This is a big deal. The electronic signature process has been used frequently and YOU can challenge your documents if the electronic signatures and improper oath procedures were used in your case. The final court decision rested on an informant swearing the Information not being familiar with the contents, and the timing of the oath, reconfirming the importance and necessity of the OATH in all instances (think about that)….
That means you have to speak up…complain….raise the issue…will you?
Even law students can go to court with claims and complaints about a process of law and win.
You can go to court with claims and complaints and win. It has been done.
When properly presented and demonstrated…..
– – – SCBC Appeal Decision http://canlii.ca/t/gh7bh – PDF – –
On appeal from: An order of the Provincial Court of British Columbia, dated July 18, 2014 (R. v. Delalla, Surrey Registry, Docket #203329-1K).
Provincial Court Decision not available online
UPDATE Sept. 14, 2017
CASE: Alexander Jesse Delalla
Information number: 203329-1-K
Surrey Provincial Court Registry
Date of the Judgement: July 18, 2014
http://www.law.ubc.ca/news-events/ubc-law-news/court-victory-ubc-law-student
Court Victory for UBC Law student
Many law students dream of arguing a case before the courts and successfully changing the law. For one UBC Law student, this opportunity came before he had even graduated.UBC Law Upper-year student Dave Ferguson was working at the Law Students’ Legal Advice Program (LSLAP) this past summer. LSLAP is a non-profit society run by law students at UBC that provides free legal advice and representation to clients who would otherwise be unable to afford legal assistance, and gives law students invaluable opportunities to work on real cases under the supervision of practicing lawyers.
The case involved the status of electronic signatures in oaths used as evidence in court. The Criminal Code of Canada and the common law mandate a particular procedure to be followed when an Informant swears that they have reasonable grounds to believe an individual has committed a criminal offence and a Justice of the Peace attests to the Informant’s oath. This careful procedure for swearing charging documents ensures that the Crown cannot arbitrarily put individuals before a court of law.
Many court registries in BC now get Informants and Justices of the Peace to use electronic signatures in order to sign charging documents as proof that they have sworn and attested to the oath, as opposed to regular old pen-to-paper signatures. Electronic time stamps are affixed to the electronic signatures which indicate the exact moment when the signature was entered on the document.
Mr. Ferguson challenged the validity of the charging document in the case of his client on the grounds that the time stamps on the electronic signatures showed that the proper oath-swearing procedure had not been followed.
“I argued that the incorrect sequence spoke to the very proof of the oath itself, which is a fundamental safeguard in place to ensure that an individual is free from arbitrary harassment from the State,” Mr. Ferguson explains. “I stated that this defect meant that the document should be declared void.”
The trial judge at the BC Provincial Court agreed with him and said the time discrepancy went to the very essence of proof of the oath itself.
The judge also noted concerns regarding the way informations were sworn based on the evidence that came out in cross-examination.
He was arguing the case in relation to a particular client, but it turned out that this is a wide-ranging systemic defect. The effect of the case could mean that many sworn oaths under the defective process could be rendered invalid. The Crown has now appealed the decision to BC Supreme Court, however Ferguson has heard that the Crown has taken steps to ensure that the correct procedures for swearing charging documents are followed in the future. They have also re-sworn charging documents with the same defect as in this case.
Assistant Professor Mary Liston, a UBC Law faculty member who specializes in public and administrative law, says, “Dave is a smart, articulate and committed student who made a really novel and clever argument that the defect was not merely a technical issue but indeed had the legal effect of voiding the oath itself, and the judge agreed…Dave’s experience shows that even a relatively mundane file can have real justice ramifications and lead to improvements in access to justice. This underscores the importance of the legal representation and services that LSLAP provides to low-income communities in Vancouver.”
Although he was the one to take it to court, Mr. Ferguson is quick to point out that the original idea for the challenge actually came from a fellow student, Mikhael Magaril (who has since graduated). It was Mr. Magaril who originally worked on the case and suggested that there could be an important legal argument to be made in relation to the electronic signatures. Mr. Ferguson is also grateful to his supervising lawyer, Ms. Leslie Anne Wall, and his fellow LSLAP volunteer, for their ongoing support and advice.
“I think this whole experience is a testament to the value of LSLAP to students and to the public,” Mr. Ferguson said. “A creative idea from Mikhael, a lot of research, drafting and practice, and moral support and advice from Leslie Anne and other students throughout the process led to some real change to the legal system in BC. I’m very proud to have had such a great opportunity while still a student.”
UPDATE Sept 14, 2017 – do you think an oath is important?
The Provincial court decision was appealed – the Crown lost. The false oath was confirmed.
