Les principes juridiques relatifs à la communication de la preuve qui est volumineuse

R. v. Piaskowski et al, 2007 MBQB 68

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[84]         Having had a chance to review the voluminous materials filed in this matter I conclude the following principles apply:

1.     What constitutes disclosure in a particular case depends on the facts of the case and the circumstances of the accused. 

2.     The Crown’s disclosure obligation requires that it must make known to an accused all relevant materials in its possession or under its control.

3.     The Crown has an obligation and a reviewable discretion to determine what is relevant, and counsel for the Crown may rely on the advice and opinion of investigators in determining relevancy in the case where materials are voluminous. 

4.     The Crown must disclose materials in a manner which the accused can reasonably access. 

5.     Where an accused is represented by counsel; electronic disclosure is not objectionable merely because of counsel’s lack of computer skills unless it can be shown that access to the materials would be beyond the competence of the average reasonably skilled person. 

6.     Where the Crown wishes to make electronic disclosure as opposed to paper disclosure, the Crown has a further obligation to assist counsel lacking familiarity with the software utilized, and an unrepresented accused who bona fide has limited or no computer skills with reasonable access to materials that form part of the disclosure.  This further obligation may range from training on the use of the software through the provision of computer equipment and may include the obligation to provide paper copies of all disclosure.  This would depend on the circumstances of each case. 

7.     Electronic disclosure must permit counsel to be able to print copies of the documents and images in a readable manner so as to be able to communicate effectively with his or her client. 

8.     The expense to the Crown of providing hardcopies of the documents is a factor the court can take into account in determining whether electronic disclosure is reasonable, but it cannot trump the accused’s right to a fair trial. 

9.     If the cost of producing hardcopies of the electronic documents interferes with the accused’s ability to make full answer and defence, the court can order the Crown to provide hardcopies of electronic disclosure at Crown expense.