In a judgment released on December 10, 2019, the Court of Quebec, Criminal and Penal Division, in R. v. Morris, 2019 QCCQ 7635, confirmed that when the Crown chooses to disclose its evidence in a criminal or regulatory proceeding in an electronic format, it has a duty to organize the evidence and format it in a way that makes it accessible to the defendant.
In this case, in connection with alleged breaches of the Tax Administration Act, the Crown disclosed most of its evidence – roughly 50,000 items – in electronic format, on CDs, DVDs and USB keys, through six successive waves.
The Defendant complained that this electronic disclosure was not organized and came without any search engine or software allowing for searches by keywords or by field or even allowing the identification of duplicates as between waves of disclosure. The Defendant argued that his right to full answer and defense protected by Section 7 of the Canadian Charter of Rights and Freedoms was infringed as a result and sought an order compelling the Crown to redo its disclosure so that it would be accessible.
The Court held that any sizeable disclosure by the Crown of evidence in an electronic format must be organized and must include a search tool allowing the Defendant to:
- search the entire disclosure at once (even if there is more than one wave of disclosure),
- to do searches by keywords or by field such as date, author, recipient, subject; and
- maintain the links between documents and their respective attachments or, in other words, allow for the identification of families of documents.
In closing, the Court mentions that on the eve of 2020, the Crown must provide the necessary tools associated to the volume of evidence disclosed in an electronic format. Failure to do so can, as in this case, breach a Defendant’s right to full answer and defence and could compromise the holding of a trial within reasonable delays.