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Continuing my look at discovery in criminal law, we come to this next, more current, case. In R. v. Vickerson, 2020 ONCA 434, the Ontario Court of Appeal dealt with electronic discovery in the context of criminal law. The self-represented accused in that case was in-custody prior to trial. He was convicted at trial of several counts of possession of fentanyl for the purpose of trafficking and conspiracy to traffic.

The Appeal

He appealed his convictions on a number of bases, but the most important one was the argument that involved electronic discovery in criminal law. The Crown had provided him with electronic discovery prior to trial. However, Mr. Vickerson was in-custody prior to the trial and didn’t have access to a computer while in remand custody.

In fact, Mr. Vickerson only obtained access to the evidence against him after they’d been tendered as exhibits in his trial.

The Crown agreed that his appeal should be allowed and that he should be granted a new trial (the accused had sought an acquittal, which was denied by the Ontario Court of Appeal).

Why?

It’s difficult to understand the actions of the Crown in this case. The trial decision is not available online, but it’s hard to make sense of how the state could provide an accused with electronic discovery only to deny him access to the technology required to make meaningful use of that tech.

Countless cases on the subject of discovery in criminal law have made clear the importance of providing meaningful disclosure in a form that’s accessible to the accused. It doesn’t have to be the form most preferable to the accused, but it does have to be reasonably usable.

The actions of the state were apparently indefensible enough that they did not even attempt to argue the issue on appeal, consenting instead to a new trial.

The Takeaway

In-custody accused create particular problems for prosecution services who seek to make use of electronic discovery in the context of criminal law. The sparse conditions and antiquated surroundings that prevail in most remand centers often don’t permit for fulsome and meaningful engagement with criminal case electronic discovery. In the worst cases, verdicts are overturned.

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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