John D. Gregory

Counsel, Policy Division

Ministry of the Attorney General (Ontario)

[(1995) 6 Journal of Motor Vehicle Law 277]

In this article, the author examines the concept of electronic documents as envisioned by recent amendments to the Provincial Offences Act of Ontario which authorized the introduction of photoradar to Ontario. The author posits that while electronic documents are different in concept from paper documents, they are not different in intelligible content. The principles of "electronic documents", "electronic data interchange" and "electronic signature" are reviewed.

Dans cet article, l'auteur examine le concept sous-jacent aux documents électroniques tel qu'envisagé par les récentes modifications apportées au Provincial Offences Act de l'Ontario qui on permit l'introduction du photoradar en Ontario. L'auteur prétend que bien que les documents soient conceptuellement différentes des documents sur papier, ils ne sont pas différents en termes de contenu intelligible. Les notions de 'documents électroniques', 'd'échange de données informatisées' et de 'signature électronique' y sont revisées.

The Provincial Offences Statute Law Amendment Act, 1993,[1] known familiarly as Bill 47, contains two sections that permit the creation and use of electronic documents. This article describes how those sections are intended to work in practice and in law. To that end, it discusses in some detail the nature of electronic documents, with specific reference to the principles of electronic data interchange (EDI). This background is necessary to appreciate what is being done with the authority provided in Bill 47.

[278] ELECTRONIC DOCUMENTS

At a very basic level, electronic documents are those which consist of a series of instructions to turn an electric switch on or off. A switch is either on or off. This on-or-off, yes-or-no instruction is known as a "binary" code. The code can be read or stored by devices that act through accepting the electric currents in the prescribed pattern. These devices are of course usually computers, but they may also be telephones (not all of which are electronic), fax machines, memory typewriters, and other more or less familiar equipment.

Combinations of binary instructions create all computer language and all computer memory. No information or data exists in a computer except in such codes.

A document to a computer is just another assemblage of electronic codes. It is not different in kind from instructions to compute numbers or to activate machinery.

What makes a document a document is what the user intends. A number of intentions are possible with respect to a collection of binary codes that a user might want to consider as a document. For example, a person might want to create a document, or to store it, or to send it to someone else. He or she might want to receive a document from someone and to keep it, change it, or send it on.

The user inserts the proper codes to ensure these results. When a document is to be sent to another computer, that computer must be instructed to accept the binary codes in the form they are sent and to do with them what the user intends.

In other words, every computer that is intended to contain a particular document must be instructed, or programmed, to understand the code in the appropriate way.

It is important to appreciate just how different this is from a traditional paper document. A paper document exists in itself, in a fixed physical form. The information in it is in a fixed physical format. One user can pass it on to another user without any need for the recipient to make special efforts to recognize it.

A computer is nothing like this. A computer knows no "natural" form of information except binary codes.

This discussion of computer basics is relevant to an understanding of electronic documents because some people may be [279] tempted to think that words on a computer screen are more "natural" than other forms of computer operation, or "really" more like a traditional document. To put it another way, some people may be inclined to think that a word-processed document in a computer is more like a paper document than some other form of binary codes.

This is not true and it is not helpful. The key to evaluating computer codes, including codes purporting to be documents, is whether the intention of the users is satisfied by the codes. The form of the code is not relevant.

This point will be important when we discuss the electronic documents to be created under Bill 47.

ELECTRONIC DATA INTERCHANGE (EDI)

Electronic data interchange means the computer-to-computer transmission of data in a standard format. EDI is used increasingly by business and government to carry on certain kinds of transactions.

The essence of EDI is "in a standard format". Users agree that the same formats will mean the same things. The most common North American standard provides that all purchase orders are in format 850, and all invoices in format 810. (European users have their own standards.) The format is a set sequence of electronic instructions (codes) that frame and contain the information needed for the particular transaction.

Because of the standardization, it is not necessary to repeat with each order all the standard text that might be on a printed version of the same document. Once the receiving computer recognizes by the code that the message coming in is an invoice, it can surround the information with the appropriate context to make the message intelligible.

