The Law of Evidence in the Digital Environment: Finding Solutions to Present and Future Challenges is a 3-year collaboration between the Faculty of Law and the School of Library, Archival and Information Studies (SLAIS) at the University of British Columbia. supported by a Social Sciences and Humanities Research Council of Canada (SSHRC) Insight Grant.
Legal professionals and scholars recognize that the laws we are applying to the rapidly growing digital reality developed over centuries for a paper-based business environment. The assumptions we make about paper records often do not apply to digital records, and judges and lawyers are not trained in information technology. Despite digital advances, the judicial process still relies heavily on print increasing costs and reducing efficiency. Procedural changes have not addressed this problem so far with the result that Canadians are denied access to justice due to the excessive cost of court proceedings. Further, law reform takes time, and case law develops slowly. The lack of empirical research into the nature of digital evidence offered at trial has led to inconsistency and misunderstanding among lawyers, judges, plaintiffs, prosecutors, and defendants. The challenges affect Canada and all common law jurisdictions. The dearth of academic literature, the inconsistency of legal opinions, and the sensationalism of media stories that fuel uncertainty and fear of digital technology all support the urgency of this research.
This research focuses on the ability of rules governing admissibility of evidence to deal with challenges presented by digital information. Its objectives are:
- to develop criteria and methods for a) establishing the accuracy and authenticity of digital documents; b) determining when digital entities fall under the business records exception to the hearsay rule; and c) identifying the most authoritative and trustworthy manifestation of a digital record in the absence of an original, for the purpose of articulating a new rule able to fulfill the function of the best evidence rule;
- to develop procedures for documenting the chain of continuity for digital documentary evidence from the moment it is identified to the moment it is admitted as evidence;
- to develop guidelines for maintaining the authenticity of digital documentary evidence over the long term, irrespective of technological obsolescence; and
- to propose new and revised rules for the law of evidence with enough flexibility to accommodate future changes in digital technology and its products.
This is a qualitative research project that assumes an inductive relationship between legal, archival, and diplomatic theory, and research findings. Research data will result from a close analysis of relevant case law, and from the use of a combination of survey and interview protocols directed to legal professionals and the judiciary. Canadian case law will be examined in detail; however, as the quantity of available case law is small, data from American and foreign case law will provide a base from which to interpret the Canadian data. Data collection will focus on issues of admissibility of digital evidence, and on how the existing rules can be changed or adapted to eliminate current ambiguity and confusion. Employing a cross-sectional research design, the methods and measures will support the "interpretivist paradigm," which emphasizes the participants' constructions of their experience of the influence of legislation on the admissibility of documentary evidence in electronic form. Members of the judiciary at all levels of federal and provincial courts, and lawyers contacted through provincial law societies will be asked to complete an on-line questionnaire, and to self-select for follow-up structured interviews.
This project will make an important contribution to legal proceedings that include or rely on digital evidence. It will offer judges and lawyers a systematic framework for interpreting digital evidence, and develop new and enhanced curricula to educate legal and records professionals. The project is uniquely situated to succeed because of the interdisciplinary nature of the research design that combines the expertise of legal scholars and archival theorists. It provides an unparalleled opportunity to train future researchers in the methods of collaborative research. The outcomes will inform academic and non-academic audiences, benefit law enforcement, legal, and information professions and the judiciary, and have the potential to fuel significant legal reform.