Abel c. R., 2019 QCCS 5832
[32] At this stage, the Court must rule on the following issue: is the disclosure procedure or the restrictions on the disclosure of the evidence imposed by the Crown contrary to its duty to disclose and does it infringe the applicant’s right to make full answer and defence?[10]
[33] The right to the disclosure of evidence is an essential component of the right to make full answer and defence guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.[11] The Crown must disclose all relevant information, in its possession or under its control, to an accused, whether inculpatory or exculpatory, subject to the exercise of the Crown’s discretion to refuse to disclose information that is privileged or plainly irrelevant.[12]
[34] The Crown retains some discretion as to the time, extent and form of disclosure of the evidence. The exercise of this discretion remains subject to control by the trial judge,[13] where the accused is not satisfied with the evidentiary disclosure received. In this context, the Crown does not enjoy the same protection as that afforded during a judicial review of its prosecutorial discretion.[14]
[35] In this case, the Crown has made the evidence available to the applicant and his counsel, on certain conditions and as long as it is examined on the premises of the Sûreté du Québec.
[36] Here, counsel for the applicant may examine a copy of the material as many times as necessary, take notes while viewing the material, be accompanied by another lawyer while viewing the material to get a second opinion, and has access to a private room upon request for confidential discussions on site with his client. The expert retained by the defence, who will also be required to conduct his analyses on the premises of the Sûreté du Québec, will be able to export the activity reports, lists of files and histories created or found to a CD in order to complete and draft a report at his place of business.[15]
[37] Therefore, this is not a situation where the Crown is refusing to disclose the evidence; at the hearing, the Crown noted that at all times it was prepared to provide access to the required material. The applicant, however, objected to being subject to the proposed conditions, arguing that they interfered with the performance of his counsel’s mandate and that they deprived him of full answer and defence.
[38] It should be noted that the applicant’s right to disclosure of the evidence is not equivalent to an absolute right to obtain identical copies of the material. The Crown is not obliged to disclose the evidence in the exact format sought by the applicant, but it must provide him with the relevant information.[16]
[39] In exceptional cases, it can be sufficient, even in the interests of justice, to provide access only to the material sought, and not to provide a copy of it. The Crown can exercise some discretion in this respect, so long as the accused is able to make full answer and defence:
[93] Ordinarily, disclosure is achieved by providing photographs, photocopies or electronic copies of documents or things capable of reproduction: Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, the Hon. G. Arthur Martin, Chair (Ontario: Queen’s Printer, 1993), at pp. 234-35, 470-72, recommendation 41.12 (the “Martin Report”). This is arguably what Sopinka J. envisaged in Stinchcombe when he spoke, at p. 338, of “[p]roduction to the defence”. Yet some things, such as pornographic images of children, should not be copied. Other information may be too sensitive to lose control over. In these exceptional cases, where it is in the interests of justice to do so, inspection by the defence may have to do: R. v. Blencowe (1997), 1997 CanLII 12287 (ON SC), 35 O.R. (3d) 536 (Gen. Div.), at p. 44.
[94] The Crown therefore has discretion as to the manner in which disclosure is made. That discretion is not unbridled. The first principle is that disclosure must be meaningful, in the sense that it is adequate to enable the accused to make full answer and defence: R. v. Pan, 2014 ONSC 4645, 2014 CanLII 74050, at paras. 72-75. This requires that disclosure must be accessible. The disclosed information must be capable of identification and the disclosure must enable proper trial preparation: R. v. Dunn (2009), 2009 CanLII 75397 (ON SC), 251 C.C.C. (3d) 384 (Ont. S.C.). To enable full answer and defence, the accused must also have the means to access the disclosed information in court, as needed.[17]
[Emphasis added.]
