Can CRA Forms Be Electronically Signed?

I am going to look at the European Unions's eIDAS (Electronic Identification Authentication and Trust Services) standards before I review Canada's regulations as I found them easier to understand from a layman's perspective. If you do business in Europe, you will need to be aware of eIDAS.

Though similar, Canadian law is different from the European Union's regulations which are governed by eIDAS.

The European Union's eIDAS regulations lay out clearly secure cross-border transactions governance. Examples of eIDAS's different standards of electronic signatures follow.

1. Simple electronic signatures (SES) - the tax payer downloads a PDF of the tax form, makes a copy, signs it, and sends it back by email. It is the easiest method but provides the least validation. It would normally be used if you don't have to verify the person's identity and where you believe the signature is authentic.
   
   
2. Advanced electronic signatures (AES) - this is the most commonly used e-signature. The tax preparer uses an electronic registered delivery service provider to create an audit trail with evidence of the transaction or signing event. The service provides authenticity, identity verification, authentication and integrity. It utilizes PKI technology. 
   
   
3. Qualified electronic signatures (QES) - this signing method provides the highest level of assurance but may be burdensome to use. It requires identification using a certified authority, in-person validation or video as well as a PKI certificate issued with the appropriate technology. In Europe, the signature holds the same legal power as a traditional signature (often referred to as a wet signature).
   
   

HR Insider (see references) explains that the European Union’s Directive on Electronic Signatures imposes no general requirement of reliability but leaves proof to the parties. If the validity of the signature is questioned, the party wanting to enforce the signature must prove it is valid.

HR Insider further explains that the EU Directive "ensures that electronic signatures can be valid despite their electronic form and despite not meeting the more demanding standards described in the rest of the Directive. It goes on to prescribe in considerable detail a regime for “advanced electronic signatures” created by a “secure-signature-creation device” and supported by “qualified certificates”". 

With regards evidence, HR Insider states that the EU Directive "provides that qualified electronic signatures must be admissible in evidence, and that other electronic signatures may not be denied admissibility on grounds of their electronic form or because they are not qualified in one element or another".

The European Unions's eIDAS is a helpful conceptual framework, but Canadian enforceability usually turns on evidence and reliability of the method, not the label.

As discussed, Advanced Electronic Signatures (AES) and Qualified Electronic Signatures (QES) are types of electronic signatures that are classified under the eIDAS regulation of the European Union. The United States also follows similar definitions under the federal ESIGN Act and UETA law.

However, these specific terminologies - AES, QES, or Simple Electronic Signatures (SES) - are not typically used in the context of Canadian law, which has its own regulations regarding electronic signatures.

Canada has generally used a minimalist response to determine the certainty about the legal status of electronic communications and electronic signatures. That is, legislation indicates only the general nature of the results to be achieved. The context is that the basic function of a signature is to link a person with a text or document.

In Canada, electronic signatures are recognized and governed by two primary pieces of legislation:

(1) PIPEDA (Personal Information Protection and Electronic Documents Act)

PIPEDA recognizes the use of electronic signatures. It doesn't detail levels of electronic signatures in the legislation, but instead, it states that a generic electronic signature is "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".

Secure Electronic Signature Regulations outline the requirements for secure electronic signatures. They are appended to PIPEDA and the Canada Evidence Act. It includes instances when secure electronic signatures must be used.

(2) UECA (Uniform Electronic Commerce Act) 

UECA provides non-binding model legislation for each province and territory. Each province has its own laws and regulations. Quebec adopted its own legislation not based on UECA. Legislators wanted to create certainty that e-signatures would be accepted.

Adobe (see references) explains that "where a given ‎statute or regulation is silent on the method of execution, electronic signatures are generally acceptable and enforceable in court". Provincial and federal legislation may require the use of secured electronic signatures in specific circumstances. 

Also thrown into the mix is the Government of Canada's own internal guidance on electronic signatures -Government of Canada Guidance on Using Electronic Signatures. It does not replace or override existing legislation or government policy but acts as a guide for the use of electronic signatures for day-to-day business activities.

