You will not receive a reply. In new reversal, court rules witness signatures not required for SC mail-in ballots Macon Atkinson, Greenville News 9/29/2020. section 5 of the SES Regulations includes a presumption that, in the absence of evidence to the contrary, the electronic data has been signed by the person who is identified in the digital signature certificate or who can be identified through that certificate. Lexpert Canada's Leading Lawyers, Special Edition: Litigation 2020 March 31, 2014 DOWNLOAD PDF. Appendix A lists a number of these sources and their associated definitions. A number of jurisdictions, including the GC and Canada’s provinces and territories, have developed laws, policies and standards for electronic documents and electronic signatures (e-signatures) since the mid-1990s. When witnessing a signature, you must: ensure the person signs the document in front of you. Other digital signature algorithms such as the Elliptic Curve Digital Signature Algorithm (ECDSA) are also valid but have different mathematical properties that do not precisely conform to the description from the SES Regulations. In the context of the federal government, a signature may be required to: In some cases, the ability to support e-signatures from more than one individual is required. Please feel free to contact us at 416-451-5553 or by email at info@notary-toronto.ca if you have any questions. Table B1 summarizes acceptable token types at each assurance level. These documents would generally be for use in Canada, but a foreign government may also require a Canadian citizen to make a declaration at the High Commission. However, depending on the nature of the note and the governing law of the jurisdiction in which you're entering into the note, you may be required to have witnesses or a notary public witness the Promissory Note. All the supporting information, regardless of where or how it is stored, is collectively referred to as the transaction record. We trust this is of assistance. Another possible solution is to adopt standards that are specifically designed to address LTV issues, such as PDF/A-2. Sources from non-Canadian jurisdictions are included in order to: Canadian federal acts and regulations that address e-signatures include: In addition, there are over 20 federal acts and almost 30 regulations listed on the Department of Justice Canada website that include references to “electronic signature.”Footnote 10, Most Canadian provincial and territorial jurisdictions have enacted electronic commerce and transaction laws that provide electronic equivalents to paper-based signatures, along with other requirements, by adopting the principles established in the Uniform Law Conference of Canada’s model law (the Uniform Electronic Commerce Act (UECA)).Footnote 11 The UECA is technology-neutral and defines an “electronic signature” as electronic information that a person creates or adopts in order to sign a record and that is attached to, or associated with, the record. Note that assurance levels should not be confused with levels of authority. For additional guidance, you may want to refer to the Canadian General Standard Board’s standard entitled Electronic Records as Documentary Evidence which provides information and guidance for developing policies, procedures, processes and documentation that support the reliability, accuracy and authenticity of electronic records. The definitions provided in Table A1 lead to these observations: It should also be noted that the description provided in the SES Regulations is so granular that it actually prescribes a specific digital signature algorithm.Footnote 13 Whether this was intentional (to promote interoperability) or not (it was assumed at the time that all digital signature algorithms have the same mathematical properties) is unclear. As noted previously, associating individuals with a signed electronic record is one of the fundamental requirements for an e-signature, and therefore the assurance level of the authentication process and the e-signature are closely coupled. In the case of either wet ink or electronic signatures, the law for execution of deeds is the same: the witness must attest the signature (which means that he or she must be present and see the signatory sign the deed, and then apply his own signature to confirm that). Recommendations for acceptable two-factor solutions are provided in Recommendations for Two-Factor User Authentication Within the Government of Canada Enterprise Domain. If a PKI-based soft token is used to support the e signature requirement, the authentication process must be complemented with an appropriate second authentication token. The following guidance on the use of electronic signatures for security screening is being provided in response to discussions at the Government of Canada Security Council (GCSC) and it was felt that it would be beneficial to all DSOs. If you are called on to serve as a witness, all you have to do is observe the signing of the document. For example, an Assurance Level 2 memorized secret token used in combination with an appropriate out-of-band token (such as a “push notification” to a GC-managed smart phone) is equivalent to an Assurance Level 3 token and therefore could be used in tandem to support e-signatures at Assurance Level 3. Current GC guidance on authenticating users includes the following: Essentially, the assurance level required for an e-signature dictates the assurance level required for user authentication, which in turn dictates the assurance level required for identity assurance and credential assurance. The concept of conducting business electronically is nothing new. In fact, the signature may be removed altogether because of the conversion. when using a digital signature or secure e-signature, at least some of the integrity requirements will be supported by the signature itself, including the integrity of the signed electronic data algorithms and associated key lengths approved by the Canadian Security Establishment ( CSE ) must be used as stipulated in ITSP.40.111 ( PDF , 544 KB) Treasury Board of Canada Secretariat / Government of Canada
