Regulations and Orders

Regulations

48. (1) Subject to subsection (2), the Governor in Council may, on the recommendation of the Treasury Board, make regulations prescribing technologies or processes for the purpose of the definition ``secure electronic signature'' in subsection 31(1).

Characteris-
tics

(2) The Governor in Council may prescribe a technology or process only if the Governor in Council is satisfied that it can be proved that

    (a) the electronic signature resulting from the use by a person of the technology or process is unique to the person;

    (b) the use of the technology or process by a person to incorporate, attach or associate the person's electronic signature to an electronic document is under the sole control of the person;

    (c) the technology or process can be used to identify the person using the technology or process; and

    (d) the electronic signature can be linked with an electronic document in such a way that it can be used to determine whether the electronic document has been changed since the electronic signature was incorporated in, attached to or associated with the electronic document.

Effect of amendment or repeal

(3) An amendment to or repeal of any provision of a regulation made under subsection (1) that has the effect of removing a prescribed technology or process from the regulation does not, by itself, affect the validity of any electronic signature resulting from the use of that technology or process while it was prescribed.

Amendment of schedules

49. For the purposes of sections 38 to 47, the responsible authority in respect of a provision of a federal law may, by order, amend Schedule 2 or 3 by adding or striking out a reference to that federal law or provision.

Regulations

50. (1) For the purposes of sections 41 to 47, the responsible authority in respect of a provision of a federal law may make regulations respecting the application of those sections to the provision.

Contents

(2) Without restricting the generality of subsection (1), the regulations that may be made may include rules respecting any of the following:

    (a) the technology or process that must be used to make or send an electronic document;

    (b) the format of an electronic document;

    (c) the place where an electronic document is to be made or sent;

    (d) the time and circumstances when an electronic document is to be considered to be sent or received and the place where it is considered to have been sent or received;

    (e) the technology or process to be used to make or verify an electronic signature and the manner in which it is to be used; and

    (f) any matter necessary for the purposes of the application of sections 41 to 47.

Minimum rules

(3) Without restricting the generality of subsection (1), if a provision referred to in any of sections 41 to 47 requires a person to provide another person with a document or information, the rules set out in the regulations respecting the application of that section to the provision may be that

    (a) both persons have agreed to the document or information being provided in electronic form; and

    (b) the document or information in electronic form will be under the control of the person to whom it is provided and will be readable or perceivable so as to be usable for subsequent reference.

Incorporation by reference

(4) Regulations may incorporate by reference the standards or specifications of any government, person or organization, either as they read at a fixed time or as they are amended from time to time.

Effect of striking out listed provision

51. The striking out of a reference to a federal law or provision in Schedule 2 or 3 does not affect the validity of anything done in compliance with any regulation made under section 50 that relates to that federal law or provision while it was listed in that Schedule.

PART 3

R.S., c. C-5; R.S., c. 27 (1st Supp.), c. 19 (3rd Supp.); 1992, cc. 1, 47; 1993, cc. 28, 34; 1994, c. 44; 1995, c. 28; 1997, c. 18; 1998, c. 9

AMENDMENTS TO THE CANADA EVIDENCE ACT

52. Section 19 of the Canada Evidence Act is replaced by the following:

Copies by Queen's Printer

19. Every copy of any Act of Parliament, public or private, published by the Queen's Printer, is evidence of that Act and of its contents, and every copy purporting to be published by the Queen's Printer shall be deemed to be so published , unless the contrary is shown.

53. Paragraph 20(c) of the Act is replaced by the following:

    (c) by the production of a copy of them purporting to be published by the Queen's Printer.

54. Paragraphs 21(b) and (c) of the Act are replaced by the following:

    (b) by the production of a copy of the proclamation, order, regulation or appointment, purporting to be published by the Queen's Printer;

    (c) by the production of a copy of the treaty purporting to be published by the Queen's Printer;

55. Paragraph 22(1)(b) of the Act is replaced by the following:

    (b) by the production of a copy of the proclamation, order, regulation or appointment purporting to be published by the government or Queen's Printer for the province; and

56. The Act is amended by adding the following after section 31:

Authenti-
cation of electronic documents

31.1 Any person seeking to admit an electronic document as evidence has the burden of proving its authenticity by evidence capable of supporting a finding that the electronic document is that which it is purported to be.

Application of best evidence rule - electronic documents

31.2 (1) The best evidence rule in respect of an electronic document is satisfied

    (a) on proof of the integrity of the electronic documents system by or in which the electronic document was recorded or stored; or

    (b) if an evidentiary presumption established under section 31.4 applies.

