.C. 1985, Appendix II, No. 44). See the definition of “approved instrument” in Criminal Code s. 254(1), and Can. Reg. SI/85-201—Approved Breath Analysis Instruments Order. See: Ken Chasse, “Electronic Discovery in the Criminal Court System (2010), 14 Canadian Criminal Law Review 111 at 157-160, under the heading, “11. Breathalyzer Certificates and Systems Documentation as Electronic Records Requiring Disclosure.”
    [23] The presumptions in s. 31.3 CEA, s. 34.1(7) OEA, and s. 41.5 AEA do not alter this requirement. Proof of their conditions-precedent will make necessary the same level of production. And, production by the proponent of admissibility is necessary if the “evidence to the contrary” mechanism is to be meaningful—the opponent of admissibility cannot investigate “system integrity” when there is no access to the system.
    [24] There is a need for a certification process whereby organizations can easily have their electronic records systems certified as being in compliance with the National Standards of Canada, supra note 13, thus making much easier proof of “system integrity” and obtaining admissibility. Evidence of compliance could then be given by affidavit, comparable to the affidavit for production of banking records provided by s. 29(2) CEA, and the affidavit provided in the electronic record provisions, s. 31.6 CEA. Expert certifiers, trained by the Canadian General Standards Board (CGSB, supra note 13 and officially designated as such, could be witnesses who would greatly simplify the deciding of issues of admissibility and weight, and free disclosure and discovery of demands for proof of “system integrity.” They could testify as to the requirements of the national standards, and as to the state of any particular records system in regard to those standards. Affidavit evidence may substitute for testimony once the use of such certifiers has a favourable forensic “track record,” just as certificate evidence has replaced the testimony of police breathalyzer officers in every impaired driving and “over 80” case, as was the procedure during my early years as a prosecutor, supra note 13. Expert certifiers would be hired by the party adducing the electronic records. Also such a certification system would facilitate providing proof that a records system can satisfy the environment of “legal compliance” applicable to all electronic records systems now. (See, Ken Chasse, “Electronic Records in the Criminal Court System” (2010), 14 Canadian Criminal Law Review 111 at 147-150, under the heading, “RIM Law is an Integrated System of ‘Legal Compliance’.” “RIM” = records and information management) Other systems, equally dependent upon high quality electronic records management, use certification to ensure quality. For example, in regard to certifying compliance with the Model Code for the Protection of Personal Information, made mandatory by s. 5 of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 (“PIPEDA”), there are professional auditors whose work relates to that of the Office of Privacy Commissioner of Canada, online: <http://www.priv.gc.ca/>, And similarly, established certification processes exist for the standards of the ISO, supra notes 13 and 20; online:  <http://www.iso.org/iso/about.htm.>. And for smaller records systems, the chief records manager could provide comparable evidence of “‘legal’ and standards compliance.”
    [25] This list of defects comes from the records management experts I work with on projects concerning the maintenance, alteration, and updating of large electronic records systems.
    [26] The ninth in the list of points in proof of “system integrity,” specified in the National Standard of Canada, Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005 (supra, note 13) section 5.5, states:
    i) security – security procedures are in place to protect the integrity of the records management system; at least the following should be able to be proved:
    1. protection against unauthorized access to data and permanent records;
    2. processing verification of data and information in records;
    3. safeguarding of communications lines;
    4. maintenance of backup copies of records to replace falsified, lost and destroyed permanent or temporary records;
    5. retention and disposition of electronic records in compliance with legislated and internal retention periods and disposition 〔disposal〕 requirements, and documenting such compliance and disposition schedules; and,
    6. a business continuity plan for electronic records and associated data, including off-site copies of essential files, operating and application software 〔i.e., a “disaster recovery” plan for fire, flood, mishandling, sabotage and similar system vulnerabilities〕.
    [27] For example, s. 5 in Part 1,“Protection of Personal Information in the Private Sector,” of the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, (“PIPEDA”) makes mandatory, compliance with the National Standard of Canada, Model Code for the Protection of Personal Information, CAN/CSA-Q830-96, which is Schedule 1 of the Act. PIPEDA applies not only federally, but also in those provinces that don’t have their own PIPA (personal information protection Act), which is all provinces except British Columbia, Alberta, and Quebec—see s. 26(2)(b) re exempting provinces. Part 2, “Electronic Documents,” is the federal electronic commerce legislation (which has similar counterparts in the 13 other jurisdictions of Canada except for the Northwest Territories (i.e., 10 provinces plus 3 territories)), and Part 3, “Amendments to the Canada Evidence Act,” added the electronic records provisions to the CEA, ss. 31.1-31.8 (which have similar counterparts in all of the other jurisdictions except for British Columbia and Newfoundland and Labrador).
