When I was practicing criminal law in northern Manitoba, Canada, we didn’t have the benefit of a lot of conveniences, like following edisclosure basics. Indeed, we didn’t have the benefit of a lot of necessities. Instead, in the prosecution’s office, we made due with what we had and followed our own idiosyncratic policies.
Over the past few weeks I’ve covered some of them in these pages. I’ve written about how we provided edisclosure in Canadian courtrooms that didn’t have working electronic capabilities. I’ve written about how some defense lawyers have gone about challenging the basic edisclosure policies of the Crown in their jurisdictions.
I’ll sum up this series of articles with a description of what I contend is a key difference between edisclosure in urban and rural Canada. I’ll begin with a caveat, however.
Edisclosure basics vary from jurisdiction to jurisdiction, especially in rural areas, which often follow their own peculiar logic. This is not an attempt to encyclopedically cover every area of Canada, or even a single province. Instead, it’s a quick primer on how edisclosure laws in Canada might differ in their application to urban and rural areas.
One of the key characteristics of effective edisclosure in Canada is accessibility. That is, can defense counsel effectively access the material that’s been provided to them? In urban areas, this component of edisclosure can usually easily be achieved. Basically, if the information is easily accessible in an electronic version the criteria will be met.
In remote and rural areas, however, travel to far-flung communities to hold court is a necessity. Many of these communities do not possess facilities with electronic capabilities. In fact, it may be necessary to hold trials in locations that do not have computers or monitors available.
As a result, some rural courts have held that it is incumbent upon the Crown to produce paper transcripts of electronically recorded statements prior to trial. The jurisprudence is mixed on this issue, however, with some courts holding the opposite and finding that the Crown has no obligation to produce evidence in an “inferior” format for the convenience of the defence.
As a general rule, the trend has been for the most remotely located courts in the country (like the Provincial Courts of Nunavut and Newfoundland and Labrador) to find that basic edisclosure has to be supplemented with paper documentation, including transcripts. The more rudimentary the technological capabilities of a region are, the less likely a court is to find that purely electronic disclosure by the Crown is sufficient to meet its obligations.
If nothing else, the differing application of edisclosure basics in Canada based on region shows that the country is not a uniform canvas upon which one can draw a singular set of rules and policies. Vastly different technological capabilities characterize the disparate parts of the country and much work is needed before ediscovery basics in rural areas can be brought into line with more populated, urban regions.
You are reading Part 4 of 4. Read this fascinating series from the beginning!
Part 1 of 4: eDisclosure in the 19th Century: Welcome to Manitoba
Part 2 of 4: Challenging Inadequate eDisclosure Systems in Canada
Part 3 of 4: eDiscovery Best Practices in Remote Locations