As noted earlier, while Canadian law accepts electronic signatures, the terms AES, QES, or SES aren't explicitly used or defined by PIPEDA. I found this disappointing as the European Union's 2016 eIDAS was easy to understand for a layman.

The enforcement and acceptance of electronic signatures can vary based on the specific requirements of different legal contexts. However in the broadest of definitions, Canadian laws seem to be analogous to SES standards except when secured electronic signatures are a legal requirement.

The first piece of legislation that governs Canadian electronic signatures is PIPEDA (Canadian federal law) endorses the use of e-signatures and outlines explicit requirements for an electronic signature to be secure. According to PIPEDA, a secure electronic signature should be:

• Unique and distinctive
• Created under the signer’s sole control
• Can confirm the identity of the signatory
• Protected by the technology that can detect any subsequent changes in the document

PandaDoc (see references) explains this means that you can’t just draw an “X” or another kind of icon to sign your document. Online marks like these can’t be identified as unique and can’t prove your identity.

The Canadian government has established certain technologies and processes that it recognizes as providing a secure electronic signature. This includes digital signatures secured by a Public Key Infrastructure (PKI), among others.

If a document requires a secure electronic signature, then only using a technology or process recognized by the Canadian government as providing a secure electronic would suffice if you do business with the government.

It's important to note the validity of an electronic signature can depend on its use. Some transactions or documents may require a traditional ink (or wet) signature or additional steps beyond just a secure electronic signature.

PIPEDA secure electronic signature criteria seems to have the same requirements as a DES signature and possibly AES.  While the SES standard appears to be the equivalent to Canadian law, to be sure your document is provable or enforceable in court, it seems it would be safer using an e-signature service provider that meets at a minimum the AES standard even though Canadian law doesn't require it. This usually means the service provides enhanced options including multi-factor authentication, audit trails, and other security measures.

Canadian legislation and regulations are scattered over various acts (or government frameworks) which are similar but each one different as well as more vague than eIDAS. Adobe explains this is because PIPEDA does not apply to all federal laws but only specific federal statute provisions. This left gaps. The gaps were filled through many federal statutes and regulations incorporating language about electronic documents and signatures.

The second piece of legislation that governs Canadian electronic signatures is UECA.  UETA (Uniform Electronic Transactions Act) is a similar piece of legislation for the United States. 

UECA is a uniform act in Canada, developed by the Uniform Law Conference of Canada. It's aimed at facilitating electronic commerce in Canada by providing a set of rules that ensure the legal validity of electronic documents. Similar to UETA, it does not make electronic documents or signatures more valid than their paper counterparts; it simply balances the playing field. 

Under Canadian common law, an electronic signature is binding. UECA leaves open the means of achieving the appropriate degrees of assurance. It is also silent on evidence, however "many of the uses of secure electronic signatures in Canadian federal legislation support an evidentiary use".

UECA does require certain requirements for it to be considered valid and enforceable:

• Consent: Both parties involved must have agreed to conduct transactions and business electronically. Consent may not necessarily be explicit and can be inferred from the context and surrounding circumstances of the transactions in which they are engaged.
  
  
• Intent to Sign: Both parties involved in the contract must show clear intent that they meant to sign. The signer can show intent by actively attaching a digital signature for electronic document signing.
  
  
• Association of Signature with the Record: There needs to be evidence that a signature is linked or connected to the document being signed. The e-signature needs to be attributable to the signatory subject to the context and circumstances surrounding the signing process. This could be in the form of an IP address, date/time stamp, or any other relevant metadata.
  
  
• Record retention: The electronic record can be reproduced for all parties involved and can be retained and accurately reproduced for later reference. It also needs to maintain an accurate audit trail of all actions taken at every stage of the workflow. The signed document must be tamper-evident, meaning any alterations made post-signature can be detected.

It's worth noting that UECA is technology-neutral and considers an e-signature to be "electronic information that a person creates or adopts in order to sign a document and that is in, attached to or associated with the document".  