What "intelligible" means depends on the intention of the user. It may be that an electronic invoice is transferred electronically to a payment program, which would check it against a goods received list and then generate an electronic order to a bank to transfer funds to the bank of the originator of the invoice. On the other hand, the electronic invoice may need verification by staff, so it may have to be shown on a computer screen to a human operator. What is needed for intelligibility varies according to use. [280]

Electronic documents may be created and transmitted in other contexts than EDI. The most common example of a non-EDI context is electronic mail. That is a free form context. Users can put any text they like into an E-mail message, in any order. E-mail is generally in word text, though it may be encrypted. It can often be amended and forwarded or returned by the recipient. Fax transmissions are another non-EDI form of electronic documents. Imaging is another, where the full form of a paper document is captured electronically.

This is important for Bill 47 because, in essence, the electronic documents contemplated in that statute are EDI documents. They are standard formats used for standard purposes. The use of short-form codes and the standards of intelligibility for different purposes are both very relevant in designing a system for these documents.

This has implications as well for the predictability and the security of the documents to be created under the statute. The standard formats, i.e., the standard codes attached to electronic messages, do not vary. Only the contents of the forms change. There is no scope for tampering that will leave an intelligible document when it is received, except in defined "fields", i.e., the blanks that would be filled in on a paper document. If the information in these fields is secure, then the whole document is secure.

We will return to this discussion when we consider the proposed documents under Bill 47.

ELECTRONIC SIGNATURE

In a world of binary codes, there is little place for a signature of the kind we recognize on paper. (Devices do exist that can transform handwriting into electronic code and retransform it, but they are not in the mainstream of electronic documents and are not used at all in EDI. They play no part in the Bill 47 world either.)

It is widely recognized that the law must consider the functions performed by a signature on paper and see how those functions can be carried out by electronic codes.

It is also widely recognized that the two principal functions of a signature are authentication and consent. "I did it, and I agree [281] with it." In the words of the draft United Nations Model Law on Legal Aspects of EDI (Article 6(1)),

Where rule of law requires a signature, ... that rule shall be satisfied in relation to a data record if, (b) a method is used to identify the originator of the data message and to indicate the originator's approval of the information contained therein.[2]

The Civil Code of Quebec now provides, in Article 2827:

A signature consists of a person's placing on a document his name or a mark personal to him and that he commonly uses, to show his consent. [my translation][3]

An electronic signature is an electronic code that performs these functions. In order for the recipient to trust the authenticity, however, he or she must accept that the code does come from the person it purports to identify. In other words, the system must be secure.

However, different systems demand different degrees of security. Just as the requirements for written signatures vary in their demands (plain writing, presence of witnesses, affidavit of execution, notarization), so too will electronic signatures require different standards of security.

These standards will vary according to the importance of the message, the opportunity for impropriety, the motives for impropriety, and the physical security of the system that generates the signature. There is no fixable common practice. This is recognized in the United Nations Draft Model Law:

(b) that method is as reliable as was appropriate for the purpose for which the data message was generated or communicated, in the light of all circumstances.[4]

The regulations on electronic documents for the purposes of Bill 47 have taken these factors into account. See O.Reg.497/94 for electronic documents under the Provincial Offences Act and O.Reg.499/94 for electronic documents under the Highway Traffic Act.[5]

[282] BILL 47 PROVISIONS

Section 1(27) of Bill 47 creates section 76.1 of the Provincial Offences Act,[6] which reads as follows:

(1) A document may be completed and signed by electronic means in an electronic format and may be filed by direct electronic transmission if the completion, signature and filing are in accordance with the regulations.

(2) A printed copy of a document filed under subsection (1) shall be deemed to have been filed as the original document if it is printed in accordance with the regulations and for the purpose of disposing of a charge under this Act.

(3) In this section, "document" includes a certificate of offence, certificate of parking infraction, a certificate requesting a conviction, an offence notice and a parking infraction notice.

(4) The Lieutenant Governor in Council may make regulations respecting: 

(a) the completion and signing of documents by electronic means;

(b) the filing of documents by direct electronic transmission;

(c) the printing of documents filed by direct electronic transmission.

Section 2(12) of Bill 47 creates subsections 210 (10) and (11) of the Highway Traffic Act,[7] which reads as follows (in part):

(10) A statement may be made by electronic means in an electronic format if the making is in accordance with the regulations.

