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My History

Between the years 2012 and 2018 I worked mostly as a Crown Attorney in northern Manitoba, Canada. Crown Attorneys are the “front-line prosecutors” in the Canadian criminal justice system, and are responsible for following edisclosure and ediscovery laws, regardless of where they are situated. Inherited from the British legal system, Crown Attorneys are similar in some respects to Assistant District Attorneys in some American states. (There are some major differences but, for now, that comparison will suffice.)

I worked in the Thompson, Manitoba Crown’s office. In addition to being responsible for the city of Thompson (pop. 13, 678), our office handled prosecutions for 15 other communities (not counting the communities that came into Thompson for court) in the northern part of the province. Most of these communities were First Nations reserves with limited resources and the court party (judge, clerk, and lawyers) would fly in each time on a small plane.

The Conditions

When I say the communities we served had “limited resources,” I’m being polite. They included some of the most impoverished communities, not just in Canada, but in the world. Housing was often scarce and dilapidated. Many had no running water.

Circuit courts were frequently run out of buildings that should have been condemned the moment they were built. There were no computers, monitors, or electronic equipment to speak of. All audio recording equipment had to be brought with us in tactical bags.

The Workload

Despite being sparsely populated, the workload was intense. It was not unusual for me and other Crowns to have over 300 active files at one time. Defense counsel carried even more files, as there were fewer defense lawyers than Crowns when I was there.

In 2019, Thompson was identified as Canada’s most violent city, as measured by the Crime Severity Index. That’s largely due to the fact that the violence on the nearby reserves and towns is attributed to Thompson in the statistics. Unsurprisingly, most of our caseload consisted of violent crimes, much of it serious.

The Rules

The rules in Canada governing disclosure in criminal cases are laid out in a landmark ruling known as R. v. Stinchcombe, [1991] 3 SCR 326. That case confirmed that the Crown must disclose everything relevant, both inculpatory and exculpatory, to the defense upon request. It was, however, silent on the form that discovery might take. So, edisclosure wasn’t anticipated and ediscovery law wasn’t addressed.

What We Did

In northern Manitoba, we followed a practice that was, in hindsight, unusual to say the least. Despite working in court facilities that had no computers, we handed out CD-ROMS of edisclosure containing all of the information we had on file for that particular case.

The CDs often contained scanned paper documents that usually hadn’t been subjected to optical character recognition (OCR), indexing, or any other method that might make them easier to sift through.

Additionally, the receipt of this edisclosure was subject to trust conditions that defense counsel had to accept before being given the discovery. Those conditions included prohibitions on making copies and making the data available to a third party.

The Shortcomings

Three years later, I’m not sure if these practices are still being followed. But, looking back, I can see at least a few serious problems with our methods as they then existed.

First, the edisclosure we were providing was not conveniently accessible. Without pre-processing and indexing the data, how was busy defense counsel expected to comb through the mass of electronic documents in order to find what was important?

Second, the Crown was providing edisclosure in circumstances where the facilities in which we worked were not equipped to handle electronic documents. Except for our “home base” in Thompson, our courts were not equipped with computers or monitors on which we could play recordings of statements or interrogations or even view photos. Effectively we were providing edisclosure in 19th-century surroundings.

Finally, the Crown was imposing trust conditions that prevented the defense from engaging third parties to properly process and index the data in order to render it more usable.

Wrapping Up

Looking back, I suspect that our prosecutorial practices were far from ideal. I doubt they were even consistent with the basic principles of ediscovery law. Nevertheless, while these practices were the frequent subject of complaints by defense counsel, no litigation was ever brought. Next week I’ll discuss a couple of cases in which defense counsel did challenge the way in which the Crown handled edisclosure.

You are reading Part 1 of 4. Read the rest of this fascinating series!

Part 2 of 4: Challenging Inadequate eDisclosure Systems in Canada

Part 3 of 4: eDiscovery Best Practices in Remote Locations

Part 4 of 4: eDisclosure Basics in Rural Canada: A Final Word

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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