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[9] The Crown is obligated to make meaningful disclosure but has a discretion to decide how to do that. The discretion is reviewable by the court (See: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326).
[10] The accused must be able to reasonably access the material to make full answer and defence. This is necessary to ensure the accused has a fair trial (See: R. v. Therrien, 2005 BCSC 592 (CanLII), ¶ 36).
[11] Whether it is reasonably accessible depends on how it is organized and on the circumstances of the defence (Therrien, R. v. Mercier, [1994] A.Q. no. 240 qt ¶41, R. v. Amzallag [1999] Q.J. No. 6252 at ¶22).
[12] However, if the disclosure is reasonably accessible, the court should not interfere with the Crown’s discretion about how the material is organised just because there is a different way of doing so. The purpose of the disclosure is to ensure the accused has the information required to make full answer and defence (R. v Barges, [2005] O.J. No. 4137).
[13] The defence refers to Amzallag, but I point out it is a 1999 decision and the use of computers is much more prevalent now. The disclosure software was termed so inadequate that an expert programmer would not use it to have access to the information (¶4). This seems to have been remedied (¶6). Even in that case it does not appear that all the disclosure was ordered in hard copy.
[14] At ¶24 on the other hand, the rest of the evidence that was furnished to the defence in the form of CD-ROMS is considered valid since the hard copies that petitioners are requesting are part of the past disclosure and such costs must be borne by Petitioners.
[15] The decision R. v. Ivarluk, 2005 NUCJ 5 (CanLII), [2005] Nu.J. No. 5 was decided based on the special circumstances of circuit courts in remote locations in Nunavut.
[16] The decision R. v. Felderhof, [1999] O.J. No. 5107 is so brief as to provide no insight as to the circumstances.
[17] The decision R. v. Mah, 2001 ABQB 322 (CanLII), [2001] A.J. No. 516 is distinguishable because there the Crown had provided no search engine to allow reasonable access to the data. The hard copy that was provided was not orderly or workable. The disclosure was insufficient to allow the def to make full answer and defence.
[18] In R. v. Grant, [2003] M.J. No. 382 the accused were in jail and the material disclosed required computers and in some cases special viewing equipment some of which was obsolete.
[19] R. v. Hallstone Products Ltd., 1999 CanLII 15107 (ON SC), [1999] O.J. No. 4308 is distinguishable because in that case the electronic disclosure was so defective that even with computers, software and assistance it could not be properly searched.
[20] R v. Mah,2001 ABQB 322 (CanLII), [2001] A.J. No. 516 (Alta QB) and R. v. Jarvie, [2003] O.J. No. 5570 (Ont. Sup. Ct. of Justice)and R. v. Foy, [2001] O.J. No. 617(Ont. Sup. Ct. of Justice) are also cases where the electronic disclosure was so poorly organized that it failed to meet the Crown’s obligation to make reasonable disclosure.
[21] In our case the Crown and the police have gone to a great deal of time and expense to provide disclosure in a form which will be of assistance to defence counsel and the accused to deal with an otherwise overwhelming amount of material.
[22] Defence argues that the decision in Therrien was not in line with other Canadian authorities where it requires counsel to provide their own computer and software at their own cost. However, the cases the defendants refer to are dated or distinguishable. I find that Therrien is correct and applicable to the situation before me.
[23] R. v. Lam, 2004 ABQB 101 (CanLII), [2004] A.J. No. 133 (Alta. Q.B.0 is a case where the court denied the defence request for a computer program that provided better searching capabilities and the ability to note up the documents. The Crown had met it’s obligation to provide reasonable disclosure. The court did not follow R. v Mah saying that it was based on the unique circumstances of that case and did not lay down any general principals. The court said:
Where disclosure is provided in electronic form, the Crown’s obligation does not extend to providing with the disclosure the best available tools so long as the tools provided permit a reasonable level of access to each element of the disclosure. (¶20)
ANALYSIS
[24] The disclosure here is in a form which does allow easy access with the use of computers and software that is readily available and usable by the public. This includes main folders with primary evidence including audio and video recordings of statements, audio of some intercepted communications and video of some searches, ledgers, police tip files and reports to Crown counsel. The reports to Crown counsel dealing with the investigated vehicles provide summaries of and links to the evidence. The Crown will do some additional organizing of the material to make some of it more accessible. The organization helps both the defence and the Crown.