The purpose of UECA defining electronic signatures is to make clear that the electronic version does not have to look like a handwritten signature when it is displayed. This leaves some room for interpretation and can potentially include typed names, electronic images of a handwritten signature, and more. For example, many Canadian banks have you sign electronically by paging to the end of the document online and typing in your name as your signature on the form before you hit the submit button. If you do not type in your name, the submit button fails to work.

The Canadian Government's Guideline on Identity Assurance provides a risk assessment process for determining the ability to rely on the digital identity of a party. It is what gives Canadians a secure and convenient way to sign into government services.

The Government of Canada's Guidance on Using Electronic Signatures gives guidance on the type of electronic required. The decision is informed by legal advice, assurance level assessment, and the Government of Canada electronic signature guidance.

When making an assessment of assurance levels, the impact of threats should be considered.  Some threats to consider are:

• 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)

Once the Identity Assurance Level (IALs) assessment requirements for digital identities has been completed, authentication options need to be determined. Information Technology Security Guidelines (ITSG) are relied upon to determine the appropriate use of cyber authentication services. ITSG-31 User Authentication Guidance for IT Systems assists with credential assurance level requirements while ITSG-33 IT Security Risk Management: A Lifecycle Approach assists with authentication requirements.

IALs for the electronic signing process seem to be the closest thing to eIDAS:

• IAL1: Little confidence that an individual is who they claim to be. Any type of e-signature is acceptable. Supporting information should include the e-signature and the signed electronic document. I think this is the equivalent to SES. Compromise could reasonably be expected to cause nil to minimal harm.
  
  
• IAL2: Some confidence that an individual is who they claim to be. Any type of e-signature can be used in conjunction with the authentication requirements for Assurance Level 2 or higher. Supporting information should include the authentication method, the e-signature, the signed electronic document, a time-stamp based on standard local system time that indicates the time the document was signed. This level of assurance is likely still classified as SES as it does not seem to involve encryption. Compromise could reasonably be expected to cause minimal to moderate harm.
  
  
• IAL3: High confidence that an individual is who they claim to be. Two options here.
  
  (1) A non-cryptographic e-signature may be used in conjunction with acceptable two-factor authentication. Supporting information for a non-cryptographically based e-signature should include the same information as for Assurance Level 2.
  
  (2) A digital signature or secure e-signature may be preferred in some circumstances, depending on the target environment and the security controls that are in place. Supporting information for digital signatures or secure e-signatures should include the verification certificate, the certification path, the associated revocation information or status at the time the electronic document was signed.
  
  Level 3 is possibly classified as AES but maybe not if the non-cryptographic option is used as PIPEDA (through required government processes) and AES require PKI which is asymmetric cryptography. Compromise at this level could reasonably be expected to cause moderate to serious harm.
  
  
• IAL4: Very high confidence that an individual is who they claim to be. The signer's identity was confirmed using a multi-factor cryptographic SSCD hardware device like a smart card, biometric identifier like a fingerprint, or a secure one-time password.
  
  Supporting information for level 4 assurance should include the same information as for Assurance Level 3 digital signatures plus a secure time-stamp. I'm going to guess this would be the equivalent of QES if it includes verification by a certified authority. Compromise at this level could reasonably be expected to cause serious to catastrophic harm.

According to PandaDoc, Canadian law doesn’t recognize advanced or qualified electronic signatures like the higher levels of assurance often classified in other countries. Canada only has a standard electronic signature (SES) as defined by UECA.

Examples of identity information are name, date of birth, and sex, for individuals; business registration numbers for organizations; and serial numbers and network identifiers for telecommunications and computing devices. Email addresses as well as user names and passwords can also be a part of verifying an identity. On their own they would only provide a low level of assurance. Layers of verifying a digital identity provides greater assurance.

Some examples of online identity verification methods are biometrics, knowledge-based authentication (KBA), two-factor verification, personal identifying information (PII), or geo-location.

The laws and regulations around electronic signatures in Canada are confusing. I guess all that is important is that the answer to, "Can CRA forms be electronically signed?" is yes if you are trying to be tax compliant and paperless in your business!