(11) A copy or statement may be certified by the Registrar [of Motor Vehicles] under the seal of the Ministry [of Transportation] by electronic means in an electronic format ... if the certification, sealing ... are in accordance with the regulations.

Bill 47 allows for the electronic creation and filing of a number of documents. It allows for electronic documents to be used under Part I and Part II of the Provincial Offences Act. Evidence of vehicle ownership will be relevant under both Parts, and it may be created electronically as well.

As a result of these provisions, regulations have been made under both Acts to set out how these documents are to be completed, signed and filed. They give an idea of the legal support to be provided for electronic documents.

The rest of this article addresses the use of electronic documents under Bill 47 only with respect to photoradar prosecutions.

[283] ELECTRONIC DOCUMENTS UNDER THE POA

This is not the place to describe in detail the operation of the photoradar prosecution system. It will suffice here to remind the reader that four separate signed texts will be created electronically under the Provincial Offences Act:

1. A certified statement of the operator of the photoradar equipment, stating that it was in working order and that it took pictures including that of the defendant's vehicle (and stating the speed limit at the location of its operation).

2. A certified statement of the charging officer that he or she had reasonable belief that the defendant is liable under the Act. (These two statements make up the certificate of offence.)

3. An offence notice to be mailed to the defendant.

A certificate of service of the offence notice.

A separate certificate of ownership of the offending vehicle will be created under the Highway Traffic Act. It will be described in the next section of this article.

Certified Statement of the Operator

Photoradar prosecutions depend on direct evidence from two sources: the operator of the equipment and the officer who lays the charges. The operator provides evidence that the equipment was working properly, that it took pictures at a particular location at a particular time, and that the speed limit at that place was whatever it was. The charging officer provides evidence that a particular picture taken with the photoradar machine showed the defendant's vehicle travelling at a given speed that exceeded the legal limit. (Details of the picture shown on it and in the operator's certificate link the two pieces of evidence.)

The operator's certificate is a series of codes entered into a memory bank carried on a magnetic storage card inside the photoradar equipment. The codes consist of a test picture at the start and at the finish of a session at a particular location. In addition, the operator enters his or her personal identification code shown on a manually-generated photo. The operator overwrites the personal identification with a location code taken from a directory [284] compiled by the Ministry of Transportation to designate particular sites on all the province's highways. This location code appears on all the photos taken of speeding vehicles, as well as on the operator's certificate. At the end of the session, the operator overwrites the personal identifier on the location code and manually takes another picture. The equipment contains an internal clock that shows the date of the session and the start and stop times.

This completes and signs a certificate. The sequence of codes involved in overwriting the location code with the personal identifier is not needed to shut down the equipment. It is needed only to serve as a code to tell the receiving computer that this assembly of information is to be taken as a certificate. Entering the personal information by way of a photo serves as a code to authenticate and adopt the information in it, i.e., as the operator's signature. It should be noted that all the information in the certificate is known personally to the operator at the time he or she enters these codes. The operators are trained to know that the codes are entered only if they have the intention that the codes should serve to complete and sign the certificate.

(A parallel instruction would be that signing a piece of paper should be done only if the operator intends to stand behind the information shown on it. Little "training" is needed for this instruction in the case of paper, because signing paper is second nature to all of us. More training is needed when someone is being instructed about the effect of entering a series of electronic codes into an electronic memory. The intellectual process is the same.)

A technical footnote: while the operator knows the speed limit at the site of operation, this information is entered implicitly through the location code. The photoradar computer system takes the location code not only as instruction to describe the physical location but also to insert the speed limit that attaches to that location. The police have instructed the photoradar programmers to insert the appropriate values.

In short, the operator's certificate is what might be described as a "passive" set of codes, entered into a memory to be read by the properly programmed photoradar computer at photoradar headquarters, in the same way a word processor reads the electronic codes on a diskette and recognizes a text. The certificate meets all the criteria for electronic documents and signatures set [285] out earlier: a set of codes intended to be intelligible in a certain way and readable by devices that communicate that intention effectively.