[25] Some instruction on the way in which the material is organized and techniques for searching the hard drive is all that is necessary to allow the defendants to find their way around the data base. This is far easier than trying to go through 250,000 pages even if they are tabbed and bound.
[26] The cost of producing hard copies would be $25,000 to $30,000 per copy. This is a major investigation and the liberty of the accused is at risk. The cost is one factor, but does not take priority over the right of the accused to full disclosure. It would also take an unreasonable amount of time to produce a hard copy. The estimate is 7 hours a day for 42 days, per copy.
[28] Mr. Anaka was able to negotiate financial assistance from the provincial government. It is not clear why he did not qualify for legal aid. However, to obtain the funding he did he had to satisfy the province that he was unable to pay the costs of a lawyer for this case. It is not clear on the evidence what his financial circumstances are. He may or may not be able to pay for his own computer. His counsel has received the hard drive disclosure and I am satisfied that the Crown has met it’s obligation to make disclosure. There is no basis for me to order the Crown to provide Mr. Anaka with a computer. It is not clear that he has no access to a computer.
[31] In Therrien, the court recognized that counsel often, if not invariably, print copies of some of the electronic disclosure. The court recognized that this is often necessary to suit counsel’s particular needs and preferences. However, the court said that it does not follow from that fact that it may be necessary to create hard copies for some, but frequently not all of the materials in electronic format that disclosure in that format is insufficient to satisfy the constitutional common law obligations of the Crown to provide disclosure (¶26-27).
[33] I recognise this would require a printer and the necessary paper and ink. However, Crown’s obligation to provide disclosure is to provide the disclosure in a format that is accessible to the accused, not in a format that is the easiest for counsel to use for trial or in the fashion they prefer. Disclosure is a compromise that requires a balancing of the duty to disclose and the difficulty of providing disclosure.
[34] In R. v. Grant, [2003] M.J. No. 382 referring O’Connor, the court said:
… 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 transcript etc. and 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. (¶42)
[35] This is similar to the comments of Madam Justice McLachlin, as she then was, in O’Connor at p.192 – 193 where she talks about discovery in a criminal case always being a compromise. She also said that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials but rather a trial which is fundamentally fair.
[36] In Grant, the court asked if the Crown had any obligation to provide disclosure in any particular form and said what constitutes full disclosure depends on the facts of the case and the circumstances of the accused (¶37).
[37] In Therrien, the court said that whether electronic disclosure is reasonably accessible is a matter that must be assessed in the circumstances of each case. Among other things it will depend on the manner in which the material is electronically organized and formatted and on the circumstances of the accused (¶28).
[38] Also see R. v. Lam, 2004 ABQB 101 (CanLII), [2004] A.J. No. 133 in which the court said the Crown was not required to provide the best available program.
[39] I am sympathetic to counsel who find they are required to deal with new technology and acquire new skills. However, we must all do the same in order to meet the demands of a changing world. See also the comments in R. v. Cheung, 2000 ABPC 86 (CanLII), [2000] AJ No. 704 (Alta. Pr. Ct. (crim. div.)) (¶57 – 59) where the learned judge expressed surprise that a lawyer would not be using a computer in the practice of law. A lawyer may choose to restrict themselves but it should not restrict other counsel. I agree with defence, however, that the judge may have an optimistic view of the time required to become proficient in the use of the computer. (See also R. v. Rose, [2002]Q.J.no. 8339 Quebec Superior Court for similar comments).
[40] The Crown is not obliged to provide counsel with computers or software programs in this case. Those are really part of the cost of doing business and not necessary for the Crown to meet it’s obligation to provide full disclosure. The material is accessible with computers and software that is in common use and readily available.
[41] Defence says that in 5 or 10 years this will not be an issue, but it is an issue today. That may have been true 5 or 10 years ago but not today. It is the experience of many of us at least many of us over a certain age that things change too quickly, sometimes they have changed before we realize it is even happening.
COMPUTER EQUIPMENT FOR INDIVIDUAL ACCUSED
[42] The courts have in some cases ordered the Crown to provide computers for accused. Those have been cases where the accused have been in jail and did not have access to the equipment they required. Here Robb, Urquahart and Anaka had computers in their homes when search warrants were executed and those have been returned to them. Robb and Urquhart both have assets and the means to acquire additional equipment if they require it. In addition, the Crown has offered to make computers available at their offices if necessary. This was considered sufficient in R. v Giroux, [2001] OJ No. 5491.
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