Printouts

(2) Despite subsection (1), an electronic document in the form of a printout satisfies the best evidence rule if the printout has been manifestly or consistently acted on, relied on or used as a record of the information recorded or stored in the printout.

Presumption of integrity

31.3 For the purposes of subsection 31.2(1), in the absence of evidence to the contrary, the integrity of an electronic documents system by or in which an electronic document is recorded or stored is proven

    (a) by evidence that supports a finding that at all material times the computer system or other similar device used by the electronic documents system was operating properly or, if it was not, the fact of its not operating properly did not affect the integrity of the electronic document and there are no other reasonable grounds to doubt the integrity of the electronic documents system;

    (b) if it is established that the electronic document was recorded or stored by a party who is adverse in interest to the party seeking to introduce it; or

    (c) if it is established that the electronic document was recorded or stored in the usual and ordinary course of business by a person who is not a party and who did not record or store it under the control of the party seeking to introduce it.

Presumptions regarding secure electronic signatures

31.4 The Governor in Council may make regulations establishing evidentiary presumptions in relation to electronic documents signed with secure electronic signatures, including regulations respecting

    (a) the association of secure electronic signatures with persons;

    (b) the integrity of information contained in electronic documents signed with secure electronic signatures; and

    (c) the manner in which the matters referred to in paragraphs (a) and (b) may be proved.

Standards may be considered

31.5 For the purpose of determining under any rule of law whether an electronic document is admissible, evidence may be presented in respect of any standard, procedure, usage or practice concerning the manner in which electronic documents are to be recorded or stored, having regard to the type of business, enterprise or endeavour that used, recorded or stored the electronic document and the nature and purpose of the electronic document.

Proof by affidavit

31.6 (1) The matters referred to in subsection 31.2(2) and sections 31.3 and 31.5 may be established by affidavit.

Cross-examin ation

(2) A party may cross-examine a deponent of an affidavit referred to in subsection (1) that has been introduced in evidence

    (a) as of right, if the deponent is an adverse party or is under the control of an adverse party; and

    (b) with leave of the court, in the case of any other deponent.

Application

31.7 Sections 31.1 to 31.5 do not affect any rule of law relating to the admissibility of documents, except the rules relating to authentication and best evidence.

Definitions

31.8 The definitions in this section apply in sections 31.1 to 31.6.

``computer system''
« système informati-
que »

``computer system'' means a device that, or a group of interconnected or related devices one or more of which,

      (a) contains computer programs or other data; and

      (b) pursuant to computer programs, performs logic and control, and may perform any other function.

``data''
« données »

``data'' means representations of information or of concepts, in any form.

``electronic document ''
« document électroni-
que »

``electronic document'' means data that is recorded or stored on any medium in or by a computer system or other similar device and that can be read or perceived by a person or a computer system or other similar device. It includes a display, printout or other output of that data.

``electronic documents system''
« système d'archivage électroni-
que »

``electronic documents system'' includes a computer system or other similar device by or in which data is recorded or stored and any procedures related to the recording or storage of electronic documents.

``secure electronic signature''
« signature électronique sécurisée »

``secure electronic signature'' means a secure electronic signature as defined in subsection 31(1) of the Personal Information Protection and Electronic Documents Act.

57. Subsection 32(2) of the Act is replaced by the following:

Copies published in Canada Gazette

(2) All copies of official and other notices, advertisements and documents published in the Canada Gazette are admissible in evidence as proof, in the absence of evidence to the contrary, of the originals and of their contents.

PART 4

R.S., c. S-22; R.S., c. 31 (1st Supp.), cc. 31, 51 (4th Supp.); 1993, cc. 28, 34

AMENDMENTS TO THE STATUTORY INSTRUMENTS ACT

58. Section 10 of the Statutory Instruments Act is renumbered as subsection 10(1) and is amended by adding the following:

Publication

(2) The Governor in Council may determine the form and manner in which the Canada Gazette, or any part of it, is published, including publication by electronic means.

59. Subsection 16(3) of the Act is replaced by the following:

Deemed publication in Canada Gazette

(3) For the purposes of this section,

    (a) if a regulation is included in a copy of the Consolidated Regulations of Canada, 1978 purporting to be printed by the Queen's Printer, that regulation is deemed to have been published in the Canada Gazette; and

    (b) if a regulation is included in a copy of a revision of regulations purporting to be printed by the Queen's Printer, that regulation is deemed to have been published in the Canada Gazette.