Compare the language of sections 1 and 2 of O.Reg.497/94, under the Provincial Offences Act:

1. A document is properly completed in an electronic format if the information provided:

a) is intelligible in a form prescribed under the Act when that information is used for any purpose under the Act;

b) cannot be altered once it has been signed electronically, except for the elaboration of coded information ...

2.(1) A document is properly signed in an electronic format if the document contains a code, name or number of a person that is capable of designating the person as the originator of the document and the code, name or number

(a) is generated by electronic means at the same time as the document is signed or on completion of the document; and

(b) is reasonably secure against unauthorized use.

Certified Statement of Provincial Offences Officer

The charging officer sees an electronically generated equivalent of the photograph of the defendant's car. On that photo the equipment has reproduced certain data: the location and speed limit, the speed of the vehicle, the date and time of the photo, the photoradar unit that took the picture, the roll number of the film and the frame number of that roll. The officer also has information that has been certified by the Ministry of Transportation on who holds the licence plate shown on the photo. From this information, the officer may form a reasonable belief that the defendant is liable for a speeding offence under Bill 47.

All of the material information is before the charging officer when the charge is laid. He or she completes the certificate laying the charge by entering a personal number that identifies him or her, such as his or her badge number. The computer recognizes the badge number as associated with the person who has signed on to the computer by a secret password. With this security, the badge number authenticates the document. The process of entering the number adopts the content and instructs the photoradar computer to generate a complete and signed certificate of offence.

[Technically the certificate of offence is made up of a combination of the two certified statements described so far. It will also carry the certificate of ownership and the certificate of service.] [286]

In short, the officer turns his or her mind to all the relevant information and by entering the number, sends a code to the machine to constitute the information as a certificate signed by the officer. The photoradar computer is programmed to read this set of codes as the certificate and does so.

Compare the above sections of the regulation.

Offence Notice

The same data entry process that completes and signs the certificate laying the charge also completes and signs the offence notice for the defendant. The photoradar computer is programmed to include the relevant information in the appropriate form. An electronic equivalent to the photo is also included in the offence notice, and a blowup of the licence plate shown in the photo.

In the world of paper, the manual signature of the provincial offences officer adheres at the same time to the certificate of offence and the offence notice, since one writing shows on two pieces of paper. In the electronic system, a single entry of the authentication code completes and signs the same two certificates, and the certificate of service, as discussed below.

The legal nature of the process for the offence notice is identical to that of the certificate laying the charge. No separate regulatory reference is needed for it.

Certificate of Service

After generating the certificate of offence and the offence notice, the officer enters a separate command, generally with a single button. This command instructs the photoradar computer to send that electronic information to the defendant by mail. The Ministry of the Solicitor General and Correctional Services has contracted with Canada Post to receive the information by electronic transmission (initially on tape) and to print and mail the notices. Because of the linkages of electronic transmissions, the command to send the information to Canada Post has the effect of mailing it. Section 205.5 of the Highway Traffic Act provides that service by mail may be certified where the officer mails it or causes it to be mailed. The photoradar computer contains the codes that have that effect, and those codes are activated by the electronic command of the officer to send the offence notice. As a result, the command code also authorizes the computer to com-[287]plete the certificate of service and serves as signature to that as well.

While these three certificates are distinct, they are performed electronically in the same sequence as they would be on paper.

In short, by entering the personal identifying number into the computer, the officer sends codes intended to be intelligible to the photoradar computer as constituting the certificate of offence, the offence notice, the instructions to cause the notice to be mailed, and the certificate of service. The computer is also programmed to combine the certified statement of the provincial offences officer, the operator's certified statement, and the certificate of service, along with the certificate of ownership from the Ministry of Transportation, into a single document for the purpose of filing it with the court. Filing will be described separately below.

To sum up the Provincial Offences Act electronic documents, they are all a matter of creating electronic codes that are intelligible in fixed standard formats by the computers that read them. There is a clear intention on the part of the originators of the codes that the codes should be understood in these formats. All the variable information carried with these codes is within the personal knowledge of the signers just as much as if they were signing paper documents.

All the documents therefore comply with the sense of the regulation and of the Act itself.

