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In R. v. Cheung, 2000 ABPC 86, 34 accused were jointly charged with conspiracy to commit an indictable offense and participating in a criminal organization. As with most large scale criminal organizations, there were, of course, other charges as well.

31 of the accused were remanded in custody with their bail having been denied by the provincial or superior courts of Alberta, Canada.

5 of the accused were unrepresented by counsel.

Several of the accused required translators in multiple languages. 

3 of the accused, including one who was unrepresented, made an application for additional disclosure from the Crown. In this case, the Crown had provided electronic discovery to the accused in the form of e-disclosure contained on CD-ROMs. (The case took place in 2000.)

The accused sought an order from the court requiring the Crown to provide hard-copy disclosure of some 20,000 additional pages prior to the start of the preliminary inquiry.

The Crown’s Position

The Crown argued that it had made every effort to make the provided electronic discovery accessible by the accused. They had arranged for computer rooms to be set up at the Edmonton Remand Centre where the accused were held for the accused to access the electronic disclosure.

The Crown also argued that the e-disclosure was functionally better than mere hard-copy, given that it was searchable and indexed.

In short, the Crown’s position was that it had adequately provided meaningful disclosure to each of the 34 accused, including the 31 in-custody accused.

The Applicants’ Position

The applicants relied largely on arguments that emphasized the practical difficulties associated with accessing the electronic disclosure from within the Edmonton Remand Centre. There were only a handful of computer rooms. Hard-copy pages of disclosure could not be printed by the accused. Finally, there were simply so many accused that there was no way for them all to be granted sufficient time to review the mountains of disclosure before the preliminary inquiry.

The Judgment

While many other arguments were made, (and we’re going to go through a few of them over the next few weeks on this blog) the provincial court judge was persuaded by the applicants’ arguments. He found that a failure to provide hard-copy to the in-custody applicants would prejudice their interests in two important ways.

First, it would impair the ability of the accused to meaningfully access the material and communicate with counsel.

Second, the time available did not permit the accused to fully access the reams of disclosure. In other words, if all the accused sought to exercise their right to meaningful disclosure, none of them would be able to get enough computer time to fully review their disclosure.

The Takeaway

E-disclosure, in the criminal context, isn’t necessarily the panacea that some think it is. While it can usually be easily accessed, in-custody accused have particular difficulty in exercising their right to meaningfully review disclosure when it is provided in electronic form.

Read the 2nd installment, here.

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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