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In R. v. Cheung, 2000 ABPC 86, thirty-four accused were charged with participating in a criminal organization and conspiracy to commit a criminal offense. As previously mentioned, there were other charges as well.

Thirty-one of the defendants were on remand with their bail denied.

5 of the accused were not represented by a lawyer.

Many of the accused required translators in multiple different languages. 

The Crown had provided much of the disclosure to the accused in the form of computer discovery contained on CD-ROMs. (The case took place in 2000.) Three accused persons, including an unrepresented defendant, applied for additional disclosure from the prosecution.

The accused sought an order from the court requiring the Crown to provide hard-copies of some 20,000 additional pages prior to the start of the preliminary inquiry. They also sought recorded audiotapes of many of the hundreds of hours of wiretaps.

The Result

The applicants were successful in obtaining an order for the Crown to produce additional hard-copy disclosure. However, they were successful in spite of certain arguments made by some of the applicants’ counsel that seemed to strain the patience of the applications judge.

Arguments of the Applicants

While the decision turned on the inability of the defendants to make appropriate use of computer discovery from in custody, counsel for some of the applicants argued that a lack of computer technology in their offices should require the Crown to produce paper documents.

In response, the court had this to say at Paragraph 57:

It is with considerable surprise to me that in the year 2000 with the seemingly pervasive use of personal computers in business, education and even the home, a lawyer practicing as a barrister and solicitor, would not already be employing a personal computer in his or her practice. It seems to me that the use of a computer today in a law practice is as much an expectation as a telephone or a photocopy machine. Surely it is today a tool of the trade one reasonably expects a lawyer to possess and employ.

The court goes on to say that opposing counsel’s choice not to use computer discovery should not restrict the ability of the Crown to make disclosure in the most efficient and reasonable way possible.

The Takeaway

It’s difficult to conceive of an argument similar to the one described above ever working in the modern era. And as much of a stretch as it was in the year 2000, it’s even more far-fetched in 2020.

About the Author:

Steven Toews

Steven Toews

Steven Towes is a former prosecutor and defense attorney, who now resides with his wife and labradoodle in Bermuda and offers legal and business writing and consulting services. Tweet him @steventoews.

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