[40] Therefore, the case law consistently recognizes that there are situations where the Crown can attach conditions or restrictions on the disclosure of evidence, without infringing the accused’s right to the disclosure of the evidence and to make full answer and defence, or rendering the accused’s trial unfair.[18]
While disclosure is now a constitutional right, it is not disclosure as such that is guaranteed, but disclosure as part of or the means of securing the fairness of the trial and the right of the accused to make full answer and defence. The obligation to disclose is not absolute. My concern in this application is, therefore, whether the trust condition affects the right of the applicant to make full answer and defence. Some means of disclosure may be preferred by the accused over others, but, if there is no adverse effect on the fairness of the trial, the manner of disclosure is not a Charter violation.[19]
[41] For example, in O. (W.A.), [20] the Court of Appeal for Saskatchewan found that the Crown exercised its discretion appropriately when it refused to provide the appellant with a copy of a videotape containing images of the sexual assault that gave rise to the charges brought against him. Counsel for the appellant was informed of the existence and the contents of the recording and he was invited to examine it in private, at his office or that of the Crown, in the presence of the appellant and an expert. Other than the inconvenience of having to inspect the recording under the Crown’s conditions, the Court did not perceive any infringement of the appellant’s right to make full answer and defence.
[42] Similarly, in Noël-de-Tilly,[21] the Court of Appeal of Quebec dismissed the application for the transmission of the material alleged to be child pornography contained in the trial record to the firm responsible for preparing the appeal brief. As an alternative, the Crown suggested that counsel for the appellant be allowed to examine the material on the premises of the Sûreté du Québec, to which she consented. The Court dismissed the suggestion in the following terms:
[translation]
[3] Parliament has recognized that child pornography is a social scourge and has enacted strict measures to suppress its use, access and proliferation. That is why the Criminal Code limits the justifications for the possession of this material. It is now up to the courts to ensure that the legislation’s objective is achieved while preserving the procedural and judicial safeguards of the accused.
[4] In this context, due to the public nature of the appeal record, it is clear that these documents, whether filed at trial in paper or electronic format, must not be included in the brief. The Court must be informed, however, of all the aspects relevant to the case, especially if the appellant is contesting the characterization of the material or claiming that its examination is necessary to rule on its submissions.
…
[6] This procedure [the examination in a specially designated room at the station] is not appropriate because it does not respect the principle of judicial independence. The court files are in its the custody, not that of the police. Of course, police officers can be used to protect the evidence, but they do so only at the request of and to support the true custodian, the court clerk.
[7] While it is essential that judges have access to all of the evidence relevant to the outcome of the appeal, it is imperative to avoid the distribution or examination of the pornographic material by third parties. To meet this two-fold objective, the appropriate procedure consists in authorizing the court clerk at the trial stage to transmit the material directly to the clerk of the Court, who will keep it under seal, as his or her counterpart had no doubt done. Thus, this material will be accessible to the panel assigned to the appeal, which can, if necessary, call upon the computer specialists of their choice and determine the procedure that will ensure the confidentiality of the exhibits.
[8] There remains the matter of counsel for the appellant or for the respondent, as the case may be. It has been suggested that counsel go to the police station after making an appointment. In my opinion, this overlooks the fact that since the trial, the documents adduced into evidence have been in the custody of the courts and no longer that of the police. Therefore, counsel would have access to exhibits under seal, but only with the permission and under the supervision of officers of the Court. Although it is possible for officers of the Court to call upon police officers, the responsibility for providing a complete, but fully secure, examination nevertheless falls to the Court clerk, under the supervision of the Chief Justice or a Judge the Chief Justice designates.
[Emphasis added.]
[43] The applicant’s right to disclosure of the evidence and to make full answer and defence is of course crucial, but in this case there are countervailing interests that must be taken into account, including the rights of the victims concerned, namely, their right to privacy, and the risk that highly sensitive material will be disseminated.
[44] The applicant seeks a complete copy of the seized material, without supervision or proposing an expert or a procedure that would allow the risk of dissemination of copies to third parties to be controlled. Counsel for the applicant refuses any interference, arguing that he has the right to be in possession of this evidence. At the hearing, he added that no undue risk of harm would be created if he were to examine a copy of this material at his office on a computer with Internet access because the victims are unknown and the files are freely available on the Internet.
[45] The Court cannot support the applicant’s position.