    [28] I have been the “legal advisor” on such external, independent audit teams with records management experts. That process provides a thorough system analysis and comprehensive certification of compliance with the two National Standards of Canada cited supra note 13 and accompanying text. But a quicker and less expensive procedure is needed for certifying such “systems compliance” for records to be used as evidence. Different reasons for such certifications should create different levels of certification. Therefore, the Canadian General Standards Board, the sponsor of these two standards, has been asked to consider establishing educational courses for records management specialists to become licensed, or otherwise official certifiers. See the discussion of this proposal in: Ken Chasse, “Electronic Discovery in the Criminal Court System,” (2010), 14 Canadian Criminal Law Review 111 at 163-65, and its recommendations 6 and 7 on p. 167.
    [29] For the principles, definition, and examples of, “internal controls,” see these sites from the University of Florida website: http://fa.ufl.edu/uco/internal-control-checklist.asp
    http://fa.ufl.edu/uco/internal-control-principles.asp
    http://fa.ufl.edu/uco/guiding-principles-financial-management.asp
    http://fa.ufl.edu/uco/internal-control-checklist.pdf
    [30] Electronic Records as Documentary Evidence CAN/CGSB-72.34-2005, clause 5.4.3 c) at p. 17; and, Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93, paragraph 4.1.2 at p. 21, supra note 13 and accompanying text.
    [31] There are more than 200 specific compliance tests that the project teams I have worked with apply to determine the level of compliance of a records system with the national standard, Electronic Records as Documentary Evidence, supra note 13. There are more than 50 tests performed in relation to the earlier national standard, Microfilm and Electronic Images as Documentary Evidence CAN/CGSB-72.11-93, supra note 13. The resulting report indicates the level of compliance found by each test, along with recommendations, and a legal opinion as to “legal compliance” with legislated records and records management requirements and consequences.
    [32] See: R. v. McNeil, 〔2009〕 S.C.J. No. 3, 〔2009〕 1 S.C.R. 66; R. v. Shearing, 〔2002〕 3 S.C.R. 33, 165 C.C.C. (3d) 225, 2 C.R. (6th) 213; R. v. Mills 〔1999〕 3 S.C.R. 668, 139 C.C.C. (3d) 321, 28 C.R. (5th) 207, 180 D.L.R. (4th) 1; R. v. O’Connor 〔1995〕 S.C.J. No. 98, 〔1995〕 4 S.C.R. 411, 103 C.C.C. (3d) 1; R. v. Chaplin, 〔1995〕 1 S.C.R. 727, 96 C.C.C. (3d) 225; R. v. Stinchcombe, 〔1991〕 S.C.J. No. 83, 〔1991〕 3 S.C.R. 326, 68 C.C.C. (3d) 1; R. v. Bjelland, 〔2009〕 S.C.J. No. 38, 2009 SCC 38. And see the analysis of these cases in, Ken Chasse, “Electronic Discovery in the Criminal Court System” (2010), 14 Canadian Criminal Law Review 111 at 112-127.
    [33] The Sedona Canada Principles—Addressing Electronic Discovery, online: The Sedona Conference, Canada, January 2008; online:
    <http://www.thesedonaconference.com/content/miscFiles/canada_pincpls_FINAL_108.pdf>
    or, <http://www.thesedonaconference.org/dltForm?did=canada_pincpls_FINAL_108.pdf>
    and, E-Discovery Canada website, hosted by LexUM (at the University of Montreal), online:
    <http://www.lexum.umontreal.ca/e-discovery>.
    Sedona Canada Principle 3 states: “As soon as litigation is reasonably anticipated, parties must consider their obligation to take reasonable and good faith steps to preserve potentially relevant electronically stored information.”
    There are also, The Sedona Principles Addressing Electronic Document Production, Second Edition (June, 2007) applicable in the U.S., also available from the Sedona Conference website, online: <http://www.thesedonaconference.org/dltForm?did=TSC_PRINCP_2nd_ed_607.pdf>.
    And the 2008 “Cooperative Proclamation,” described as, “a coordinated effort to promote cooperation by all parties in the discovery process to achieve the goal of a ‘just, speedy, and inexpensive determination of every action’.” Online: <http://www.thesedonaconference.org/content/tsc_cooperative_proclamation/proclamation.pdf>.
    [34] For example, the Ontario Rules of Civil Procedure, Rule 29.1.03(4) states:  “Principles re Electronic Discovery–In preparing the discovery plan, the parties shall consult and have regard to the document titled ‘The Sedona Canada Principles Addressing Electronic Discovery’ developed by and available from The Sedona Conference.”
