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[60] Crown counsel submits that the main issue to be decided on this voir dire is whether I should interfere with the Crown’s exercise of its discretion with respect to the manner of disclosure. I will therefore discuss some of the law with respect to the manner of disclosure.
[61] In a very helpful analysis, Sinclair J. summarizes the law of electronic disclosure in R. v. Piaskowski, 2007 MBQB 68 (CanLII), [2007] 5 W.W.R. 323 at paras. 21-28:
There are cases which have held that electronic disclosure is an acceptable form of disclosure while others have held otherwise. The general principle, as will be seen, seems to be that electronic disclosure is not per se objectionable so long as the accused can reasonably access the electronic materials. The principle arises from the cases of R. v. Therrien, 2005 BCSC 592 (CanLII), 2005 BCSC 592 (B.C.S.C.); R. v. Greer, 2006 BCSC 1894 (CanLII), 2006 BCSC 1894 (B.C.S.C.); and R. c. Cazzetta [R. c. Cazzetta, 1998 Carswell-Que 4537 (Que. S.C.)] (October 26, 1998), (Que. S.C., Crim. Div.) [unreported].
In R. v. Therrien, supra, the British Columbia Supreme Court found that the Crown disclosure obligation included the requirement to provide disclosure to an accused which he can reasonably access. The court held that the fact that some electronic disclosure may have to be converted ultimately to hardcopy does not mean that electronic disclosure has not been meaningful.
Recently in R. v. Greer, supra, the British Columbia Supreme Court again had to determine if the Crown could meet its disclosure obligation by providing electronic copies of documents as opposed to paper copies. The court referred to the case of R. v. Barges, [2005] O.J. No. 4137 (Ont. S.C.J.), in holding that so long as the disclosure is reasonably accessible the court should not interfere with the Crown’s discretion as to how it is organized. The choice between electronic and paper disclosure was one that the court found the Crown had the right to exercise so long as the accused could reasonably access the material to make full answer and defence.
In the 1993 Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (“the Martin Report”), the report’s authors stated at pp. 191, 192:
As a practical matter, the Committee recognizes that disclosure in writing is usually the most efficient method of according an accused his or her constitutional rights. The detailed recommendations that follow speak, for the most part, of providing copies of relevant material. Most information relevant to any particular prosecution is accumulated in some written form, and, therefore, can be readily photocopied and provided. Written disclosure, with a record kept of what documents have been disclosed, can also greatly reduce the potential for later misunderstandings about what has and has not been disclosed. Written disclosure is also convenient for both parties. Defence counsel can review the material in a convenient fashion and, wherever necessary, do so in consultation with the client; Crown counsel can review the same material conveniently, confident that no disclosure issue with respect to the information contained in that material will arise at trial.
While the Committee recognizes that, as a practical matter, disclosure will, in most cases, be accomplished in writing, there is, in the Committee’s view, no inflexible constitutional obligation to provide disclosure in this manner. As a constitutional requirement, “disclosure” retains its plain and ordinary meaning: it is not necessarily synonymous with providing copies. ...
The Martin Report refers to a decision of the Ontario Court of Appeal in R. v. Collier, [1992] O.J. No. 2411 (Ont. C.A.), where the court held as follows:
... Proper disclosure of the reports did not necessitate providing copies of the reports, particularly in the absence of any suggestion that copies were requested ....The Crown could fulfill its obligation to disclose all material in the reports without actually providing copies to the defence. In so holding, we do not suggest that defence counsel would not be entitled to copies of the actual reports if requested, .... We mean only that non-disclosure cannot be equated with a failure to provide copies of the actual reports.
In R. c. Cazzetta, Côté J. said at p. 5:
In my opinion there is no set method of disclosure, and it would not be appropriate to hold that the duty must be discharged in any particular form. ...