[49] What is fatal to the validity of an information, however, is where it is clear the jurat was signed by the JP before the informant makes the oath. This becomes problematic in the context of a “bulk swearing in”, as the “oath” is taken in advance of the informant viewing any of the informations on his screen and typically without having any knowledge or information about the charges. At this time, the oath is nothing more than a promise by the informant to tell the truth after he has examined the information available to him.[50]… where the informant swears his oath before examining any of the details concerning the information, or has no knowledge concerning the charge. In such a case, it is hard to accept that the oath was properly given at the time the “bulk oath” was administered, as the informant could not possibly have personal knowledge or reasonable grounds to believe the offence was committed.
[52] In this case, the parties testified that the usual practice in laying informations is for the informant to take an oath when he first enters the swearing room. The oath given is a promise to tell the truth about each information as it is presented to the informant and to the JP. At that point, however, Mr. Ellard had not seen the Information, nor had he been provided any details concerning the alleged offence. Mr. Ellard could not possibly know his oath to be true; his oath was, in reality, only a promise to tell the truth about facts unknown to him at the time he swore the oath. The oath could thus not be complete until Mr. Ellard informed himself of the circumstances of the alleged offence and acquired reasonable grounds to believe the offence had been committed – and communicated that fact to the JP. As JP Fullerton completed the jurat before Mr. Ellard reviewed any materials concerning the offence or said anything regarding the Information, she was certifying that the Information had been sworn before it had, in fact, been sworn.
[53] This was not a technical defect. As Durno J. held in EPR Services Inc., the jurat is evidence of the fact that the oath was administered. In the case at bar, the evidence before the Provincial Court revealed that the jurat was not in fact evidence that the oath had been administered. This case is distinguishable from the cases cited by the Crown, as unlike in those cases the evidence here establishes that the oath had not been made at the time of the defect.
[54] In summary, after considering the authorities cited by the parties on this appeal, I have concluded that had Mr. Ellard been properly informed of the details of the Information at the time he gave the “bulk oath”, then the order of signatures on the Information would not affect the validity of the Information. Where, as here, the informant was not informed of the details of the offence when the “bulk oath” was administered, the oath cannot be true or complete unless the informant properly informed himself of the circumstances and thereafter provided an oral confirmation of the oath. I am not satisfied that signing the information completes the oath; the signature is merely the informant’s confirmation that the information is sworn under oath. However, if it were determined that a signature could stand in the place of an oral confirmation and completing the oath – which I do not accept – then I would hold that the order of signatures does matter for the reasons given by Oulton P.C.J. and Haliburton J. in King, as the JP cannot certify the oath was administered until it has, in fact, been completed.
[55] For these reasons, I conclude that the appeal should be dismissed.
[56] The accused argued an additional ground to dismiss the appeal: that Mr. Ellard did not have reasonable grounds to believe the accused committed the offence set out in the Information.
[71] I do not accept the submission that Mr. Ellard had reasonable and probable grounds to believe the accused committed the offence outlined in the Information. He did not speak to any of the investigating officers or Crown counsel prior to swearing the Information, and candidly acknowledged that he did not have any information that could have informed him of the relevant details concerning the offence. He assumed that the Crown had drafted and approved the Information and believed this assumption was sufficient to form his belief that the offence described in the Information had been committed by the accused. It strains credulity to suggest that the informant could reasonably form the belief that the accused committed the offence independently of reviewing any information concerning the details of the offence except for the draft of the Information.
[72] I do not accept the Crown’s contention that because the Information appeared on the screen and was apparently generated by Crown counsel, the informant could rely on that fact as a basis for swearing that he had reasonable grounds to believe the offence had been committed, thus satisfying the requirements of the Code in laying an information. The organizational structure described by the Crown on this appeal, while administratively convenient, does not, in my view, meet the minimum threshold required by the Code. The laying of an information is an important state action that should not be undertaken before an informant is informed by some reliable source about the details concerning the offence alleged in the draft information. I adopt the reasoning in Kamperman in refusing to accept that an informant can be sufficiently informed of the circumstances of an offence by simply reviewing the draft of an information on a computer screen without obtaining any additional information concerning the offence. When an informant swears an information relying on nothing more than a draft information prepared by the Crown, the informant’s statement that he has “reasonable and probable grounds to believe and does believe” that the offence was committed is incorrect and amounts to a false oath.
[75] I conclude that the Information was based on a false oath and does not comply with the requirements of ss. 504, 788 or 789 of the Code. It was therefore not properly laid and is a nullity
– – – CANLii SCBC Decision on the appeal of the Provincial Court decision
– http://canlii.ca/t/gh7bh – – PDF- https://www.canlii.org/en/bc/bcsc/doc/2015/2015bcsc592/2015bcsc592.pdf
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