In addition, advancements in cryptography and computing capabilities may make a cryptographic algorithm (or the associated key length) used to perform the signing operation vulnerable at some point in the future. This Appendix lists sources of information from national and international jurisdictions that address e-signatures. For a digital signature or secure e-signature, there are a number of steps to ensure that the signing operation is performed with legitimate credentials at the time the electronic record is signed. Some of these elements may be captured and protected in different ways, including the use of system audit logs and, or as part of, the digital signature or secure e-signature. At the same time, a witness who appears too expert at testifying could potentially backfire, suggests McLeese. Additionally, the Directive on Identity Management and Standard on Identity and Credential Assurance provide guidance with respect to validating the identity of individuals which apply equally to the use of electronic signatures. The Benefits of Witnesses Though witnesses aren’t always a requirement for executing a legal document, they can help solidify and authenticate your contract by providing proof that the signatures are legitimate and consensual. A memorized secret is typically a password associated with a specific user ID. Appendix A: sources and definitions related to e-signatures, Appendix B: user authentication factors and token types, Appendix C: examples of business activities, Appendix D: guidance sent to DSOs via e-mail on, 2.2 Determining when an e-signature should be used, Personal Information Protection and Electronic Documents Act, Department of Employment and Social Development Act, Electronic Documents and Electronic Information Regulations, Payments and Settlements Requisitioning Regulations, Guideline on Defining Authentication Requirements, Section 3: Guidance on implementing e-signatures, 3.1 Considerations for user authentication, 3.2 Determining the method to be used to implement e-signatures, 3.5 Considerations for long-term validation, Standard on Identity and Credential Assurance, User Authentication Guidance for Information Technology Systems, Personal Information Protection and Electronic Documents Act, Secure Electronic Signature Regulations, Payments and Settlements Requisitioning Regulations, Electronic Signatures in Global and National Commerce Act, European Union (EU) Electronic Identification, Authentication and Trust Services (, United Nations Commission on International Trade Law (, UNCITRAL Model Law on Electronic Signatures, Personal Information Protection and Electronic Documents Act (PIPEDA), Government of Canada Strategic Plan for Information Management and Information Technology 2017-2021, Electronic Records as Documentary Evidence, Uniform Law Conference of Canada’s discussion of the, Authentication method, e-signature, signed data, time-stamp, Medium integrity; for cryptographic e-signature portions will be digitally signed, SES, signed electronic data, verification certificate and certification path and associated revocation information, secure time-stamp, “a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with an electronic document”, “information in electronic form that a person has created or adopted in order to sign a document and that is in, attached to or associated with the document”, “an electronic sound, symbol, or process, attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record”, “an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record”, “data in electronic form which is attached to or logically associated with other data in electronic form and which is used by the signatory to sign”, “data in electronic form in, affixed to or logically associated with, a data message, which may be used to identify the signatory in relation to the data message and to indicate the signatory’s approval of the information contained in the data message”, “a cryptographic transformation of data which provides the service of authentication, data integrity, and signer non-repudiation.”, “an electronic signature that is uniquely linked to the signatory, is capable of identifying the signatory, is created using electronic signature creation data that the signatory can, with a high level of confidence, use under his sole control, and is linked to the data signed therewith in such a way that any subsequent change in the data is detectable.”, “an advanced electronic signature that is created by a qualified electronic signature creation device, and which is based on a qualified certificate for electronic signatures.”, streamline its internal and external business processes, improve how it delivers services to