INTRODUCTION AND BRIEF DESCRIPTION
This section allows for electronic documents to be accepted as valid if certain conditions are met for information, affidavits, solemn declarations, or statements made under oath.
SECTION WORDING
846 If under this Act an information, an affidavit or a solemn declaration or a statement under oath or solemn affirmation is to be made by a person, the court may accept it in the form of an electronic document if (a) the person states in the electronic document that all matters contained in the information, affidavit, solemn declaration or statement are true to his or her knowledge and belief; (b) the person before whom it is made or sworn is authorized to take or receive informations, affidavits, solemn declarations or statements and he or she states in the electronic document that the information, affidavit, solemn declaration or statement was made under oath, solemn declaration or solemn affirmation, as the case may be; and (c) the electronic document was made in accordance with the laws of the place where it was made.
EXPLANATION
Section 846 of the Criminal Code of Canada allows for the use of electronic documents in legal proceedings when an information, affidavit, solemn declaration or statement under oath is required. This provision recognizes the growing technological advancements in our society and acknowledges that electronic documents can be just as legally binding as physical ones. To ensure the authenticity of the electronic document, the person making the statement must declare that all the information contained in the document is true to their knowledge and belief. Additionally, the person who receives the statement must be authorized to do so and must confirm that the statement was made under oath, solemn declaration or solemn affirmation. The use of electronic documents in legal proceedings is subject to several limitations. Firstly, the electronic document must be created in accordance with the laws of the jurisdiction in which it was made. Secondly, the document must be reliable and tamper-proof to ensure that it can be accepted as evidence in court. Overall, Section 846 of the Criminal Code of Canada demonstrates the Canadian government's recognition of technological advancements and their willingness to adapt legal processes to match the times. The use of electronic documents in legal proceedings has the potential to make the legal system more efficient and accessible while ensuring that justice is served.
COMMENTARY
Section 846 of the Criminal Code of Canada aims to modernize the justice system by allowing electronic documents to be accepted as evidence in legal proceedings. This provision recognizes the realities of the digital age and reflects Canada's evolving legal framework in keeping pace with technology. The section sets out the requirements that must be met in order for an electronic document to be admissible as evidence. These requirements speak to the authenticity of the document and the manner in which it was created and presented. To be accepted, the person making the document must state that the information contained therein is true to their knowledge and belief. Additionally, the individual before whom the document is made or sworn must be authorized to receive such documents and attest to its validity. Lastly, the electronic document must be created in accordance with the laws of the place where it was made. The use of electronic documents is a welcome development in the justice system. It increases efficiency and simplifies the process for producing and submitting evidence. Litigants can access and share electronic documents much more easily than physical ones. This can be particularly helpful in cases where witnesses are located far away and it would be difficult for them to appear in court in person. Electronic documents are also easier to store and retrieve. Traditional paper documents can take up a lot of storage space, are susceptible to loss or damage and can sometimes be difficult to locate when needed. When documents are stored electronically, they can be retrieved in seconds and in cases where documents need to be shared, the recipient can access them virtually instantly. However, there are also concerns around the use of electronic documents in the justice system. One major concern is the possibility of fraud and tampering. It is possible for electronic documents to be manipulated or doctored in a way that is not possible with physical documents. In order to mitigate these concerns, it is essential that the electronic documents are properly validated and authenticated, which typically requires additional security measures. Another potential pitfall is the possibility of technological malfunction or glitches. Electronic documents are only as reliable as the technology and infrastructure that supports them. This means that technical errors, such as power outages, internet connectivity issues or computer crashes, can lead to critical documents being unavailable precisely when they are needed. Despite these concerns, Section 846 is an important step forward for the Canadian justice system. It acknowledges the important role that technology plays in our everyday lives and reflects Canada's commitment to innovation. By embracing technology, the justice system can become more efficient and accessible, and ultimately serve Canadians more effectively.
STRATEGY
Section 846 of the Criminal Code of Canada deals with the admissibility of electronic documents as valid evidence in legal proceedings. This section provides an opportunity to organizations, law enforcement agencies, and individuals to use electronic documents as evidence and save time, resources, and money. However, there are some strategic considerations that should be taken into account when dealing with this section. Firstly, it is essential to ensure that the electronic document is valid and meets the requirements of the section. This involves ensuring that the document contains a statement that all matters contained in it are true to the best of the individual's knowledge and belief, and that it was made under oath, solemn declaration, or solemn affirmation, as required. The document must also be made in accordance with the laws of the place where it was created. Secondly, it is crucial to consider the authenticity of the document. Electronic documents can be easily manipulated or forged, and there are many tools available to create fake documents. Therefore, it is important to establish a chain of custody and ensure that the document is not tampered with in any way. This can be achieved through the use of encryption, digital signatures, and other authentication methods. Thirdly, it is important to consider the relevance and weight of the document. Not all electronic documents are relevant or admissible in court, and some may not carry much weight as evidence. Therefore, it is important to assess the value of the document and determine whether it is worth submitting as evidence. Fourthly, it is essential to ensure that the electronic document is accessible and can be easily retrieved when required. This can be achieved by keeping the document in a secure digital repository, ensuring that it is backed up regularly, and using appropriate metadata to make it searchable and retrievable. Finally, it is important to consider the potential risks of using electronic documents as evidence. This may include the risk of data breaches, cyber-attacks, and other security threats. Therefore, it is essential to implement appropriate security measures, such as access controls, firewalls, and intrusion detection systems, to ensure the integrity, confidentiality, and availability of the electronic document. To mitigate these risks, organizations and individuals can employ various strategies. For example, they can implement strict policies and procedures for creating, storing, and accessing electronic documents. They can also train their staff on how to use these documents as evidence and how to verify their authenticity. Additionally, they can use digital forensics tools and techniques to detect and prevent tampering, and establish a secure chain of custody for the document. In conclusion, Section 846 of the Criminal Code of Canada provides an opportunity to use electronic documents as evidence in legal proceedings, but it also entails some strategic considerations. Organizations, law enforcement agencies, and individuals must ensure the validity, authenticity, relevance, accessibility, and security of the document, and employ appropriate strategies to mitigate the associated risks. By doing so, they can save time, resources, and money, and enhance the efficiency and effectiveness of the legal system.