Le devoir de la poursuite de fournir un inventaire déclarant les renseignements non divulgués en sa possession

R. v. Pereira, 2007 BCSC 1533 (CanLII)

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[57]           The Crown must make the defence aware of the existence and nature of the information which it refuses to disclose in order for the defence to be in a position to seek a review:  see R. v. Petten (1993), 1993 CanLII 7763 (NL CA), 110 Nfld. & P.E.I.R. 84, 81 C.C.C. (3d) 347 (Nfld. C.A.).  In O’Connor at para. 139; R. v. Barbosa (1994), 1994 CanLII 7549 (ON SC), 92 C.C.C. (3d) 131 at 136, 24 W.C.B. (2d) 453(Ont. Ct. (Gen. Div.)); and R. v. Laporte (1993), 1993 CanLII 9145 (SK CA), 84 C.C.C. (3d) 343 at 350, 113 Sask.R. 34 (Sask. C.A.) [Laportecited to C.C.C.], the court suggests that the Crown should produce a written itemized inventory of the information in its possession and identify those it intends to disclose or has disclosed and those which it does not intend to disclose.  The latter should be accompanied by a statement of the basis upon which the Crown seeks to withhold disclosure.

[58]           The Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions(Toronto: Ontario Queen’s Printer, 1993) issued by the Ministry of the Attorney General in Ontario contains a number of general recommendations with respect to disclosure.  At 206-208 of the Report, Recommendation 16 and the subsequent commentary state:

16. Crown counsel shall advise the defence of any decision made not to disclose information in his or her possession that should otherwise be disclosed, and the importance of that information.  Crown counsel shall also advise the defence of the specific nature of the information in his or her possession which is not disclosed, unless disclosure of the nature of the information withheld would reveal the identity of an informer, jeopardize anyone’s safety or security or subject them to harassment, compromise an ongoing investigation, or reveal police investigative techniques.  Upon request, Crown counsel shall take any other steps reasonably necessary to facilitate a review by the trial judge or any decision not to disclose. [emphasis in original]

Commentary

Crown counsel must specify the nature of the material in his or her possession that is withheld on the ground of relevance only.  This paragraph does not require Crown counsel to review the entire police investigative file as a matter of course, but rather addresses information in counsel’s possession... Identifying the nature of the material withheld does not require detailed summaries of that material, as this is impractical, particularly in cases with voluminous irrelevant material.  Further, requiring a detailed summary may undermine the discretion to withhold.  A description of the type of material withheld will suffice.

[59]           Some of the suggestions made in this recommendation would seem to have been adopted in R. v. Siemens (F.) (1998), 1998 ABCA 1 (CanLII), 209 A.R. 375, 122 C.C.C. (3d) 552 (Alta. C.A.) [Siemens cited to A.R.].  As in the case at bar, the Crown was concerned about disclosing third party intercepts in Siemens.  The trial judge ordered the Crown to listen to all the wiretap tapes (estimated to take eight 40-hour work weeks) and to advise the court, among other things, whether each conversation was clearly irrelevant.  The Alberta Court of Appeal held that the Crown was not required to undertake such an onerous task.  In allowing the Crown’s appeal from a judicial stay of proceedings from the Crown’s refusal to undertake this task, the court stated at paras. 30-32:

While it is clear that Crown counsel has ultimate responsibility for decisions regarding relevance and disclosure of evidence in the possession of the Crown, that in our view does not include a requirement that Crown counsel personally examine and catalogue every item of evidence, every statement, every document, etc., that has been gathered by the police in the course of investigation, or which may be held by other state agencies, to fulfil his or her duty to the accused and the court.

We recognize that the imposition of such a duty on Crown counsel would create an impossible situation in many cases, such as the present.  It is not only in wiretap cases that the Crown must rely on other agencies to make determinations as to relevance of information and provide the Crown with summaries of information which is gathered in the course of an investigation.  Police conduct searches, and decide what evidence is to be seized.  They provide descriptions of the physical evidence, not the item of evidence itself. In commercial cases, police officers and other staff inspect large volumes of documents and provide resumes to the Crown.  They interview witnesses and provide statements, notes or will say outlines. If the current ruling of the trial judge stands and Crown counsel may only make disclosure decisions based on personal inspection and knowledge of all evidence, the system will grind to a halt.  All searches, witness interviews and investigations will have to be conducted by Crown lawyers so that they, from their own personal knowledge, can say that all relevant evidence has been disclosed.

