Opinion: The Remote Witnessing and Commissioning Act and Access to Justice in Northern Manitoba

By Calvin Ediger

On December 3rd, 2020, royal assent was given to The Remote Witnessing and Commissioning Act which amended several acts, including The Manitoba Evidence Act, to allow the electronic witnessing of documents including affidavits. Previously affiants (those making the affidavit) were required to be physically present with the individual authorized to administer the oath and witness the signature. The Manitoba Evidence Act authorizes several individuals to act as administrator and witness; however, it is noted that “citizens normally take affidavits before commissioners for oaths, notary publics and lawyers.”[1]

Health concerns due to the Covid-19 pandemic made the physical presence requirement potentially hazardous, prompting the temporary suspension of in-person commission and witnessing under The Emergency Measures Act.[2] The Remote Witnessing and Commissioning Act has made electronic witnessing a permanent change.

The physical presence requirement also had an undue impact upon individuals living in Northern Manitoban communities, who face “delayed and unreliable postal services, slow or non-existent internet services, and an inability to locate an authorized individual to take affidavit evidence [which] slows the administration of justice to a crawl.”[3] Readers of the blog may be reminded of the challenges facing the criminal justice system in northern Manitoba, in which delays in bail hearings created further legal problems.

For example, during consultations for its report on remote witnessing, the Manitoba Law Reform Commission “was provided with the example of child custody matters where delays could trigger the involvement of child protection agencies.”[4] This provides yet another example of how a scarcity of judicial resources creates a positive feedback loop, exacerbating demand on an already overburdened system.

The Manitoba Law Reform Commission reports to have been looking into remote witnessing since 2017, when the impetus for change lay with increasing access for northern Manitobans.[5] The realities of the Covid-19 pandemic prompted the legislative change, updating the law to match the capabilities of modern technology.

Viewed another way the issues with access that northern communities experienced, which remote witnessing could help alleviate, were not deemed pressing enough to warrant an update to legislation by legislators. Rather it took a global pandemic which interfered with the affairs of southern city dwellers to create the impetus for change, with the side benefit of also assisting access to justice for northern residents.

Unfortunately, the benefits of remote witnessing may be hampered due to “high rates of poverty in some remote and northern communities and the fact that a large portion of community members do not own computers or smart phones pose challenges to those who would benefit from the proposed legislative change but for these additional impediments.”[6]

[1] Manitoba Law Reform Commission, Report, “Electronic Witnessing of Affidavit Evidence: Final Report” (2020) at page 5

[2] Ibid, at page 2.

[3] Ibid, at page 14.

[4] Ibid, at page 14.

[5] Ibid, at page 2.

[6] Ibid, at pages 14-15.

The views and opinions expressed in the blogs are the views of their authors, and do not represent the views of the Faculty of Law, or the University of Manitoba. Academic Members of the University of Manitoba are entitled to academic freedom in the context of a respectful working and learning environment.

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