20
2.3.18 Provisions for dealing with record retention are also important since
experience has shown that difficulties of reading electronic material
when technology changes rapidly and the medium is not necessarily well
suited to archival conditions. For example, it may be necessary to ensure
that changes in format do not compromise accuracy. It may also be
necessary to clarify that legal requirements for document retention are
satisfied by electronic copies, again possibly with certain exceptions.
2.3.19 Historically, courts have generally preferred oral testimony of witnesses
to the presentation of information in documents. To be admissible, a
document must be relevant (as must oral testimony) and it must be at
least somewhat reliable for showing the facts—i.e., must not be
counterfeit or altered. Authentication of a document is fundamental to its
admissibility and this may include developing a foundation for its
authenticity—including testimony on how and where it was made,
stored, copied etc.) If the original document cannot be authenticated,
then even reliable evidence with respect to its conversion to another
format will not render it credible or admissible. Consequently, various
“rules of evidence” and commercial rules have developed to deal with
such matters as business records made in the course of business or the
time and place when a contract is made. Electronic documents and ecommerce raise new issues. For example, is a computer printout an
“original”? What is the impact of migration to a new format when
information is being archived or kept for a similarly long time? What is
the status of computer-generated information?
2.3.20 The evidentiary value of documents is linked, of course, to the
provisions in an Electronic Commerce Act. Meeting the provisions of
such legislation, however, does not guarantee that a document will be
admissible but it allows certain presumptions, such as the time and place
of the making of a contract, to be established. It also provides a
framework that the court can look to in determining the reliability of the
authenticity of an electronic signature, for example, and the weight to be
given to attribution. The creation of equivalency rules and statements
that electronic documents may be legally recognised provides the courts
and other tribunals (including arbitrators and other practitioners of
dispute resolution) with guidance and authority to accept electronic
documents in evidence.
2.3.21 The Uniform Law Conference of Canada developed a Uniform
Electronic Evidence Act,9 which is intended to provide examples of
amendments to existing rules of evidence to facilitate the admissibility
9
www.law.ualberta.ca/alri.ulc/current/eeeact.htm