Court Victory for UBC student

Many law students dream of arguing a case before the courts and successfully changing the law. For one law student, this opportunity came before he had even graduated.

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 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.”