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Electronic discovery in criminal cases has long been a problematic undertaking for prosecution services and police departments across Canada. My experience in northern Manitoba, Canada suggests that many departments, particularly those in rural or remote regions, struggle to deliver practical and usable electronic discovery on a timely basis.

Major Theft, Major Problems

I first learned of the difficulties inherent in making sense of electronic discovery in my first relatively large case as a defense counsel. It involved a workplace theft that took place over a number of months and involved about half-a-dozen accused.

The electronic discovery provided by the prosecution was voluminous. That was to be expected. What I didn’t expect was the disarray in which I found the information. Multiple CD-ROMs contained seemingly random pieces of information. Dozens of hours of surveillance footage files were intermingled with electronic transcripts of statements and other pieces of unrelated evidence.

None of it was labeled or indexed and there was no way of knowing what each file contained without actually opening it.

Organized Homicide

This was in stark contrast to the experience I’d had prosecuting several homicides in the same jurisdiction. Homicides were investigated by a specialized unit that flew in every time there was a suspected killing.

This specialized unit was deeply familiar with using major case management software that created organized and indexed disclosure packages for both the Crown and defense. Information was highlighted, labeled, properly formatted for searching, and extremely usable.

Even relatively simple homicides in which disclosure wasn’t inordinately extensive were highly organized affairs.

Lessons Learned

What I learned from these two disparate experiences is that the quality of electronic discovery in criminal cases depended more on the experience of the officers conducting the investigation than on the complexity of the case.

Experienced detectives with sufficient and qualified support staff were able to consistently create practical and accessible electronic disclosure. Less experienced officers would struggle to put together a manageable package that would meet the requirements of meaningful and accessible disclosure.

Unfortunately, it is frequently the case that less experienced officers happen upon an unusually complex case. A huge fight involving multiple co-accused. An extended workplace fraud. A complicated theft involving multiple investigative agencies.

In all of these kinds of cases, specialized units would not generally be brought out. Instead, untrained and inexperienced officers would struggle to create a coherent record of the investigation that resisted easy interpretation.

A Recommendation

My humble suggestion to facilitate electronic discovery in criminal cases is to create a small national support unit accessible by all police officers across the country. Officers could reach out every time they encountered a case that involved unusually large volumes of disclosure and take advantage of the experience and knowledge possessed by specialized disclosure units.

It would go a long way toward encouraging the resolution of complex cases.

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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