Disclosure Reform - Consultation Paper

Facilitating Electronic Disclosure

Electronic disclosure, in appropriate circumstances, can be of considerable assistance with the sheer physical challenge of disclosure. Although parties to complex proceedings are increasingly relying on electronic case management, there has not been clear acceptance within the criminal justice system of the electronic provision of disclosure materials as a sufficient form of disclosure in and of itself.

Proposed Legislative Response

Legislative amendments could be made to provide that where the Crown transmits disclosure materials in electronic format, complying with specified standards, this is presumed to be a proper form of disclosure with respect to those materials unless a court, in the interests of justice, decides otherwise.

Discussion

Although electronic disclosure has not been firmly accepted within the criminal justice system, neither has it been rejected. Numerous cases have proceeded on the basis of electronic disclosure. Even where courts have indicated that this form of disclosure is not appropriate in a particular case, they have generally been careful not to categorically reject its possible use in other situations.

Clearly, electronic disclosure can play a role in the justice system. As advances continue to be made in technology, and as those involved in the justice system become increasingly comfortable with and reliant upon electronic document management, electronic disclosure may well become the principal means of disclosure. It may be time to address the practice of electronic disclosure in specific legislative provisions. [1]

The proposed legislative response could create a presumption in favour of electronic disclosure as an adequate form of disclosure. Such a presumption would not set out an obligation to provide electronic disclosure, but would make it clear that the option is generally available to the Crown. It is important to note that this presumption concerns the form of disclosure, not the contents. It would, of course, still be the responsibility of those preparing the disclosure package to ensure that the materials in the package – whether provided electronically or by hard copy – include all relevant information required under court rulings.

Electronic disclosure can offer substantial advantages. Electronic materials can be more portable and easier to store, as well as more accessible, especially through the extremely powerful tool of text search capability. However, it might also have disadvantages and pitfalls. Some fear in particular that electronic disclosure can take the form of a simple massive transfer of electronic files, without any inherent organization and without any easy capability to access and search the material. To be sure, lack of organization can also be a problem for hardcopy disclosure. Nevertheless, electronic disclosure may be especially susceptible to problems of usability when it is done poorly. For these reasons, the potential legislative amendment could specify factors for courts to consider in deciding whether electronic disclosure is adequate, such as the legibility of electronic documents, the ability to perform searches, and the question of the reasonable availability of technology to the defence – possibly including the costs of any specialized computer system requirements.

Of course, electronic disclosure is not a panacea for ensuring more effective and efficient disclosure. Not all documents are originally created and stored in electronic format, and a substantial amount of document scanning is necessary in many cases. Scanning can require considerable time and money, and can also lead to difficulties when the source material is not easily scanned or the scanning is improperly performed. Further, electronic document storage and retrieval technology provides its own complications, including problems of compatibility among different software. Special difficulties in accessing electronic technology may arise with respect to unrepresented and incarcerated accused persons.

While the proposed legislative change is suggested as a presumption, it could be argued that the circumstances that make electronic disclosure appropriate may vary from case to case. Electronic disclosure is not always the preferred or appropriate option. Further, it may be that the organizational and technological standards for electronic disclosure, although advancing, are not yet mature enough to make it advisable to create a presumption. An alternative might be legislative amendments to put electronic disclosure on a legislative foundation, but without specifying a presumption.

It could also be argued that there is actually no need for legislative amendments addressing electronic disclosure. Although electronic disclosure is not accepted in all cases within the criminal justice system, it appears to be gaining increased acceptance: the justice system is already evolving in its approach. Some may suggest that it is more appropriate to allow this evolution to continue, hand-in-hand with the evolution of technology and the level of comfort of those who work in the justice system. On the other hand, legislative amendments might accelerate the process by sending a message within the system that electronic disclosure is appropriate.

Questions

  1. Is it appropriate to address electronic disclosure through legislative amendments, or should it be left to evolve through prosecution and defence practice and court decisions in individual cases?

  2. If it is appropriate to address electronic disclosure by legislation, should the legislative amendments create a presumption in favour of this form of disclosure?

  3. What legislative standards could be prescribed with respect to electronic disclosure?

  4. What would be the cost implications of greater electronic disclosure? Who should bear the cost of any special computer system required by the defence to receive and use electronic disclosure?


[1] Analogous legislative provisions already exist in related areas of law. For example, sections 31.1 to 31.8 of the Canada Evidence Act set out certain evidentiary provisions in respect of electronic documents.

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