We see no need for Crown counsel to personally spend days or weeks listening to lengthy tapes, or inspecting documents and other evidence to fulfil the duty of disclosure.  Crown counsel is entitled to rely on information provided to him or her by police officers and other staff members regarding the content of documents, especially those considered to have no relevance to proceedings.  While the law regarding disclosure deals with obligations of the Crown and speaks of breaches of ethical duties for failure to disclose relevant materials, nothing which we have found in the authorities requires that the burden of examining and cataloguing evidence be assumed by a Crown lawyer.

La divulgation électronique de la preuve

R. v. Pereira, 2007 BCSC 1533 (CanLII)

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[60]           Crown counsel submits that the main issue to be decided on this voir dire is whether I should interfere with the Crown’s exercise of its discretion with respect to the manner of disclosure.  I will therefore discuss some of the law with respect to the manner of disclosure.

[61]           In a very helpful analysis, Sinclair J. summarizes the law of electronic disclosure in R. v. Piaskowski, 2007 MBQB 68 (CanLII), [2007] 5 W.W.R. 323 at paras. 21-28:

There are cases which have held that electronic disclosure is an acceptable form of disclosure while others have held otherwise. The general principle, as will be seen, seems to be that electronic disclosure is not per se objectionable so long as the accused can reasonably access the electronic materials. The principle arises from the cases of R. v. Therrien, 2005 BCSC 592 (CanLII), 2005 BCSC 592 (B.C.S.C.); R. v. Greer, 2006 BCSC 1894 (CanLII), 2006 BCSC 1894 (B.C.S.C.); and R. c. Cazzetta [R. c. Cazzetta, 1998 Carswell-Que 4537 (Que. S.C.)] (October 26, 1998), (Que. S.C., Crim. Div.) [unreported].

In R. v. Therrien, supra, the British Columbia Supreme Court found that the Crown disclosure obligation included the requirement to provide disclosure to an accused which he can reasonably access. The court held that the fact that some electronic disclosure may have to be converted ultimately to hardcopy does not mean that electronic disclosure has not been meaningful.

Recently in R. v. Greer, supra, the British Columbia Supreme Court again had to determine if the Crown could meet its disclosure obligation by providing electronic copies of documents as opposed to paper copies. The court referred to the case of R. v. Barges, [2005] O.J. No. 4137 (Ont. S.C.J.), in holding that so long as the disclosure is reasonably accessible the court should not interfere with the Crown’s discretion as to how it is organized. The choice between electronic and paper disclosure was one that the court found the Crown had the right to exercise so long as the accused could reasonably access the material to make full answer and defence.

In the 1993 Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (“the Martin Report”), the report’s authors stated at pp. 191, 192:

As a practical matter, the Committee recognizes that disclosure in writing is usually the most efficient method of according an accused his or her constitutional rights.  The detailed recommendations that follow speak, for the most part, of providing copies of relevant material.  Most information relevant to any particular prosecution is accumulated in some written form, and, therefore, can be readily photocopied and provided.  Written disclosure, with a record kept of what documents have been disclosed, can also greatly reduce the potential for later misunderstandings about what has and has not been disclosed.  Written disclosure is also convenient for both parties.  Defence counsel can review the material in a convenient fashion and, wherever necessary, do so in consultation with the client; Crown counsel can review the same material conveniently, confident that no disclosure issue with respect to the information contained in that material will arise at trial.

While the Committee recognizes that, as a practical matter, disclosure will, in most cases, be accomplished in writing, there is, in the Committee’s view, no inflexible constitutional obligation to provide disclosure in this manner.  As a constitutional requirement, “disclosure” retains its plain and ordinary meaning:  it is not necessarily synonymous with providing copies. ...

The Martin Report refers to a decision of the Ontario Court of Appeal in R. v. Collier, [1992] O.J. No. 2411 (Ont. C.A.), where the court held as follows:

... Proper disclosure of the reports did not necessitate providing copies of the reports, particularly in the absence of any suggestion that copies were requested ....The Crown could fulfill its obligation to disclose all material in the reports without actually providing copies to the defence. In so holding, we do not suggest that defence counsel would not be entitled to copies of the actual reports if requested, .... We mean only that non-disclosure cannot be equated with a failure to provide copies of the actual reports.