    [35] Proof of “system integrity” is the admissibility test created by the electronic records provisions, supra note 15 and accompanying text. Proof that a record was made “in the usual and ordinary course of business” is the admissibility test created by the business record provisions. In regard to electronic business records, both must be satisfied.
    [36] See: Ken Chasse, “The Admissibility of Electronic Business Records” (2010) 8 Canadian Journal of Law Technology 105 at 172-175; Ken Chasse, “Electronic Discovery in the Criminal Court System” (2010), 14 Canadian Criminal Law Review 111 at 166-168; and, Ken Chasse, “Electronic Records as Documentary Evidence” (2007), 6 Canadian Journal of Law Technology 141 at 147-149, and 156-157.
    [37] 〔1965〕 A.C. 1001, 〔1964〕 2 All E.R. 881, 48 Cr. App. R. 348 (H.L.).
    [38] Section 30 CEA, s. 42 BCEA; s. 35 OEA; and, s. 23 NSEA, supra note 17 (The Evidence Code, supra note 13 was a distinct improvement because its record provisions included phrases such as, “electronic recording,” “computer or similar device,” and, “printout or other output readable by sight, shown to reflect the data accurately.”) For Québec, provisions comparable to both the business and electronic provisions can be found in the Civil Code of Québec. S.Q. 1991, c. 64, Book 7 “Evidence,” Articles 2831-2842, 2859-2862, and 2869-2874, and in, An Act to Establish a Legal Framework for Information Technology, R.S.Q., 2001, c. C1-1, ss. 2, 5- 8 and 68. The Evidence Acts of Alberta, and Newfoundland and Labrador do not contain business record provisions, meaning that the business record exception to the hearsay rule at common law would be used. And it can be used along with a statutory provision, as a second ground for admissibility. The common law business records exception uses the phrase, “in the routine of business.” It contains: (1) no prerequisite notice period as do most of the Evidence Act business record provisions; and, (2) it contains no prohibition as to “records made in contemplation of litigation” (as does s. 30(10) CEA, and s. 42(4) BCEA. For an analysis of this common law hearsay rule exception, see: (1) Ken Chasse, “Electronic Records As Documentary Evidence,” (2007) 6 Canadian Journal of Law and Technology” 141 (the exception is analyzed at several places in the article); (2) J. Douglas Ewart, Documentary Evidence In Canada (Toronto: Carswell; 1984 (but out of print)), p. 53, whereat the author provides a comparative list of the constituent elements of the common law rule, and the “Impact of Ares” 〔Ares v. Venner, 〔1970〕 S.C.R. 608, 14 D.L.R. (3d) 4, 12 C.R.N.S. 349 (SCC)〕 upon each of the constituent elements of the common law rule by way of a comparative listing of the “Traditional Rules” that made up the common law hearsay exception before Ares (in left hand column) with the “Impact of Ares” upon each of them (in the right hand column); (3) a useful discussion of these points can also be found in the, Report of the Federal/Provincial Task Force on Uniform Rules of Evidence, (Toronto: Carswell; 1982) at pp. 390-401 (being ss. 29.11 & 29.12 of the Report), and elsewhere whereat the decision in Ares v. Venner, supra, is discussed; (4) in the context of criminal proceedings and generally in relation to the Canada Evidence Act, see: E.G. Ewaschuk, Criminal Pleadings and Practice in Canada, 2nd ed. (Toronto: Canada Law Book, 2010), at para. 16:15110, “Business records”; and, (5) the “progeny of Ares” (i.e., case law produced by Ares v. Venner, supra) should also be analyzed, for it remains today the leading decision defining the common law exception for business records in Canada.
