Aug 20, 2020

When unwieldy electronic disclosure violates the right to make full answer and defence

R. v. Cuffie, 2020 ONSC 4488 (CanLII)

Disclosure is the foundation of any criminal case. Post-Stinchcombe, the Crown is required to provide any relevant disclosure to the defence. With greater disclosure obligations on the Crown, and increasing use of technology in investigations, disclosure volumes continue to grow. A practical question that has arisen is how disclosure must be provided and organized.

The Ontario Superior Court of Justice tackled the issue of accessible and meaningful electronic disclosure in Cuffie, where an accused person charged with conspiracy to drug traffic as part of a project file alleged that his Charter rights were breached by the manner of provision of disclosure.

Issue

Mr. Cuffie was charged in a web of arrests of 95 other persons. He was specifically alleged to have conspired with others to transport and traffic drugs between two Ontario jurisdictions. The crux of the Crown’s case lay in intercepted communications. The amount of disclosure was enormous, and included 6,839 PDF documents (totalling 318,655 pages), 1,979 of which could not be searched by keyword. The accused sought a s. 24 remedy requiring the Crown to provide all material, both that had already been disclosed as well as any future disclosure, in a searchable and indexed format.

The Applicant recognized that disclosure had to be sufficiently organized and searchable to allow him to prepare for trial and make full answer and defence, and that sufficient does not mean perfect. He argued that the organization and lack of search capabilities rendered it insufficient.

The Crown argued that the tools it had provided rendered the disclosure reasonably accessible. By the time of the disclosure motion, this included a detailed summary of the evidence it intended to present against Mr. Cuffie, a detailed index of disclosure provided (updated with new disclosure on a rolling basis), categories created by the Crown, and identifiable file names. The Crown also argued that “certain important documents” had been rendered searchable by keyword, and this was a sufficient exercise of the Crown’s discretion.

The Law on Meaningful Disclosure

Counsel did not dispute the governing legal principles drawn from jurisprudence, summarized as follows:

  • The Crown has discretion to determine the manner in which disclosure is made, but the manner must be meaningful to allow the accused to make full answer and defence. The Crown is not required to provide perfect disclosure or disclosure in the “most user-friendly format.” (para 29-30)
  • To be meaningful disclosure, the disclosure must (1) be accessible, which means organized and searchable, (2) be capable of identification, (3) enable trial preparation, and (4) be accessible in court. (para 31)
  • Context is key when determining whether disclosure is meaningful. Whether the disclosure is organized and searchable will become more important as volume increases. (para 32)
  • The Crown’s duty to disclose must be balanced with practical difficulties, i.e. time and expense required to provide voluminous amounts of disclosure. (para 33)
  • Electronic disclosure may not be reasonably accessible where it is not capable of a single, comprehensive, quick search. (para 57)

Charter Breach

It was held that the disclosure provided in Cuffie was not adequate to enable the Applicant to make full answer and defence, thereby violating his Charter s. 7 right. Specifically, the disclosure was not reasonably searchable and therefore not reasonably accessible. A table of contents containing file names as labeled by the Crown was insufficient to provide reasonable accessibility. Providing hundreds of thousands of pages, and only some in a searchable format, was insufficient to render the provision of disclosure meaningful. (paras 58-65)

A search for a specific ITO in relation to a search warrant for a residence demonstrated the lack of reasonable organization in this case. The ITO was found in a folder labeled “Search Warrants – Not Executed,” despite that the warrant issued based on the ITO had been executed. Moreover, the document had an omnibus file name not referencing the residence for which the sought ITO referred to. The contents of the document were also not searchable. (paras 39-42)

Remedy

In determining an appropriate remedy, the Crown’s duty to disclose was balanced with practical considerations of time, expense, and difficulties relating to provision of voluminous disclosure. After noting that the overriding consideration is the Applicant’s ability to make full answer and defence, and that it is the responsibility of the state to provide reasonably accessible disclosure, the Court concluded that the appropriate remedy was to require, at minimum, any further PDF documents provided by the Crown to be machine readable, i.e. searchable. (para 66-73)

Commentary

Cuffie provides a helpful overview of the law on what it means for disclosure to be accessible and therefore meaningful, including when the format that the disclosure is provided in may be non-compliant with the Charter. However, the remedy ordered in this case does not appear to meaningfully address the Charter breaches found.

Despite having demonstrated that the manner of organization, including file names and folders, was inadequate, no remedy in relation to organization was ordered. Further, the defence was left with thousands of documents that were not searchable or machine readable. In order to effectively search disclosure, the searcher must be satisfied that every document is considered in the search.

The prioritization of Crown resources in disclosure applications is concerning given it is the Crown’s responsibility to bring an accused to trial. If a defence is funded by legal aid, the resources required to convert disclosure into an accessible and meaningful format will come from one state pot or another, where legal aid is willing and able to provide funding for these tasks. If not, or if an accused is self-funding their defence with limited resources, or self-represented and not tech savvy or without adequate time to thoroughly review and organize disclosure, the ability to make full answer and defence may be seriously impacted. More guidance is needed on effective remedies for inaccessible disclosure.