In R. c. Cazzetta, Côté J. said at p. 5:

In my opinion there is no set method of disclosure, and it would not be appropriate to hold that the duty must be discharged in any particular form. ...

Cases dealing with electronic disclosure where courts have held that the electronic disclosure offered by the Crown does not meet the Crown’s disclosure obligation imposed by the Charter include R. v. Obront (1998), 39 W.C.B. (3d) 340, [1998 CarswellOnt 6424 (Ont. Prov. Div.)], R. v. Cheung, 2000 ABPC 86 (CanLII), [2000] A.J. No. 704 (Alta. Prov. Ct.), R. v. Cassidy, [2001] O.J. No. 5669 (Ont. S.C.J.), R. v. Hallstone Products Ltd., 1999 CanLII 15107 (ON SC), [1999] O.J. No. 4308 (Ont. S.C.J.), and R. v. Blencowe, 1997 CanLII 12287 (ON SC), [1997] O.J. No. 3619, 35 O.R. (3d) 536, 46 C.R.R. (2d) 175, 118 C.C.C. (3d) 529, 9 C.R. (5^th) 320 (Ont. Gen. Div.), R. v. Bigge, 2004 SKQB 500 (CanLII), [2004] S.J. No. 856 (Sask. Q.B.), R. v. Jarvie, [2003] O.J. No. 5570 (Ont. S.C.J.), R. v. Chow, 2001 BCSC 845 (CanLII), [2001] B.C.J. No. 2938 (B.C.S.C.), and R. v. Jonsson, 2000 SKQB 377 (CanLII), [2000] S.J. No. 571 (Sask. Q.B.).

In R. v. Obront, supra, the judge directed the Crown to provide hardcopies of all of the electronic disclosure and made the following comments:

¶87 . . . The general attitude of the defence counsel is to this effect: Primarily, they received electronic disclosure, or electronic reproductions of the original documents, of which some have some working knowledge, of which other[s] admittedly have no working knowledge as to how to reproduce these electronic productions in order that they can not only satisfy themselves and educate themselves as to the Crown’s position, but to generally discuss the matters with their respective clients to obtain instructions and directions from their clients as to whether or not admissions can be made, or as to defences that they may have in regards to these documents, or as to information so they can generally cross-examine the witnesses that may be called by the Crown.  To put defence counsel in such a position that they would have to either retrain, or to have their clients assume inordinate expense to have someone else reproduce all these documents would be unfair.  I am going to order that the Crown produce, as they have in the past, the documents that have been seized in this matter and upon which they are going to be depending on in the prosecution of this matter as against all the accused.

[62]           In R. v. Oszenaris, 2007 NLTD 126 (CanLII), [2007] N.J. No. 236 (QL) (Nfld. S.C.), Dunn J. conducted a thorough review of the law and pointed out that disclosure materials must be made available in a manner so that the defence may conduct a meaningful examination of them.

[63]           Beard J. stated in Grant that disclosure need not be provided in a perfect manner, but it needs to be done fairly in order for the accused to make full answer and defence.  She stated at paras. 42-43:

…In the case of voice recordings or videotapes, it can include providing transcripts, summaries or copies of the recordings, or by making the originals available at a central location.  In the case of documents, it can be by providing copies, summaries, an index, or by making the originals available.  Part of the discretion of the crown in providing disclosure, subject to review by the courts, is to determine how it is to be done, keeping in mind expense to the crown, the time required to prepare summaries, copies, transcripts, etc., public interest concerns and privacy interests.  Determining what constitutes full disclosure is a balancing act between the rights of the accused, the rights of others affected by the proceeding and the need for a workable criminal justice system.  This balancing was described by McLachlin J., in O’Connor as follows:

“[192]  Discovery on criminal cases must always be a compromise.  On the one hand stands the accused’s right to a fair trial.  On the other stands a variety of contrary considerations.  One of these contrary considerations is the protection of privacy of third parties who find themselves, through no fault of their own, caught up in the criminal process.  Another is the increase in the length and complexity of trials which exhaustive discovery proceedings may introduce.  Both impact adversely and heavily on the public.