ELECTRONIC DOCUMENTS UNDER THE HIGHWAY TRAFFIC ACT

Bill 47 makes the owner of the speeding vehicle liable for the offence. As a result, the ownership of the vehicle must be proved. The Act creates section 205.14 of the Highway Traffic Act, which authorizes a regulation to state what would constitute evidence of ownership.

The effect of Bill 47's Highway Traffic Act provisions on photoradar prosecutions is beyond the scope of this article. The prosecutions themselves are conducted under the Provincial Offences Act. The Highway Traffic Act provides some procedural rules where they differ from the general practice under the Provincial Offences Act, but these do not displace most of the Provincial Offences Act.

[288] Subsection 210(7) of the Highway Traffic Act, a provision that antedates Bill 47, provides that ownership of a vehicle may be proved by a certificate of the Registrar of Motor Vehicles, and that that statement may be admitted as evidence if it purports to be certified by the Registrar, in the absence of proof to the contrary.

Subsections 210 (10) and (11) authorizes the creation of electronic statements and the means to certify and seal them electronically. Such certified statements are prescribed as sufficient evidence of ownership for this purpose.[8] The electronic documents regulation under the Highway Traffic Act describes an electronic seal (a code for an asterisk).[9]

The photoradar computer will ask the Ministry of Transportation's computer for ownership information on specified plate numbers as of the date shown on the photo. The Ministry of Transportation will reply by way of a list matching owners to plates as of the specified date. The computer code surrounding this list will certify the entire list, just as an EDI business header might identify a list of items as all invoices or purchase orders. In other words, the photoradar computer will be instructed by the Ministry code to read each match of owner and plate as subject to the certificate of the Registrar. The photoradar computer will be programmed to read the code accordingly.

The certified information appears on the charging officer's computer screen and permits the laying of a charge. When that officer signs the charge, as described above, the certified information on ownership accompanies the electronic document assembled for transmission to court. The codes instruct first the photoradar computer and then the court office computer (ICON) to read the ownership information as a certificate of the Registrar, signed by the Registrar in the prescribed way. The signature of the Registrar and the date of the Registrar's certificate will be indicated to ICON by separate codes. Each document will purport to be signed by the Registrar and will be admissible to show ownership.

[289] ELECTRONIC FILING

At this point we have an assembly of electronic documents in the photoradar computer: a certificate of offence (two included certificates), a certificate of service and a certificate of ownership. All are in the form of electronic codes framed to be intelligible in a particular format.

The photoradar computer sends the assembly of codes/documents first to the Ministry of the Solicitor General's Central Offences Data Base (CODB), where they are edited to reject documents with inconsistencies and to detect missing information. Documents that are complete are transmitted electronically from the photoradar computer to the Integrated Court Offences Network (ICON) run by the Ministry of the Attorney General. All offence information is entered into ICON now, whether manually from paper certificates or electronically.

The transmission itself is a series of electronic instructions or codes. The codes tell ICON to receive information in standard formats, as with any EDI message. (For the moment, there is only one format, the certificate of offence.) ICON checks the codes and the information to ensure that they are intelligible to it in these standard formats. If not, it rejects the instruction. If they are intelligible, it applies a filing date and confirms to the photoradar computer that the documents have been filed.[10] (The date of filing will be the date of the end of a batch transmission. In other words, if a batch of documents are received between 11 p.m. and 2 a.m., they would all be given the later date.)[11]

ICON is programmed to understand the codes as constituting standard court forms as prescribed by law. Any person who wants to look at an electronic document on an ICON computer screen will find the prescribed language for that form. Anyone who has a printout of the electronic document will get on paper the language of the prescribed form.

ICON will also explain some of the codes to provide more detail. In particular, the signature of the operator and the officer will be derived from the codes and will appear in the court certificate as the name of the person, not just a number code. The loca-[290]tion of the offence will also be described in words, not just numbers. This information is not "added"; it is inherent in the codes. ICON will apply a table of concordance to the codes to do this.[12]

In short, the electronic codes give effect to the intention of the originator of the document, which is that they should be intelligible to any user as prescribed forms for the prosecution of provincial offences.

