Last week, I mentioned that the edisclosure system we utilized at the Crown’s office in northern Manitoba was likely inadequate. But before I get into what defense counsel can do to challenge ineffective edisclosure systems and ediscovery processes in criminal cases, here’s a quick recap of last week’s blog.

A Quick Recap

In case you didn’t read last week’s article, for most of 2012 to 2018 I was a prosecutor (Crown Attorney) in a remote jurisdiction in northern Canada. We served high-crime, under-resourced First Nations reserves and towns. 

Despite utilizing temporary courtrooms that had no electronic capabilities, the Crown’s office relied upon edisclosure systems that basically involved handing CD-ROMs back and forth between Crown and defense counsel.

Despite the obvious shortcomings of this less-than-ideal system, the defense bar engaged in no litigation to address the situation. Luckily, other jurisdictions have enjoyed the benefit of more proactive defense counsel who brought applications challenging the ediscovery processes of the Crown. These are just two of those cases:

R. v. Barges, 2005 CanLII 34815 (ON SC)

In R. v. Barges, the Crown provided to three people accused of first-degree murder a hard copy of the relevant evidence which consisted of no less than 83 bound volumes worth of material. In addition to the hard copy, the edisclosure system relied upon by the Crown consisted of CD-ROMS of PDF documents. The PDFs were images of the manually scanned documents and had not been “OCR-ed” (subjected to optical character recognition).

The three accused made an application to the court to require the Crown to produce Word documents out of the scanned PDFs so they could search the data for keywords and phrases and more easily manage the voluminous disclosure.

The pretrial judge ordered limited relief. The court ordered that the indexes of each volume should be converted into Word format and made electronically searchable. However, the court did not order that the entirety of the disclosure be converted into a more usable format. In other words, the ediscovery process used by the Crown was ruled to be generally effective and adequate.

R. v. Dunn, 2009 CanLII 75397 (ON SC)

In R. v. Dunn, the Crown provided the accused with a massive database of ediscovery. It was split into two parts. The first part, which was created using a Royal Canadian Mounted Police edisclosure system called “Supertext” was easily searchable and indexed. The second part, which was created using an ediscovery process called Concordance, was inarguably difficult to search.

Despite that, the Crown argued that it had met the minimum standard required by the law. It argued that the database was sufficient to meet the needs of the accused, even if it wasn’t an ideal format. The trial judge disagreed. The court said: 

To find anything in particular on the database requires a combination of two things:  a willingness to devote a substantial amount of time to looking and good fortune.   Even a seemingly comprehensive search of the database will never leave a searcher with a sense of confidence that the search was conclusive, due to inherent problems in the database.

It found that an edisclosure system must be “reasonably accessible” and that:

Reasonable accessibility is a matter to be assessed contextually on a case by case basis, but certainly to be accessible disclosure must be reasonably organized and searchable.

The court ordered that the Crown provide a new database to the defense. It also ordered that the newly provided database meet a number of criteria that would render it more easily accessible and searchable.

Wrapping Up

One of the themes that permeates decisions like the ones above is the importance of context. Courts will look to the circumstances of the court, counsel, and the accused when deciding whether the ediscovery process offered by the Crown has been reasonable.

Next week I’ll take a look at some decisions that impact on edisclosure systems in more remote and less accessible locations, like the one I practiced in: northern Manitoba.

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