Canadians, rely on internationally recognized rules to create a more certain legal environment for electronic communications and electronic commerce, recognize that electronic communications should not be denied legal effect simply because they are in electronic form, agreement to be bound by the contents of the document, express consent, approval, agreement, acceptance or authorization of everyday business activities (for example, to approve a leave request or formally agree to the terms and conditions of a contract), emphasize the importance of a transaction or event, or to acknowledge that a transaction or event occurred, such as confirming that a contractor’s bid was received by a deadline, provide source authentication and data integrity, such as verification that a public health-related notice originated from Health Canada and has not been altered, certify the contents of a document (that is, a document complies with certain requirements, or a particular process was followed), affirm that information contained in a document is true or accurate, support third-party attestation, such as for an electronic notary function, support accountability, such as being able to trace individuals to their actions, what forms of e-signature are appropriate in the context of the business activity, a substitute for legal advice (business owners should always consult with their legal counsel), a framework to protect sensitive information from unauthorized disclosure (this document does not address confidentiality requirements), user authentication to an internal application to approve something, such as when a supervisor logs into an application to approve a leave request, using a stylus on a tablet touchscreen to write a signature by hand and capture it in electronic form, a typed name or signature block in an email, user authentication to access a website, coupled with a mouse click on some form of acknowledgment button to capture intent, a scanned hand-written signature on an electronic document, a sound such as a recorded voice command (for example, a verbal confirmation in response to a question), documents used as evidence or proof (see PIPEDA Part 2, section 36), original documents (see PIPEDA Part 2, section 42), statements made under oath (see PIPEDA Part 2, section 44), statements declaring truth (see PIPEDA Part 2, section 45), witnessed signatures (see PIPEDA Part 2, section 46), are a form of e-signature based on asymmetric cryptography, section 2 of the SES Regulations prescribes a specific asymmetric algorithm to support digital signatures, section 4 of the SES Regulations specifies that the issuing Certification Authority (CA) must be recognized by the Treasury Board of Canada Secretariat by verifying that the CA has “the capacity to issue digital signature certificates in a secure and reliable manner.”. Step 4: informed by legal counsel and this guidance document, determine if there is an implicit requirement or other legitimate business reason for a signature and if so proceed to step 5; if not then there is no requirement to implement an electronic signature for the identified business requirement, Step 5: determine the type of electronic signature required informed by legal counsel, assurance level assessment and this guidance document and proceed to Step 6, Step 6: implement the identified electronic signature solution followed by reassessment over time, impersonation (the signer is not who they claim to be), repudiation (the signer attempts to deny that they originated an e-signature), loss of data integrity (the electronic data has been altered since it was signed), exceeding authority (the signer is not authorized to sign the associated electronic data), be determined as a result of an assurance level assessment and other tools, the reason or context for the e-signature is clear (the signature is for approval, agreement, consent, authorization, confirmation, acknowledgment, witness, notarization, certification or other purpose), it is clear that the individual(s) understand that they are signing the electronic data (indication of intent to sign), the level of authentication is commensurate with the associated assurance level, the individual(s) have the authority to sign the electronic data, the method used to establish the e-signature is commensurate with the associated assurance level. Mercury-compliant signings, using scanned or photographed signature pages: these methods follow the February 2010 guidance issued by The Law Society of Engla… A multi-factor OTP device is sufficient for Assurance Level 4 authentication; however, it does not have the necessary functionality to generate a digital signature or secure e-signature, which is mandatory at Assurance Level 4. Digital signatures created by the GC need to be verified by these external entities, and therefore it will be necessary to use certificates that have been issued by CAs that are recognized external to the GC.Footnote 9 There may also be circumstances where a digital signature is generated by an external entity that will also need to be recognized by the GC. In Canada, Part 2 of the Personal Information Protection and Electronic Documents Act (PIPEDA) provides a regime that establishes electronic equivalents to paper-based documents and signatures at the federal level. Part 2 of PIPEDA defines an e-signature as “a signature that consists of one or more letters, characters, numbers or