R. v. Oszenaris, 2008 NLCA 53 (CanLII)
[19] I agree with Barrow J. in R. v. Therrien, 2005 BCSC 592 (CanLII), at paras. 27-28, that electronic disclosure is meaningful if the disclosure materials are reasonably accessible – a matter to be assessed in the circumstances of each case. I also agree a significant factor in assessing accessibility is the manner in which the material is electronically organized and formatted.
Accessibility may also depend upon the circumstances of the accused, including accused’s counsel. For example, if for some reason access to a computer were not available, this could have a significant bearing upon the decision. I do not agree, however, that in meeting the onus of establishing a s. 7 infringement on a balance of probabilities, it is sufficient for defence counsel to merely raise general concerns as to whether her degree of computer literacy might be adequate to the task of adequately examining the electronic disclosure package. I conclude, with respect, that the trial judge erred when she stated, at para. 53:
Accessibility may also depend upon the circumstances of the accused, including accused’s counsel. For example, if for some reason access to a computer were not available, this could have a significant bearing upon the decision. I do not agree, however, that in meeting the onus of establishing a s. 7 infringement on a balance of probabilities, it is sufficient for defence counsel to merely raise general concerns as to whether her degree of computer literacy might be adequate to the task of adequately examining the electronic disclosure package. I conclude, with respect, that the trial judge erred when she stated, at para. 53:
… I accept defence counsel’s position that she is not sufficiently computer literate so as to enable her, and thus the accused, to be assured that every avenue has been explored vis-à-vis the disclosure packages to enable full answer and defence. In accepting defence counsel feels she is ‘at risk’ of overlooking something or missing something on the CD-ROMs I can only conclude, in these circumstances, disclosure on CD-ROMs, on a balance of probability, does not amount to meaningful disclosure and, therefore, offend[s] s. 7 of the Charter of Rights and Freedoms. …
[20] In today’s world, it is not unreasonable to expect that counsel will be in a position to utilize a computer for the management of large volumes of material. Although argument at trial and the trial judge’s decision focused on the adequacy of defence counsel’s computer skills, on appeal counsel for the respondent stressed difficulties with the SUPERText format, rather than any lack of computer skills on her part.
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