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Last week I discussed a couple of cases that illustrate the obligations of the prosecution when providing edisclosure to defense counsel. However, both of these cases took place in urban Ontario, an area very different from the one I practiced in, where ediscovery best practices always make sense.

Providing criminal case ediscovery in a remote region of northern Manitoba, Canada is not the same as providing ediscovery in Toronto, Ontario, or New York City. eDiscovery best practices vary dramatically between those two locations. What is reasonable in one location might not be in another. Even ediscovery basics differ widely.

R. v. Ivarluk, 2005 NUCJ 5

The case of R. v. Ivarluk is instructive. It took place in Nunavut, a territory in northern Canada that is demographically and geographically similar to the one in which I practiced in northern Manitoba.

In this case, the accused made an application, not for electronic disclosure, but paper transcripts of statements made by the accused. In other words, the accused had received ediscovery but was demanding that the Crown produce a hardcopy transcript of the statement he had made to police.

As I discussed in a previous article, the remote courtrooms in which these cases take place are not equipped with devices allowing for electronic playback of media.

Using this case as an opportunity to enhance the Crown’s ediscovery best practices moving forward, the judge said the following:

[53]  For trial purposes, the need for full disclosure increases.  It is at this stage that the accused’s ability to make full answer and defense is most affected by the quality of the earlier disclosure.

[54]  The Crown shall provide to the accused or his representative, in a timely fashion, any written transcriptions of material witnesses in the possession of the Crown and not previously disclosed to the Defense.

[55]  Upon the request of the accused or his legal representative, the Crown shall prepare written transcriptions of any audio or videotaped Crown witness statements not yet transcribed.  All requests for written transcriptions not in the possession of the Crown shall be in writing and be provided to the Crown in a timely manner.

This is interesting, given the judge’s recognition of the fact that an uncertified transcript is evidently not the best form of the evidence as required by the Canada Evidence Act. Instead, providing transcripts along with edisclosure became part of that jurisdiction’s ediscovery best practices because of the circumstances in which these particular parties litigate.

R v Bennett, 2011 CanLII 50140 (NL PC)

In a similar case involving a similarly remote jurisdiction, the Provincial Court of Newfoundland and Labrador came to a similar conclusion.

The court, in that case, found that the accused was entitled to paper transcripts of all statements reduced to audio and video prior to trial.

[52]   Both counsel need transcripts of statements to go along with the audio and video recordings. In the standard case that we are dealing with here that is not a particularly heavy burden. 

[53]   If your [sic] are looking for transcripts of, for example a long-term wire tap [sic] that went on for months, then that would be a burdensome obligation on the Crown. I certainly do not regard the providing of transcripts of statements of the accused, complainant and witnesses to be at all burdensome.  In fact it is absolutely necessary for proper disclosure and for the reasonable conduct of any trial.

In this case, the court found that this duty by the Crown was engaged even when it did not possess the transcripts in the first place. Rather, it was required to ensure the transcripts were created and provided upon a request by the defense.

Final Thoughts

While the preceding cases are criminal in nature, they are best read as case-specific examples of the reasonableness and accessibility requirements of basic ediscovery. In all cases, what’s crucial is that the ediscovery provided to the opposing party is reasonably accessible and searchable. In other words, ediscovery best practices should satisfy the objectives of evidentiary disclosure in the parties’ unique circumstances.

You are reading Part 3 of 4. Read the rest of this fascinating series!

Part 1 of 4: eDisclosure in the 19th Century: Welcome to Manitoba

Part 2 of 4: Challenging Inadequate eDisclosure Systems in Canada

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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