“[193]  The task before us on this appeal is to devise a test for the production of records held by third parties which preserves the right of an accused to a fair trial while respecting individual and public interest in privacy and the efficient administration of justice.  The key to achieving this lies in recognition that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair.  ...  What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered.  Perfection in justice is as chimeric as perfection in any other social agency.  What the law demands is not perfect justice, but fundamentally fair justice.

“[194]  Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence.  From the accused’s perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness.  When other perspectives are considered, however, the picture changes.  The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system - all these point to a more realistic standard of disclosure consistent with fundamental fairness.  That, and nothing more, is what the law requires.”

As is succinctly noted in R. v. Chow (K.C.S) et al., 2001 BCSC 483 (CanLII), [2001] B.C.T.C. 483, [2001] B.C.J. No. 2938 (S.C.), there is a need to balance the duty to disclose and the difficulties associated therewith, particularly in a trial involving a large amount of disclosure.  Therefore, while the disclosure does not have to be perfect, at the end of the day it does have to be fair and sufficient for the accused to make full answer and defence while at the same time balancing the duty to disclose and the difficulties associated with providing that disclosure, particularly in a trial involving a large amount of disclosure.

Revue jurisprudentielle quant à la divulgation de la preuve électronique

R. v. Greer et al, 2006 BCSC 1894 (CanLII)

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[9]               The Crown is obligated to make meaningful disclosure but has a discretion to decide how to do that.  The discretion is reviewable by the court (See: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326).

[10]            The accused must be able to reasonably access the material to make full answer and defence.  This is necessary to ensure the accused has a fair trial (See: R. v. Therrien, 2005 BCSC 592 (CanLII), ¶ 36).

[11]            Whether it is reasonably accessible depends on how it is organized and on the circumstances  of the defence (Therrien, R. v. Mercier, [1994] A.Q. no. 240 qt ¶41, R. v. Amzallag [1999] Q.J. No. 6252 at ¶22).

[12]           However, if the disclosure is reasonably accessible, the court should not interfere with the Crown’s discretion about how the material is organised just because there is a different way of doing so. The purpose of the disclosure is to ensure the accused has the information required to make full answer and defence (R. v Barges, [2005] O.J. No. 4137).

[13]            The defence refers to Amzallag, but I point out it is a 1999 decision and the use of computers is much more prevalent now. The disclosure software was termed so inadequate that an expert programmer would not use it to have access to the information (¶4).  This seems to have been remedied (¶6).  Even in that case it does not appear that all the disclosure was ordered in hard copy.  

[14]            At ¶24 on the other hand, the rest of the evidence that was furnished to the defence in the form of CD-ROMS is considered valid since the hard copies that petitioners are requesting are part of the past disclosure and such costs must be borne by Petitioners.

[15]            The decision R. v. Ivarluk, 2005 NUCJ 5 (CanLII), [2005] Nu.J. No. 5 was decided based on the special circumstances of circuit courts in remote locations in Nunavut.

[16]            The decision R. v. Felderhof, [1999] O.J. No. 5107 is so brief as to provide no insight as to the circumstances.

[17]           The decision R. v. Mah, 2001 ABQB 322 (CanLII), [2001] A.J. No. 516 is distinguishable because there the Crown had provided no search engine to allow reasonable access to the data. The hard copy that was provided was not orderly or workable. The disclosure was insufficient to allow the def to make full answer and defence.

[18]            In R. v. Grant, [2003] M.J. No. 382 the accused were in jail and the material disclosed required computers and in some cases special viewing equipment some of which was obsolete.

[19]            R. v. Hallstone Products Ltd., 1999 CanLII 15107 (ON SC), [1999] O.J. No. 4308 is distinguishable because in that case the electronic disclosure was so defective that even with computers, software and assistance it could not be properly searched.

[20]            R v. Mah,2001 ABQB 322 (CanLII), [2001] A.J. No. 516 (Alta QB) and R. v. Jarvie, [2003] O.J. No. 5570 (Ont. Sup. Ct. of Justice)and R. v. Foy, [2001] O.J. No. 617(Ont. Sup. Ct. of Justice) are also cases where the electronic disclosure  was so poorly organized  that it failed to meet the Crown’s obligation to make reasonable disclosure.