Compare section 3(1)of O.Reg. 497/04:

3.(1) A document is properly filed by direct electronic transmission if it is transmitted by electronic means to the Integrated Courts Offences Network of the Ministry of the Attorney General in such a way that,

a) the information in the document is received completely and accurately by the court office computer,

b) the information is intelligible in a form prescribed under the Act or any other Act;

c) the document is transmitted from the originating computer to the court office computer without alteration, except for codes necessary to ensure accurate transmission; and

d) the court office computer transmits an acknowledgement of receipt to the originating computer confirming receipt of an intelligible document and the date of filing of the document.

ICON is also programmed to ensure the security of the electronic documents once they are received. No alteration may be made to them from the time of their receipt until the time the first use is made of them, probably at a first attendance meeting.[13]

ELECTRONIC DOCUMENTS AND THE PROVINCIAL OFFENCES RULES

Most of the legal status of electronic documents is governed by the Acts and the regulations: how they are completed and signed and transmitted to the court. In general, the Provincial Offences Rules[14] apply only once documents have got to court. Even there, the Act authorizes a regulation dealing with printing a document to dispose of a charge. See section 4 of the regulation:

(1) A document filed by direct electronic transmission may be printed by [291] any means that produces the document on paper in the format of the appropriate form prescribed under the Act.

(2) A document filed by direct electronic transmission may be printed as an original document for the purpose of disposing of a charge under the Act only with the approval of the clerk of the court, a justice or a judge.[15]

However, there are a few points where the Rules have been amended. See O.Reg.498/94, made under the Courts of Justice Act by the Criminal Rules Committee.

1. Filing dates needed some assistance. Electronic documents, whether filed by direct transmission or by tape, cannot be "endorsed" with the filing date. New rule 12(2) requires that the filing date be noted on each document.

Documents may be received by direct transmission when no one is there to ensure they are being filed on time. New rule 11(2) states that direct filing must meet the usual limits, to create the basis for later rejection if they turn out not to be timely.

Documents may be received in batches by direct transmission. New rule 12(3) reflects O.Reg. 497/04, s. 3(3), in deeming all parts of a batch transmission to have been filed at the end of transmission.

2. Adjudicating on the basis of an electronic document: Since electronic documents are clearly intelligible in ICON as familiar prescribed forms, some justices may wish to examine the documents and dispose of them directly by computer, especially fail-to-respond proceedings. New rule 22.1 sets out that a justice may indicate electronically whether he or she wishes to enter a conviction or to quash the proceeding. Electronic documents are not expected to be used for trials for several months.

3. Use of electronic documents on appeal: An appeal is part of "disposing of a charge" under the Provincial Offences Act. Therefore an electronic document printed for this purpose may be treated as an original. Subsection 4(3) of O.Reg. 497/04 [292] provides that the document shall be printed for the appeal record, where the document has not been printed before the appeal, unless the appeal court requests that any such electronic document be transmitted electronically. This is reflected in new rule 28(1.1) as well.

In addition, some of the existing rules did not work well with electronic documents. For example, the Committee made an amendment to rule 9, in 9(7), so a control list will not be needed for electronic documents. New rule 21 allows justices of the peace to keep their dockets electronically. This does not require them to keep any dockets they do not now keep, it just adds an optional form.

CONCLUSION

While electronic documents are different in concept from paper documents, they are not different in intelligible content. The legal concepts underlying their use in the courts are familiar in modern commerce. They can allow some of the efficiencies of business practices to find their way into the administration of justice without affecting the traditional and essential values of the courts.

[1]S.O. 1993 c.31

[2]U.N. Document A/CN.9/406, 17 November 1994.

[3]S.Q. 1991, c.64.

[4]Above, note 2, art. 6(1)(b).

[5]Ontario Gazette, August 6, 1994.

[6]R.S.O. 1990, c. P.33

[7]R.S.O 1990, c. H.8

[8]O.Reg.500/94, s.3

[9]s.6(2) of O.Reg. 499/94.

[10]O.Reg. 497/04, s. 3(2), made under the Provincial Offences Act.

[11]Ibid., s. 3(3),

[12]Ibid., ss. 1(b), 5(3).

[13]Ibid., s. 5.

[14]R.R.O. 1990 c.200.

[15]O.Reg. 497/04.