R v Zanolli, 2018 MBCA 66
[61] In Stinchcombe, the Supreme Court established that the Crown has an obligation to disclose all relevant material in its possession to permit the accused to make full answer and defence. The Crown retains some discretion in determining the relevance of the materials, as well as “the manner and timing of the disclosure” (at p 340) (emphasis added).
[62] The manner of disclosure chosen by the Crown must allow for “meaningful examination” (R v V (WJ) (1992), 1992 CanLII 7089 (NL CA), 72 CCC (3d) 97 at 108 (Nfld CA)) of the material by defence counsel and that the manner of disclosure must be regarded as “one of reviewable discretion on the part of Crown counsel” (ibid).
[63] The accused has the burden to establish that the Crown’s disclosure was not meaningful (see R v Oszenaris, 2008 NLCA 53 at para 21, leave to appeal to SCC refused, 32917 (23 April 2009)).
[64] Both the Crown and defence counsel have corresponding obligations regarding disclosure. As explained by Sopinka J in Stinchcombe (at pp 340-41):
The trial judge may also review the Crown’s exercise of discretion as to relevance and interference with the investigation to ensure that the right to make full answer and defence is not violated. I am confident that disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose all relevant information. The tradition of Crown counsel in this country in carrying out their role as “ministers of justice” and not as adversaries has generally been very high. Given this fact, and the obligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention of the trial judge. When they do arise, the trial judge must resolve them.
[emphasis added]
[65] In R v Petten (1993), 1993 CanLII 7763 (NL CA), 81 CCC (3d) 347 (Nfld SC (AD)), Gushue JA, for the Court, addressed the obligation of defence counsel (at p 350):
The defence must be made aware of the existence of all such information, inculpatory or exculpatory, but, initially at least, the Crown may exercise a discretion as to what information will be released, as well as the form that release will take. If the defence is unhappy with either of those and no accommodation can be reached between it and the prosecution, then the defence has the undoubted right to make a pre-trial application to the court for it to make the appropriate determination with respect to disclosure and the manner thereof.
[emphasis added]
[66] In Dixon, the Supreme Court discussed the role of defence counsel in the disclosure process and the importance of defence counsel “diligently pursu[ing] disclosure” (at para 37) rather than remaining passive.
[67] The accused argues that the Crown’s disclosure was inadequate because the Crown did not alert defence counsel to the second video and provide him with the software to view the G64 files, or alternatively, provide an upfront offer to utilize the Crown’s video player software. The specific issue is whether the Crown’s disclosure of the second video in the G64 file format satisfied its constitutional disclosure obligations.
[68] Electronic disclosure is meaningful if it is “reasonably accessible - a matter to be assessed in . . . each case” (Oszenaris at para 19). Whether a particular form of electronic disclosure satisfies the Crown’s obligation in any given case will depend on the circumstances of the particular case. A significant consideration is how the electronic information is organised and formatted (ibid). As well, the circumstances of the accused person or his/her counsel can be a consideration. For example, access to a computer can be relevant. However, general concerns about computer literacy are not sufficient to establish a section 7 Charter infringement (ibid). See also R v Grant, Donovan and Amos, 2003 MBQB 237 and R v Piaskowski et al, 2007 MBQB 68 for helpful discussions of the general principles for assessing the adequacy of electronic disclosure.
[69] In R v Barbour, 2017 ABCA 231, the appellant, who was self-represented at trial, argued that she did not receive “effective” (at para 11) disclosure. The Court of Appeal disagreed. She had been given full, electronic disclosure personally and through her previous defence counsel, but had failed to fully review it, and had failed to advise the Crown about alleged difficulties she had in viewing some of the files on her computer. In determining that the Crown had discharged its disclosure obligations, the Court of Appeal reviewed the obligation of an accused person in relation to disclosure, particularly in electronic format (at para 32):
An accused person is entitled to full disclosure, but an accused person also has some obligation to exercise reasonable diligence in making full answer and defence:
(a) Once disclosure is obtained, the accused has an obligation to review that disclosure, and identify anything that appears to be missing. The defence must “exercise due diligence in actively seeking and pursuing Crown disclosure”: Dixon at para. 37; Stinchcombe at p. 341;
. . .
(c) The Crown is entitled to make disclosure in electronic form, so long as the material is reasonably organized and indexed, using any reasonably available software configuration: R. v. Oszenaris, 2008 NLCA 53 at paras. 19-20, 236 CCC (3d) 476 leave to appeal refused [2009] 1 SCR xii; R. v. Beckett, 2014 BCSC 731 at paras. 7-8. The accused person receiving disclosure must act reasonably in obtaining access to the information. The appellant’s argument that as early as 2013 she had trouble accessing the information using her Mac computer does not demonstrate due diligence, and certainly was not evidence of a failure by the Crown to make disclosure by the time of trial in September 2015.
. . .
The failure of the appellant and her counsel to read and retain the disclosure does not demonstrate any breach of the Crown's obligation to disclose.
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