[21]            In our case the Crown and the police have gone to a great deal of time and expense to provide disclosure in a form which will be of assistance to defence counsel and the accused to deal with an otherwise overwhelming amount of material.

[22]            Defence argues that the decision in Therrien was not in line with other Canadian authorities where it requires counsel to provide their own computer and software at their own cost.  However, the cases the defendants refer to are dated or distinguishable. I find that Therrien is correct and applicable to the situation before me.

[23]           R. v. Lam, 2004 ABQB 101 (CanLII), [2004] A.J. No. 133 (Alta. Q.B.0 is a case where the court denied the defence request for a computer program that provided better searching capabilities and the ability to note up the documents. The Crown had met it’s obligation to provide reasonable disclosure. The court did not follow R. v Mah saying that it was based on the unique circumstances of that case and did not lay down any general principals. The court said:

Where disclosure is provided in electronic form, the Crown’s obligation does not extend to providing with the disclosure the best available tools so long as the tools provided permit a reasonable level of access to each element of the disclosure. (¶20)

ANALYSIS

[24]           The disclosure here is in a form which does allow easy access with the use of computers and software that is readily available and usable by the public. This includes main folders with primary evidence including audio and video recordings of statements, audio of some intercepted communications and video of some searches, ledgers, police tip files and reports to Crown counsel. The reports to Crown counsel dealing with the investigated vehicles provide summaries of and links to the evidence. The Crown will do some additional organizing of the material to make some of it more accessible. The organization helps both the defence and the Crown.

[25]            Some instruction on the way in which the material is organized and techniques for searching the hard drive is all that is necessary to allow the defendants to find their way around the data base.  This is far easier than trying to go through 250,000 pages even if they are tabbed and bound.

[26]           The cost of producing hard copies would be $25,000 to $30,000 per copy. This is a major investigation and the liberty of the accused is at risk. The cost is one factor, but does not take priority over the right of the accused to full disclosure. It would also take an unreasonable amount of time to produce a hard copy. The estimate is 7 hours a day for 42 days, per copy.

[28]            Mr. Anaka was able to negotiate financial assistance from the provincial government.  It is not clear why he did not qualify for legal aid.  However, to obtain the funding he did he had to satisfy the province that he was unable to pay the costs of a lawyer for this case.  It is not clear on the evidence what his financial circumstances are.  He may or may not be able to pay for his own computer.  His counsel has received the hard drive disclosure and I am satisfied that the Crown has met it’s obligation to make disclosure.  There is no basis for me to order the Crown to provide Mr. Anaka with a computer.  It is not clear that he has no access to a computer.

[31]           In Therrien, the court recognized that counsel often, if not invariably, print copies of some of the electronic disclosure.  The court recognized that this is often necessary to suit counsel’s particular needs and preferences.  However, the court said that it does not follow from that fact that it may be necessary to create hard copies for some, but frequently not all of the materials in electronic format that disclosure in that format is insufficient to satisfy the constitutional common law obligations of the Crown to provide disclosure (¶26-27).

[33]             I recognise this would require a printer and the necessary paper and ink. However, Crown’s obligation to provide disclosure is to provide the disclosure in a format that is accessible to the accused, not in a format that is the easiest for counsel to use for trial or in the fashion they prefer.  Disclosure is a compromise that requires a balancing of the duty to disclose and the difficulty of providing disclosure.

[34]           In R. v. Grant, [2003] M.J. No. 382  referring O’Connor, the court said:

 … part of the discretion of the Crown in providing disclosure subject to review by the courts is to determine how it is to be done, keeping in mind expense to the Crown the time required to prepare summaries copies transcript etc. and public interest concerns and privacy interests. Determining what constitutes full disclosure is a balancing act between the rights of the accused, the rights of others affected by the proceeding and the need for a workable criminal justice system. (¶42)

[35]           This is similar to the comments of Madam Justice McLachlin, as she then was, in O’Connor at p.192 – 193 where she talks about discovery in a criminal case always being a compromise.  She also said that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials but rather a trial which is fundamentally fair.

[36]            In Grant, the court asked if the Crown had any obligation to provide disclosure in any particular form and said what constitutes full disclosure depends on the facts of the case and the circumstances of the accused (¶37).