other symbols in digital form incorporated in, attached to or associated with an electronic document.” Essentially, an e-signature can be virtually any form of electronic representation that can be linked or attached to an electronic document or transaction, including: There are also some cases where Part 2 of PIPEDA requires the use of a particular class of e-signatures, referred to as a “secure electronic signature.” A secure e-signature is a form of e-signature that is based on asymmetric cryptography. However, in accordance with ITSP.30.031, biometrics can be used only in a multi-factor authentication scenario, such as using a fingerprint scan to unlock a hardware token.Footnote 14. Documents from other jurisdictions may have special additional requirements and then there are documents we cannot witness. Third-party service providers offer various forms of e-signature services that the GC can use, under appropriate circumstances. What are the rules for a contract witness? In Ontario, a Power of Attorney is an important document with specific legal restrictions on who can witness the signature of the grantor (i.e., you) and of the attorney (the person you are giving power). Clients often ask us whether a witness needs to sign an agreement? This information is used to help establish the basic concepts behind e-signatures outlined in this document. In this case, procedural steps (which are outside the scope of this document) must be taken to determine whether the signature was created by the claimed individual and under the appropriate circumstances. Changing the format will render the original digital signature or secure e-signature invalid, as the embedded data integrity check will fail. Definitions of terms used in these sources are also summarized. However, if your witness has not known you for a year, they should take steps to verify your identity before they witness your signature. For enquiries, contact us. It should be noted that the rules pertaining to who may sign have not changed. Another consideration is when the GC is interacting with external businesses and individuals. These documents would generally be for use in Canada, but a foreign government may also require a Canadian citizen to make a declaration at the High Commission. In some cases, it may be possible to create a new digital signature or secure e-signature (for example, by using a trusted source to verify that the converted content was originally signed by a specific individual at a certain time). Note that multi-factor software cryptographic token (for example, a PKI-based soft token such as a myKEY soft token) is purposely omitted here because it is not considered to be an adequate multi-factor solution according to the guidance provided in ITSP.30.031. In other circumstances, there are no hospital requirements and no specific requirements in the GCP (GCP s. 4.8) for an impartial witness to the consent process, nor for a witness to the signature only of the study. As discussed in subsection 2.1, an e-signature is any electronic representation where: There may be requirements to include other supporting information, such as the time that the electronic data was signed. In September 2017, TBS provided guidance on e-signatures to all Departmental Security Officers via e-mail. However, it should be noted that the business activity examples provided here are for illustrative purposes only and in no way are meant to be prescriptive. Generally speaking, there is no requirement for a witness or notary public to witness the signing of the Promissory Note. Over the years, rather than choosing to opt in to PIPEDA, several departments and agencies have amended their own statutes to provide clarity regarding e-signatures and electronic documents more generally. Recommendations for e-signatures at each assurance level are as follows: From a technical perspective, an e-signature at a higher assurance level can also be used at lower assurance levels (for example, an Assurance Level 3 e-signature can also be used to support Assurance Level 1 and 2 e-signature requirements). If you attend the High Commission to have your signature witnessed, please bring your passport or other valid photo ID bearing your signature. This entry about Material Witness has been published under the terms of the Creative Commons Attribution 3.0 (CC BY 3.0) licence, which permits unrestricted use and reproduction, provided the author or authors of the Material Witness entry and the Encyclopedia of Law are in each case credited as the source of the Material Witness entry. This document aims to clarify the interpretation and implementation practices for using e-signatures. Also, all witnesses to legal documents must be over the age of 18 at the time they witness your signature, and they must be of sound mind. There are a number of reasons that services provided by third parties may be considered. It should be noted that nothing stated within this document is intended to replace or override existing legislation or policy. Online financial transactions where existing legislation requires a digital signature or secure e-signature (for example, Binding contracts with external entities that exceed a certain dollar value (based on risk tolerance as determined by departmental evaluation), Managerial approvals of financial transactions that do not require a digital signature or secure e-signature (for example, approval of employee