    [39] Examining only the case law concerning the use of the business record provisions (e.g., s. 30 CEA; s. 42 BCEA; s. 35 OEA; and, s. 23 NSEA) would lead one to conclude that they were doing “just fine.” But their serious defects have been much discussed in the secondary literature. Here are examples: (1) the Ontario Law Reform Commission’s Report On The Law of Evidence (Toronto: Ontario Ministry of the Attorney General, 1976), contains this comment about s. 30 of the Canada Evidence Act (at pp. 189-90): “However, the language may not be sufficiently clear to include the complete process of storing records by computer and their retrieval in intelligible form for use in the courts. … From the terminology used in section 30 of the Canada Evidence Act, it appears that this provision is not entirely responsive to the procedures used in recording information in computers. The record produced in court would be a ‘print-out’ of the information and calculations stored in the computer, not ‘a transcript of the explanation of the record or copy” 〔s. 30(4) “Where record kept in form requiring explanation”〕. What is retrieved is not necessarily a copy of what is stored, but the data after it has been processed by the computer. Undoubtedly, an explanation of the whole process is required to determine the reliability of the method of storing information, but the ultimate production in a form usable by the courts is the product of a whole series of processing steps performed upon the original record made for the purpose of storing in the computer. The print-out is in effect a mechanical translation of the data fed into the computer and stored.” (2) The Law Reform Commission of Canada’s “Evidence Code,” in its Report on Evidence (Ottawa: Information Canada, 1975) impliedly criticized the business record provisions by including in its record provisions (ss. 75-81), the phrases, “electronic recording,” and “data compilation,” and defined an “original” as including a printout. Note that these very authoritative criticisms were thus published but a few years after the business record provisions were enacted. And see also the critical analysis of, (3), J. Douglas Ewart, Documentary Evidence In Canada (Toronto: Carswell; 1984 (but out of print)) at 80-110; and, (4) Ken Chasse, “Electronic Records as Documentary Evidence” (2007), 6 Canadian Journal of Law and Technology 141 at 147-151. Therefore, in contrast, even though the electronic record provisions were not enacted until 2000, the fact that they were enacted at all without a “case law-caused crisis,” such as prompted the business record provisions to be added to the Evidence Acts, is unique in Canadian legislation concerning the use of records as evidence.
    [40] Section 31.2(1)(a) CEA; and in relation to the comparable phrase, “the integrity of the electronic records system,” in: s. 41.4(1) AEA; s. 34.1(5.1) OEA; and s. 23D(1) NSEA, which appears in most of the Evidence Acts.
    [41] The then Minister of Justice and Attorney General of Canada, John Turner, told the House of Commons on January 20, 1969, (Hansard, House of Commons Debates, p. 4496) on Second Reading of the present s. 30 CEA: “It is therefore apparent that the law in this country has fallen far behind the major changes which the computer age has brought to business methods.” And he justified s. 30’s low “threshold of admissibility” as follows: “I consider that, in general, the law of evidence should be moving away from the rigid rules of admissibility toward assessment of  the cogency of logically relevant facts. If the facts are relevant, what is the best way to introduce those facts without there being any unfairness to either side? Accordingly, Mr. Speaker, this bill would, subject to certain safeguards, render business records as defined in the bill generally admissible and would entrust the courts with the discretion of assessing the probative value of those documents.” In fact to the contrary, the “computer age” has necessitated a more demanding and objective standard for admissibility as exemplified by the electronic record provisions such as ss. 31.1 to 31.8 CEA.
    [42] However, lawyers’ seminars and conferences will be educating them as to the principles of electronic records management for purposes of adducing electronic  records as evidence and for electronic discovery. For example, the website announcement for one series of seminars in New York was for lawyers needing to, “produce data to a government agency or opposing party in a lawsuit.” These seminars provided guidance, “on recordkeeping best practices and policy creation, implementation and monitoring,” and to, “explore best practice recordkeeping standards which consider web-based storage technology, emerging internal repository applications and business communications via social media.”
    These were seminars held, January 31 to February 2, 2011, by ARMA International and Kroll Ontrack Educational Track at LegalTech New York 2011. The Kroll Ontrack website states of itself: “The world leader in legal technologies and litigation consulting, including: E-Discovery; Document Review; Computer Forensics & Investigations; ESI Consulting 〔electronically stored information〕; Secure Information Services; Jury Consulting; Trial Presentations; Discovery Repository Services.”
    See Kroll Ontrack; online:  <http://www.krollontrack.com/>
    One of seminar topics was a review of ARMA International’s GARP Principles (“Generally Accepted Recordkeeping Principles”). This is a 10-page .pdf statement of electronic records management principles with commentary, providing somewhat the same type of information as the National Standards of Canada (supra note 13), but not having the same status and authority of a “command statement,” as that given to National Standards of Canada by the Standards Council of Canada, and the ISO, supra notes 13 and 20. The GARP text can be downloaded at; online:  .
    The website of ARMA International (formerly the American Records Management Association) states that it is: “a not-for-profit professional association and the authority on managing records and information – paper and electronic.” It has several divisions one concerning educational programs for lawyers and records managers, and another concerning electronic discovery. See ARMA; online:
    <http://www.arma.org/about/overview/index.cfm>, and, <http://www.arma.org/legal/ediscovery/index.cfm>.
    Similar seminars and conferences can be expected in Canada. And therefore Canadian records managers should expect to be cross-examined, in civil and well as criminal proceedings, as to the state of compliance of their records management systems with the National Standards of Canada, in relation to the “system integrity” test of admissibility in the electronic record provisions of the provincial, territorial, and federal Evidence Acts.

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