E-Disclosure Pilot Project
Recently I was invited to attend an information session on the e-disclosure pilot project that is about to get underway for a small number of police divisions in Toronto’s Metro North jurisdiction. While electronic documentation may seem like a 1990s innovation, its adoption by notoriously change-resistant lawyers (on both sides of the criminal bar) and technologically averse police officers, may genuinely herald a new era in the archaic field of criminal law.
Starting immediately, police from the pilot detachment (currently consisting of officers from Toronto’s 31 Division who are not tasked to special teams and rolling out to two more divisions shortly) will be entering disclosure data into computer terminals generating a single Adobe PDF file. The PDF consists of a series of categories or chapter headings that will remain consistent across all cases. So for example, “category 10” will always contain scanned copies of police notes. In every case under the new e-disclosure system counsel can simply click on category 10 to be instantly linked to these scanned images which can then be highlighted or have text notes affixed to them. Other areas of disclosure that are made up of typewritten text will be searchable. Scene of Crime photos (commonly known as SOCO) will be in a separate category provided in a low resolution format not suitable for enlarged printing but certainly clear enough to view full screen on your desktop in the samples I was provided.
The system is optimized for Adobe Acrobat 9 and the Toronto Police Service is using the paid “pro” version of the software to generate the e-disclosure files but they will be perfectly readable by the ubiquitous free version of Acrobat ensuring that lawyers will not have to invest in any expensive new technology (beyond your existing office computer) to access the materials.
Crown attorneys will be receiving the e-disclosure via USB keys to be transferred to their internal CIMS system while defence counsel will be handed the files on CDROM. Paper copies of disclosure for cases arising out of the pilot division will not be provided and you can bet that some old-timers and techno-phobes (crowns and defence alike) will not be happy to discover this. Other counsel are likely to hand their discs to their secretaries and immediately demand that the entire contents be printed out and organized the old-fashioned way but I’m going to go out on a limb here and predict that most counsel will find the system to be a vast improvement after the initial jitters wear off.
It is hoped that the system not only reduces paper and costs but significantly shaves down the delay currently associated with waiting for disclosure — a leading cause of backlog within the court system. Some have even suggested that, in simple cases, complete disclosure could be provided digitally at the bail hearing stage mere hours after an accused’s arrest though that is not anticipated to be the case during the early stages of the pilot. As the system is rolled out across more divisions, it is anticipated that officers from multiple teams and in different detachments can simply upload their portion of an investigation from any local terminal to the master file dramatically speeding up the time it takes to have all notes and materials collated into a single e-brief. At present, to keep the file sizes down, rich multi-media such as video witness statements or 911 audio calls are not included in the PDF package but it is hoped that these will be rolled out in the future.
Training for crown attorneys is getting underway immediately with future sessions for the defence bar planned. These will be provided free of charge at the Toronto Police College.
Just a few weeks ago I was quoted in local newspapers discussing a case in which disclosure was provided on VHS cassette and here I am on the cusp of truly paperless disclosure. Maybe change is coming faster than I thought? Only time will tell.
– Obront, [1998] O.J. No. 6684 @ 67
Dear Mr. Flintstone,
I’m familiar with Mr. Greenspan’s impassioned arguments in Obront and, ultimately, he and other counsel who have flatly put their foot down have usually been accommodated. However, it is rapidly reaching the point where Mr. Greenspan’s “handicap” (as he calls it) as akin to an illiterate lawyer demanding the crown read him its disclosure.
There is no good reason why the Greenspan’s of the world cannot simply accept the e-disclosure as provided and then print it out themselves to then organize it in the hard-copy manner to which they have a become accustomed. I do not think the Crown has a legal obligation to provide the disclosure in counsel’s preferred format any more than they would be required to hand over an eight-track cassette of a 911 tape or a film reel of a KGB’d video statement.
At some point the argument becomes (or maybe at some point the argument stops being) who bears the cost of putting the disclosure into a form that is convenient for the defence? My recollection of Obront was that there were 100.000+ documents, or maybe it was in the hundreds of banker’s boxes of them, and the Crown did not want to have to print them. The Crown offered instead to provide computer resources (a document reader) and training for all defence counsel, as a cheaper way to proceed.
Telling counsel to print if they want to is nonetheless imposing quite a cost burden on that counsel, a burden formerly assumed by the taxpayers. The question is whether that burden can be taken to be self-inflicted because counsel has not kept up with the times (or … inflicted on the counsel’s client? Could a client refuse to pay counsel for his or her time spent combing through paper files for information that a search of a PDF file would have produced quickly?)
Is there a point at which the practice management people at the Law Society will be interested in such archaic methods of practice? Has the point been reached yet at which it is professionally negligent not to do online legal research? Reading everything on paper is a couple of steps beyond not using QuickLaw or CanLII or Google…
P.S. I recall the Obront decision circulating almost in samizdat in the late 90s, for its entertainment value. I also recall (I think) that when the defence counsel actually got their paper disclosure (the court having declined to compel them to accept the computer-based information), their clients promptly pleaded guilty (to something). Who knows if the potential cost of having their lawyers go through all that paper had any part to play in that decision?