expense claims), Binding contracts with external entities that are below a certain dollar value (based on risk tolerance as determined by departmental evaluation), One or more of the business activity examples provided below under Assurance Level 2 may apply here (risk tolerance varies by department; some departments may elect to implement more stringent security controls for some of the business activities identified below under Assurance Level 2), Expense claim submissions (but not approvals), Online submission of certain applications or forms from external users, Intradepartmental memoranda of understanding, Everyday correspondence with little to no implied commitment on behalf of the sender or the GC, The implementation of electronic signatures within a department or agency should be done in collaboration with IT and business stakeholders (where appropriate), and, when appropriate, departmental legal counsel may be consulted for advice, The type of technology to be used and approach to implementation should align with the. See the Uniform Law Conference of Canada’s discussion of the Uniform Electronic Commerce Act. the need for a signature has been established for some other non-legislative reason, in either case, the type of e-signature may be unspecified or unclear, in the absence of specified legal or policy requirements, when requirements for implementing an e-signature are not specified or are unclear, Step 1: identify the business requirement, Step 2: informed by legal counsel, determine if a requirement for a signature is identified in existing legislation or policy and if so proceed to Step 3; if not proceed to Step 4. This section sets out the type of e-signature recommended at each assurance level. The role of an independent witness will be to verify all of the following information: The witness is at least 18 years of age; The witness understands the nature of the request; Jurisdictions throughout the world have adopted laws that recognize the validity of electronic documents and e-signatures. The properties identified in the SES Regulations describe a digital signature based on the Rivet, Shamir, Adleman (RSA) algorithm. Rita.Whittle@tbs-sct.gc.ca / Tel: 613-369-9683 / TTY: 613-369-9371. Multi-factor authentication (or, more specifically, two-factor authentication) can also be achieved by combining an appropriate “something you know” token with an appropriate “something you have” token. Commissioner means the Commissioner of the Force; (commissaire) designated program 1. designated program means a provincial or municipal program that is set out in the schedule; (programme désigné) designated program protectee 1. designated program protectee means a person who is receiving protection under a designated program; (bénéficiaire d’un programme désigné) federal security, defence or safety organization 1. federal securit… Departments and agencies wanting to pursue the use of electronic signatures as an alternative to the traditional wet signature should consider the following to help determine whether such a move is viable in their operating environment and to be positioned to mitigate any potential legal risk which may arise. The objective of obtaining an individual’s signature on security screening forms is to confirm that they acknowledge that they have been informed that their personal information will be collected and to obtain their consent that their personal information will be disclosed for security screening purposes (as outlined in Privacy and Consent clauses), and to comply with sections 7 and 8 of the Privacy Act. This is where the concept of long-term validation (LTV) becomes important. Should you require a witness other than the signing officer at the High Commission, you will need to arrange to bring that witness with you. For example, a third-party vendor may offer a suitable workflow product that meets the needs of the department (that is, it supports a given business requirement and meets the e-signature and audit requirements). application of the public key contained in the digital signature certificate to decrypt the encrypted message digest and produce the message digest referred to in paragraph (a). By the time you get to trial, the expert, in preparing the report, is already part of the way there on presentation,” says McLeese. Privacy and consent clauses should be the same as those used in the paper forms to ensure that there was no discrepancy between the two formats. This document provides guidance on using e-signatures in support of the GC’s day-to-day business activities. Therefore, from a technical perspective, a digital signature and a secure e-signature are essentially the same since both: However, the Secure Electronic Signature Regulations (SES Regulations) go further in several respects, including: As mentioned, there are cases where a law (or policy) specifies: Figure 1 outlines the steps to determine whether an e-signature is required and, if so, what type of e-signature is required. They are only required to witness your signature. For Canadians, virtual or electronic signatures have historically not been legally recognized when it comes to estate planning documents. Thus if no witness is present, the signature line for the witness may be left blank. Based on a search for the term “electronic signature” using the Department of Justice Canada advanced search tool. 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