[46] First, the fact that the victims may be unknown or unidentifiable or that the material is in the public domain and already available on the Internet does not at all mitigate the importance of the victims’ rights and interests. This does not make the risk theoretical, contrary to what the applicant suggests, and the impact on the victims remains very real, as indeed the intervener established at the hearing.[22]
[47] Canadian courts have repeatedly illustrated the repercussions of the dissemination and distribution of child pornography.[23] As noted by LeBel J. in L.M.:[24]
[28] Finally, I note that L.M. disseminated his pornography around the world over the Internet. The use of this medium can have serious consequences for a victim. Once a photograph has been posted on the Web, it can be accessed indefinitely, from anywhere in the world. R.M. will never know whether a pornographic photograph or video in which she appears might not resurface someday.
[48] Next, both considerations relative to the victims’ privacy and the public interest mitigate in favour of imposing conditions on the disclosure of such evidence, while allowing the applicant to exercise his constitutional rights.
[49] In Blencowe,[25] Watt J., then of the Ontario Court of Justice, had before him a motion for the disclosure of evidence, that is, videotapes containing child pornography. It was agreed that the applicant was entitled to the disclosure of the evidence and the debate concerned only the conditions of the disclosure. Referring to the recommendations in the “Martin Committee Report”,[26] the judge concluded:
It may fairly be said that, where a video recording is more likely to be tendered and may be admitted as evidence in criminal proceedings, the committee recommended that disclosure of it be by copy. Private viewing may be permitted, however, where there are countervailing interests of significance which cannot be adequately protected by imposing conditions on disclosure of copies.
There may exist in this case reasonable privacy interests of the children whose activities are depicted in the video recordings. There is also a significant public interest, reflected in the prohibitions of subss. 163.1(2) to (4) of the Criminal Code, in ensuring that no duplication or distribution occurs in the disclosure process.
It is not suggested that the applicant, his counsel and any expert(s) retained by the defence are not entitled to view the video recordings whose contents are said to constitute the offences charged. Prima facie, the applicant is entitled to copies of the disclosure materials.
…
The privacy and public interests which I have identified only warrant disclosure by private viewing if they cannot be satisfied by an appropriate undertaking by defence counsel. The undertaking is not for the purpose of prohibiting or impeding the viewing of the tapes by the applicant, his counsel or any expert retained by the defence. Of that form of disclosure, the prosecutor cannot and does not complain. There is a matter of constitutional entitlement that cannot be swept aside.
It is necessary, however, that the privacy and public interests identified earlier not be further compromised by copying, viewing, circulation or distribution of the tapes beyond what is necessary to give effect to the applicant's constitutional right. The issue is whether, by conditions attached to the disclosure of copies, the desired result and necessary balance can be achieved. I am satisfied that, in this case, it can be.
(d) The conditions of disclosure
To ensure that the privacy interests of the children depicted in the recordings, and the public interest in ensuring that what may be child pornography or obscene is not further distributed, the following conditions shall be included in an undertaking signed by counsel for the applicant before supply of any copy tapes:
[Emphasis added.]
[50] Last, the conditions proposed by the Crown certainly entail inconvenience or irritants for the applicant, his counsel, and the expert they will eventually retain. Other than logistical inconvenience, however, the applicant has not established how his right to make full answer and defence is infringed by the fact that he must examine the evidence on the premises of the Sûreté du Québec rather than receive a complete copy.
[51] Investigator Frédéric Blouin of the Sûreté du Québec’s technology division testified on the various precautions that must be taken when child pornography is examined on the premises of the Sûreté du Québec, and on the feasibility of the expert report in the environment proposed by the Crown. He explained that the examination of the seized files could require half a day’s work for the expert eventually retained by the applicant, whereas an expert report might take one week.
[52] The evidence also establishes that the numerous experts contacted by the applicant did not refuse to accept the mandate because of the Crown’s conditions. The situation is quite different: the list of potential experts who refused to accept the mandate instead involved businesses that, for the most part, do not accept mandates from individuals.[27] Out of the 29 companies listed, 2 refused because they are unable to perform a sufficiently detailed analysis, 14 because they only work with companies or do not work for individuals, 9 because they do not perform analyses or troubleshoot, 1 that does not want to be exposed to this type of material, and 3 because they do not have the required skills or availability.
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