[37]           In Therrien, the court said that whether electronic disclosure is reasonably accessible is a matter that must be assessed in the circumstances of each case. Among other things it will depend on the manner in which the material is electronically organized and formatted and on the circumstances of the accused (¶28).

[38]            Also see R. v. Lam, 2004 ABQB 101 (CanLII), [2004] A.J. No. 133 in which the court said the Crown was not required to provide the best available program.

[39]            I am sympathetic to counsel who find they are required to deal with new technology and acquire new skills.  However, we must all do the same in order to meet the demands of a changing world.  See also the comments in R. v. Cheung, 2000 ABPC 86 (CanLII), [2000] AJ No. 704 (Alta. Pr. Ct. (crim. div.)) (¶57 – 59) where the learned judge expressed surprise that a lawyer would not be using a computer in the practice of law.  A lawyer may choose to restrict themselves but it should not restrict other counsel.  I agree with defence, however, that the judge may have an optimistic view of the time required to become proficient in the use of the computer.  (See also R. v. Rose, [2002]Q.J.no. 8339 Quebec Superior Court for similar comments).

[40]            The Crown is not obliged to provide counsel with computers or software programs in this case. Those are really part of the cost of doing business and not necessary for the Crown to meet it’s obligation to provide full disclosure. The material is accessible with computers and software that is in common use and readily available.

[41]            Defence says that in 5 or 10 years this will not be an issue, but it is an issue today.  That may have been true 5 or 10 years ago but not today.  It is the experience of many of us at least many of us over a certain age that things change too quickly, sometimes they have changed before we realize it is even happening.

COMPUTER EQUIPMENT FOR INDIVIDUAL ACCUSED

[42]            The courts have in some cases ordered the Crown to provide computers for accused.  Those have been cases where the accused have been in jail and did not have access to the equipment they required.  Here Robb, Urquahart and Anaka had computers in their homes when search warrants were executed and those have been returned to them.  Robb and Urquhart both have assets and the means to acquire additional equipment if they require it.  In addition, the Crown has offered to make computers available at their offices if necessary.  This was considered sufficient in R. v Giroux, [2001] OJ No. 5491.

La diligence de l'avocat de la défense vs l'obligation de divulgation du poursuivant

R. v Barbour, 2017 ABCA 231 (CanLII)

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[31]           It is not disputed that the Crown has an obligation to disclose all relevant material to the accused: R. v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326; World Bank Group v Wallace, 2016 SCC 15 (CanLII) at paras. 112-5, [2016] 1 SCR 207. The trial judge found that, in this prosecution, the Crown provided full disclosure on at least six occasions: to Mr. Der, Mr. Hepner, Mr. Dahlem, to the appellant when she was self- represented, to Mr. Cameron, to Mr. Thiessen, and again to the appellant at the commencement of the trial. This is not a situation of a failure to disclose.

[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;

(b)   If the Crown disclosure, or the facts of the case, make it apparent that third parties may have records that will assist in making answer and defence, the accused must act diligently in obtaining that information or in bringing an O’Connor application. The court will not be sympathetic where a tactical decision was made not to pursue known documents: Dixon at paras. 37-8;

(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 (CanLII) at paras. 19-20, 236 CCC (3d) 476 leave to appeal refused [2009] 1 SCR xii; R. v Beckett, 2014 BCSC 731 (CanLII) 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.

(d)   When there is a change of counsel, or the accused becomes self-represented, there is an obligation on counsel and the accused to ensure that the disclosure is passed along or otherwise obtained by the new counsel or the accused: R. v Dugan (1994), 149 AR 146 at para. 5 (CA).

(e)   The accused must communicate openly with the Court and Crown with respect to disclosure issues. The Court and the Crown are entitled to take assurances by the accused at face value. When the appellant represented that she had disclosure, and had spent significant amounts of time reviewing it, the Crown was entitled to assume that its obligation to disclose had been discharged.

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.

Les principes relatifs quant à la forme de la divulgation

R. v. Beckett, 2014 BCSC 731 (CanLII)

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[6]           The issue dealt with in this ruling, therefore, is whether Mr. Beckett is entitled to full paper disclosure.

