R. v. Beauchamp, 2008 CanLII 27481 (ON SC)
[39] While I found that the Crown could not refuse to provide disclosure to the defence of the encrypted information solely on the basis that it does not have the complete possession or control of the information on the encrypted hard drives, I find the fact that the Crown has only partial control of the information is a contextual factor to be weighed and considered when deciding if the failure to disclose information denies the accused their right to a fundamentally fair trial.
[40] The seizure by the police of the hard drives containing encrypted information is similar to the seizure of a locked safe which the police cannot open, containing documents which include both inculpatory and exculpatory evidence. The police or Crown would clearly be in possession or control of the safe, but if they did not have the key or combination and were unable to break the safe open, then they would not have knowledge of the contents of the safe. In this case, the Crown’s control of the contents of the safe, which are known to one accused but not to the Crown, is not complete, as the Crown needs the key or combination, or in this case the password, in order to access the documents in the safe. The unique feature of this case is that the accused Cattral has the key or password, which is necessary to complete the possession or control of the information in the safe.
[41] This situation is quite different from the facts in Stinchcombe where the Crown had knowledge of the contents of the statement and had the statement fully within its possession, and the accused did not know the contents or have possession of the statement. Since the Crown is unable to access the information contained in the encrypted portion of the hard drives, the information would not be part of the “case to meet” and the Crown would be without any advantage and would not possess any more information than the accused. I find that the above situation would not offend a reasonable person’s sense of decency and fair play as the Crown has disclosed all of the information within its knowledge, which is consistent with a fair trial.
[48] As a result I find that the failure to order the Crown to disclose a copy of encrypted information, which it will not use as part of the “case to meet”, where the accused has knowledge of the information contained in the encrypted files and has not particularized what encrypted information he reasonably requires for his defence or how the information sought to be disclosed related to his defence, would not result in an unfair trial.
[62] In this case, I find that providing a copy of the encrypted hard drives to defence counsel on their undertaking would not adequately address the principles of ensuring a fundamentally fair trial and maintaining to the integrity of the administration justice for the following reasons:
a) One of the applicants, Cattral, is self-represented and would not be bound by any undertaking by counsel.
b) Cattral and Brunet are the persons who I infer are able to access the encrypted information in the hard drives seized from the business premises and Cattral only for the hard drives seized from his residence.
c) There is no evidence that defence counsel have access to the password in order to access the encrypted information.
d) The Crown is unable to review the information and fulfill its duty to the public to exercise its discretion to protect individuals’ privacy interests and the integrity of the administration of justice by preventing further criminal activity for reasons previously given if access is given to Cattral who is unrepresented.
e) The Court is unable to review the Crown’s exercise of its discretion as discussed above and both the Crown and the Court are unable to ensure that the integrity of the administration of justice is maintained by ensuring that the privacy interests of individuals is protected and that no further criminal act is committed or facilitated by a court order.
f) The other co-accused persons would not receive disclosure of the encrypted information as Cattral and Brunet are the only accused persons who can access the encrypted information.
Disposition
[65] For the reasons given above, the application for disclosure of a copy of the encrypted files in the hard drives is refused. The applicants may, at their option, obtain disclosure of the contents if they provide the password or key to the Crown and the Crown would then review the material, exercise its discretion, subject to review by the Court as mandated in Stinchcombe. The matter would then be dealt with either as agreed or with a further order from the Court.
[66] The Crown has not sought and I am not ordering any accused party to reveal the password or key to the Crown to allow it to access the encrypted information contained on the hard drives, as under Stinchcombe the defence has no obligation to assist the Crown prosecution and is entitled to be adversarial.
Aucun commentaire:
Publier un commentaire