[28] The fundamental principles governing disclosure laid out by the Supreme Court of Canada in Stinchcombe apply to electronic disclosure. It is a principle of fundamental justice that an accused person is entitled to disclosure of all relevant information in the possession or control of the Crown relating to the investigation of the accused person. This is necessary to allow the accused person to make full answer and defence: Stinchcombe, at paras. 7 and 22.
[29] Although the Crown has the discretion to determine the manner in which disclosure is made, the disclosure must be meaningful to allow the accused person to make full answer and defence: York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, at para. 94. The exercise of that discretion is reviewable by the Court: Stinchcombe, at para. 21.
[30] The Crown is not required to provide perfect disclosure, or disclosure in the format preferred by the accused person, or even in the most user-friendly format: R. v. Grant, 2003 MBQB 237, at para. 43; R. v. Jennings, 2017 ABQB 288, at para.10; R. v. Greer, 2006 BCSC 1894, at para. 23, citing R. v. Lam, 2004 ABQB 101. As long as the Crown has provided meaningful disclosure, the Court ought not to interfere with the Crown’s discretion.
[31] The jurisprudence has identified the following characteristics of meaningful disclosure:
1) It must be accessible: York (Regional Municipality) v. McGuigan, at para. 94. In the context of electronic disclosure, this means that it must be organized and searchable: R. v. Dunn, 2009 CanLII 75397 (ON SC), [2009] O.J. No. 5749 (S.C.), at para. 61; R. v. Beckett, 2014 BCSC 731, at para. 8.
2) The information disclosed must be capable of identification: York (Regional Municipality) v. McGuigan, at para. 94.
3) It must enable proper trial preparation: York (Regional Municipality) v. McGuigan, at para. 94.
4) The accused person must be able to access the disclosed information in court, if necessary: York (Regional Municipality) v. McGuigan, at para. 94.
[32] The question of whether electronic disclosure is meaningful must be considered in the context of all of the circumstances of the case. Is the accused person able to access it? How well organized is it? How searchable is it? How voluminous is it? As Boswell J. noted in Dunn at para. 59, “the importance of organization and searchability increases proportionately with the volume of material disclosed”.
[33] When reviewing the facts and circumstances of the case to determine whether the Crown has fulfilled its disclosure obligation under Stinchcombe, the Court must balance the Crown’s duty to disclose with the difficulties of providing such disclosure. Consideration must be given to the time and expense required to provide the disclosure in a case involving voluminous amounts of material: Grant, at para. 21 citing R. v. Chow, 2001 BCSC 845 (CanLII), [2001] B.C.J. No. 2938 (S.C.).
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