Cases dealing with electronic disclosure where courts have held that the electronic disclosure offered by the Crown does not meet the Crown’s disclosure obligation imposed by the Charter include R. v. Obront (1998), 39 W.C.B. (3d) 340, [1998 CarswellOnt 6424 (Ont. Prov. Div.)], R. v. Cheung, 2000 ABPC 86 (CanLII), [2000] A.J. No. 704 (Alta. Prov. Ct.), R. v. Cassidy, [2001] O.J. No. 5669 (Ont. S.C.J.), R. v. Hallstone Products Ltd., 1999 CanLII 15107 (ON SC), [1999] O.J. No. 4308 (Ont. S.C.J.), and R. v. Blencowe, 1997 CanLII 12287 (ON SC), [1997] O.J. No. 3619, 35 O.R. (3d) 536, 46 C.R.R. (2d) 175, 118 C.C.C. (3d) 529, 9 C.R. (5th) 320 (Ont. Gen. Div.), R. v. Bigge, 2004 SKQB 500 (CanLII), [2004] S.J. No. 856 (Sask. Q.B.), R. v. Jarvie, [2003] O.J. No. 5570 (Ont. S.C.J.), R. v. Chow, 2001 BCSC 845 (CanLII), [2001] B.C.J. No. 2938 (B.C.S.C.), and R. v. Jonsson, 2000 SKQB 377 (CanLII), [2000] S.J. No. 571 (Sask. Q.B.).
In R. v. Obront, supra, the judge directed the Crown to provide hardcopies of all of the electronic disclosure and made the following comments:
¶87 . . . The general attitude of the defence counsel is to this effect: Primarily, they received electronic disclosure, or electronic reproductions of the original documents, of which some have some working knowledge, of which other[s] admittedly have no working knowledge as to how to reproduce these electronic productions in order that they can not only satisfy themselves and educate themselves as to the Crown’s position, but to generally discuss the matters with their respective clients to obtain instructions and directions from their clients as to whether or not admissions can be made, or as to defences that they may have in regards to these documents, or as to information so they can generally cross-examine the witnesses that may be called by the Crown. To put defence counsel in such a position that they would have to either retrain, or to have their clients assume inordinate expense to have someone else reproduce all these documents would be unfair. I am going to order that the Crown produce, as they have in the past, the documents that have been seized in this matter and upon which they are going to be depending on in the prosecution of this matter as against all the accused.
[62] In R. v. Oszenaris, 2007 NLTD 126 (CanLII), [2007] N.J. No. 236 (QL) (Nfld. S.C.), Dunn J. conducted a thorough review of the law and pointed out that disclosure materials must be made available in a manner so that the defence may conduct a meaningful examination of them.
[63] Beard J. stated in Grant that disclosure need not be provided in a perfect manner, but it needs to be done fairly in order for the accused to make full answer and defence. She stated at paras. 42-43:
…In the case of voice recordings or videotapes, it can include providing transcripts, summaries or copies of the recordings, or by making the originals available at a central location. In the case of documents, it can be by providing copies, summaries, an index, or by making the originals available. Part of the discretion of the crown in providing disclosure, subject to review by the courts, is to determine how it is to be done, keeping in mind expense to the crown, the time required to prepare summaries, copies, transcripts, etc., public interest concerns and privacy interests. Determining what constitutes full disclosure is a balancing act between the rights of the accused, the rights of others affected by the proceeding and the need for a workable criminal justice system. This balancing was described by McLachlin J., in O’Connor as follows:
“[192] Discovery on criminal cases must always be a compromise. On the one hand stands the accused’s right to a fair trial. On the other stands a variety of contrary considerations. One of these contrary considerations is the protection of privacy of third parties who find themselves, through no fault of their own, caught up in the criminal process. Another is the increase in the length and complexity of trials which exhaustive discovery proceedings may introduce. Both impact adversely and heavily on the public.
“[193] The task before us on this appeal is to devise a test for the production of records held by third parties which preserves the right of an accused to a fair trial while respecting individual and public interest in privacy and the efficient administration of justice. The key to achieving this lies in recognition that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair. ... What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.
“[194] Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence. From the accused’s perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness. When other perspectives are considered, however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system - all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires.”
As is succinctly noted in R. v. Chow (K.C.S) et al., 2001 BCSC 483 (CanLII), [2001] B.C.T.C. 483, [2001] B.C.J. No. 2938 (S.C.), there is a need to balance the duty to disclose and the difficulties associated therewith, particularly in a trial involving a large amount of disclosure. Therefore, while the disclosure does not have to be perfect, at the end of the day it does have to be fair and sufficient for the accused to make full answer and defence while at the same time balancing the duty to disclose and the difficulties associated with providing that disclosure, particularly in a trial involving a large amount of disclosure.
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