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[10] In R. v. Bidyk, Judge Whelan of this Court dealt with a disclosure application that included a request for a typed copy of a police officer’s notes, the handwritten version provided being illegible. Finding that “...it is reasonable that where the notes are illegible the defence receive a typed or legible copy of these notes”, she determined that refusal to provide such disclosure in that case was a breach of s. 7 of the Charter. Judge Whelan specifically noted that her decision addressed police officer’s notes only, leaving it up to “... another court on another occasion to decide whether transcription would be required of other documents included in Crown disclosure”
[11] In R. v. Bigge, a case decided in 2004, Mr. Justice Foley of the Court of Queen’s Bench was faced with a defence argument that reasonable disclosure on the facts of that case, in which reference had been made to information stored electronically on 115 compact discs, required that hard copies of the information be provided to the defence. The Court held that the Crown was obliged to provide a hard copy of some of the information, part of the argument being that disclosure in electronic format was not “reasonable disclosure required in the circumstances of the case”. Mr. Justice Foley reiterated the principle that:
... it is not to be overlooked that the investigation results were achieved at public expense to ensure that the ends of justice are met. Thus where the method of investigation and sources of information may assist individuals to defend themselves, the principle of broad disclosure will prevail save for the narrow exceptions noted above.
Those exceptions referred to information that is irrelevant, privileged, or protected by informant privilege.
[12] Finally, in R. v. Anderson, the defence sought disclosure in a “useable format”. The accused was faced with a 24 count indictment involving allegations surrounding the sale of controlled substances. Dealing with that specific issue of a useable format, Mr. Justice Mills of the Court of Queen’s Bench noted that defence counsel was provided with “...all documents involved in this prosecution by way of electronic data stored on a hard drive”, which included some 30,000 to 40,000 pages of disclosure, and in addition to that, 275 audio files, 50 video files, and a large number of photographs. The disclosure was assembled by resort to a task-based system that was the same one as the Crown used in preparation for trial but the Court found it was “not organized to be specifically helpful to the defence but would provide the defence with custom access to a particular area of interest to them”. It is clear from reading the decision that there was a significant amount of technical expertise, skill and sophistication needed by the defence team to access the data, and although defence counsel certainly had that capability, and a Crown witness was available for the defence to assist them in understanding and utilising the Crown system, navigation through the material would be so cumbersome as to be virtually impossible. Citing the concept of trial fairness, the defence sought “the same documents in the same format to be utilized by police and Crown during the investigation and at trial, and police officers’ notes in hard copy arranged by officer and date”.
[13] In reviewing the application and noting the position of each Crown and defence, Mr. Justice Mills stated at paragraph 11 that:
... it would seem logical that the starting point for any defence preparation would be the actual evidence to be utilized by the Crown at trial. That allows the defence to assess their ability to challenge that evidence in order to discredit it and to assess the evidence to determine if, on an evidentiary basis, it would be wise for the defence to call contradictory or exculpatory evidence.
Looking at all the factors of that case, including the number of police officers involved in the investigation which led to the issuance of the search warrant, a potential attack upon the validity of that warrant being virtually certain, Mr. Justice Mills ordered that certain notes of the 75 officers be provided in hard copy, and in chronological order.
[14] Cases I have reviewed respecting disclosure often deal with a tension between electronic format, in increasing use by the Crown, and a corresponding need, and a reasonable one in my view, of the defence to have disclosure in a useable format. The above-referred to cases certainly leave open the possibility that, in appropriate cases, disclosure in a different format that the Crown chooses to utilize can be ordered. I find, however, that this is not such a case.
[15] The cases referred to in this decision generally have, as a common element, the fact that the disclosure being sought actually exists in a form not yet provided to the defence, or in a form that is not useable in a practical sense by the defence, as opposed to the situation in this case, in which the defence asks the Crown to create something new, something that in no way can be said to be held by the Crown. In my view, what the defence is essentially asking for here is that the Crown go beyond its duty to disclose what is both in its possession, and in a useable format, and produce something more convenient to the defence, something that can just as easily be created by the defence.
[16] I have to agree with Ms. Pannell’s characterization of this application as dealing with the form of disclosure, as opposed to the fact of disclosure. There is no suggestion that the Crown is refusing to deliver up, either by way of neglect, or the artifice of claiming irrelevancy or privilege, information that they have. What they are refusing to do in this case is to do things that they are not required to do. If the defence wishes access to a transcript, the defence can make it as easily as the Crown can.
[17] As for the form of disclosure being requested, I note as well that what is under discussion here as a “transcript” is by no means an official transcript as contemplated by Part II of The Evidence Act, primarily ss. 28 through 32, which deal with provision of certified transcripts of court proceedings. Rather, what would be provided would be a police officer or secretary’s interpretation of what that individual believes the individual being recorded says, which would be of questionable evidentiary value compared to the actual recording.
[18] As well, whereas I can agree that it may be quicker to browse through a transcript, that transcript is certainly not the best evidence. The transcript is far less accurate; one misses the nuances of the individuals’ body language, the mood and demeanour of the various participants in the statement process, and the surrounding circumstances of the statement itself.
[19] Although it might be more familiar a process to cross-examine a witness based on a transcript, the reality is that one could not cross-examine on the requested transcript in any event. Further, s. 10 of the Canada Evidence Act specifically sets out a process in which a witness may be cross-examined as to previous statements made in writing “... recorded on audiotape or videotape or otherwise... ”. The process might be more unwieldy than cross-examining a witness based upon an official transcript; however, the process is certainly available as an option.
[20] In conclusion, the application is dismissed.
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