Candice Chan-Glasgow, Director, Review Services and Counsel

 

August 7, 2020

 

In a decision released last month, R. v. Cuffie, 2020 ONSC 4488 (CanLII), the Ontario Superior Court of Justice considered whether the Crown’s disclosure of non-searchable PDFs constitutes “meaningful” disclosure.

 

The Crown provided disclosure in nine tranches, and each tranche of disclosure was accompanied by a spreadsheet which functioned as a table of contents.  The spreadsheet listed the file name of every item disclosed, the folder in which the file was located, and the date the item was disclosed.  Approximately 7,000 “written documents” (over 318,600 pages) were disclosed, in addition to over 9,000 audio files, videos, and photographs.  6,839 of the “written documents” were PDFs, 1,979 of which were non-searchable.  The non-searchable PDFs included handwritten police notes.

 

Justice Corrick noted that “the Crown is not required to provide perfect disclosure, or disclosure in the format preferred by the accused person, or even in the most user-friendly format”, but the disclosure must be “meaningful”.  The characteristics of “meaningful disclosure” are set out at paragraph 31 of the decision:

 

  1. It must be accessible;
  2. The information disclosed must be capable of identification;
  3. It must enable proper trial preparation; and
  4. The accused person must be able to access the disclosed information in court, if necessary.

Justice Corrick concluded that the disclosure provided in this case was not reasonably accessible.  The table of contents listed over 20,000 items, and the chance of finding a document from the spreadsheet was dependent on how the file was named.  Further, the contents of each document could only be searched if opened individually, and many documents could not be searched at all because they had not gone through the OCR process.

 

The concept of “reasonably accessible”, which requires reasonable searchability, cannot be measured by standards set by cases decided more than ten or fifteen years ago.  Technology has advanced to the point where “reasonably accessible” includes the capacity to search a database of disclosure and the contents of as many documents as possible.  The ability to find a document cannot be limited by the manner in which the document is named in a table of contents. (Para 59)

 

Although Justice Corrick concluded that the disclosure violated the Applicant’s s. 7 Charter rights, she did not require the Crown to convert the non-searchable PDF documents that were already disclosed.  As disclosure in this matter is ongoing, and as important disclosure had yet to be provided, Justice Corrick ordered that all future PDF documents, both type-written and hand-written, must be disclosed in machine-readable format.

 

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