[7]           The grounds set out in Mr. Beckett's application included what became the main thrust of Mr. Beckett's submissions, namely that he has a fundamental right to full disclosure in hard copy form. That is not a sound statement of the law, of course. The law is coherently set out and applied in the context of electronic disclosure in the authorities cited by the Crown, namely: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326; R. v. Oszenaris, 2008 NLCA 53 (CanLII), 2008 NLCA 53 (leave to appeal refused); R. v. Therrein, 2005 BCSC 592 (CanLII); R. v. Pereira, 2007 BCSC 1533 (CanLII); R. v. Greer, 2006 BCSC 1894 (CanLII); R. v. Radwanski, [2006] O.J. No. 5250; R. v. Liew, 2012 ONSC 1826 (CanLII); R. v. Dunn (2009), 251 C.C.C. (3d) 384;R. v. Lam, 2004 ABQB 101 (CanLII); R. v. Barges, 2005 CanLII 34815 (ON SC), [2005] O.T.C. 844; R. v. Burns, 2010 SKPC 6 (CanLII); R. v. Piaskowski, 2007 MBQB 68 (CanLII); and R. v. Cianio, 2006 BCCA 311 (CanLII).

[8]           The applicable legal principles can be summarized briefly as follows:

1.   An accused is entitled to meaningful disclosure as a component of the fundamental right to make full answer and defence;

2.   An accused is not entitled to disclosure in the manner of his or her choice; the Crown has a reviewable discretion as to the manner of disclosure;

3.   The question on review is whether the disclosure provided or proposed is meaningful in the sense of being reasonably accessible, which in the case of e-disclosure has been held to mean organized and searchable;

4.   The circumstances of the accused and/or counsel for the accused are relevant to the accessibility question;

5.   The current absence of computer skills of an accused or counsel is not a bar to electronic disclosure, if those skills can be acquired relatively easily.

Illustration jurisprudentielle d'une difficulté rencontrée en regard d'une communication de la preuve électronique

R. v. Jarvie, 2003 CanLII 64366 (ON SC)

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[36]      Given the technological difficulties encountered by counsel for the applicants in this particular case, unfortunately disclosure of the information on the 24 CDs does not satisfy the obligation on the Crown as set out in Stinchcombe, supra.

[37]      I am not suggesting that electronic disclosure would not in other circumstances be totally appropriate and reliable.  Indeed, there are a number of recent cases in which electronic disclosure has been achieved effectively and successfully.  Further, I am not suggesting that the difficulties encountered with respect to searching an electronic document or using an electronic document in court are grounds to grant this application.  Indeed, in many cases involving voluminous paper material, electronic disclosure may be the format of choice for all parties.  The search capabilities afforded by electronic storage of information may well be superior in other cases to the search capabilities afforded to counsel by way of paper disclosure.

[38]      In this particular case, however, the method use to store and communicate to the applicants the information arising from the investigation is so seriously technically flawed as to impair the applicants’ ability to make full answer and defence should another reliable method not be employed.

[39]      There is little doubt that production of the disclosure on paper will be costly.  I note, however, that the Crown has indicated to the court that there is a great deal of duplication with respect to the information on the CDs.  It is reasonable to assume, therefore, that much of the information on the CDs has already been disclosed on paper and that the cost of production will be reduced accordingly.

Disposition

[40]      The Crown will disclose to each of the applicants one aggregate hard copy of the information contained on all of the compact discs which are the subject of this application, the cost of which will be borne by the Crown

La divulgation de preuve sous la forme de matériel informatique

Cazzetta c. La Reine, 1998 CanLII 11744 (QC CS)

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22  Je pense que la divulgation de preuve sous la forme de matériel informatique peut être conforme à l'obligation de communication si elle peut être consultée et examinée de façon adéquate par les accusés ou leurs procureurs.

23  Comme le mentionnait l'honorable juge Otis de notre Cour d'appel lors d'un examen des principes de l'obligation de divulgation:

Quant à la manière de satisfaire à l'obligation de communication, elle se rapportera à l'examen subjectif de chaque cas. Il s'agira toujours de déterminer si l'accusé a pu, matériellement, se servir adéquatement des renseignements ayant fait l'objet d'une communication pour repousser la preuve et les arguments du ministère public et prendre toutes les décisions qui s'imposent dans la mise en oeuvre de son droit à une défense pleine et entière.