QUEEN’S BENCH FOR SASKATCHEWAN Citation: 2009 SKQB 445 Date: 2009 11 13 Docket: Q.B.G. No. 703/2009 Judicial Centre: Saskatoon BETWEEN: TREVOR WAYNE ANDERSON, and HER MAJESTY THE QUEEN, Counsel: Mark Brayford, Q.C. and Glen E. Luther for the applicant Craig D. Neely for the respondent Crown JUDGMENT MILLS J. November 13, 2009 [1] The accused is facing 24‑count indictment generally associated with allegations of involvement in the sale of controlled substances and matters ancillary thereto. This motion, under ss. 7, 11(d) and 24 of the Canadian Charter of Rights and Freedoms, Part of the Constitution Act, 1982, being Schedule to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”), is for an order that the accused “be provided with full disclosure in useable format”. The motion has two separate components. The first relates to the method in which disclosure has been provided, “the usable format”. The second is whether full disclosure that would allow the accused to provide a full answer and defence has been provided. The second issue is to be dealt with by “Laporte inventory”, named for the procedure in R. v. Laporte (1993), 1993 CanLII 6773 (SK CA), 113 Sask. R. 34 (C.A.). Statement of issues [2] The issues are: 1. Was the disclosure provided to the defence in usable format? 2. In the circumstances of this case, is it appropriate for the Court to embark upon Laporte inquiry and make the appropriate order, if any, regarding further disclosure, or should that issue be left to the trial judge? 3. If the answer to No. is yes, what is the appropriate order to make on the materials filed? 1. Was the disclosure provided to the defence in usable format? Background facts [3] Counsel for the defence has been provided with disclosure of all documents involved in this prosecution by way of electronic data stored on hard drive. Counsel for the defence has the skill, sophistication and equipment to access the electronic data. This is not case where the defence seeks hard copies of documents because their computer literacy skills are deficient. [4] There are some 30,000 to 40,000 pages of disclosure made to the defence. In addition, 275 audio files, 50 video files and large series of photos have also been provided. [5] It is appropriate to provide some basic information regarding the nature of the disclosure provided so far. In response to the motion, the Crown called Michelle Fountain, civilian member of the Royal Canadian Mounted Police (“RCMP”), whose function was to assemble files for disclosure purposes. She used proprietary software to organize the data received from the police investigation. Some data came to her in electronic form. Some data came in hard copy, which was scanned into an electronic form. Some came by way of audio or video file. She organized data by task. She used five‑year‑old laptop and Adobe Acrobat Reader to demonstrate the accessibility of the disclosure provided. [6] Ms. Fountain demonstrated how the data would be searched when the accused wishes to obtain information in relation to other people involved in the police investigation; this would be available by reference to specific task. For instance, information related to Rhonda Vermette, subject of the investigation, could be obtained through searching the task headed “inquiry”, then search of her name. It could also be accessed by going to the task entitled “Vermette”. This organizational system is the same one used by the Crown in preparation for trial. This system is not organized to be specifically helpful to the defence or to provide the defence with custom access to particular area of interest to them. The RCMP supplied the Adobe Acrobat Reader software, along with the codes to access the tasks involved, to defence counsel. Ms. Fountain personally assisted defence counsel in understanding the software utilized and how to search the data for specific information. She continues to be available for that purpose if required by defence counsel. She is only available during regular working hours and then, of course, if not occupied on another project. [7] As part of the disclosure, the RCMP prepared Crown brief, which is 60 pages long. The brief details the theory of the Crown in general terms and uses blue text to link important information to evermore specific data contained in the disclosure. For instance, if specific piece of information relating to surveillance was contained in the Crown brief, there would be link to information related to the surveillance, which would include documents, photos, exhibits, etc. If documents were linked, you would go to the documents and see what documents by date and activity were referred to. Cross‑referencing of all the background information, including the police officers’ notes, were available; however, they were by task first and then by date. Once you have got to the officers’ notebooks, an actual copy would appear as it relates to that specific task. You would not be able to simply call up and print in chronological order all of the particular officers’ notes associated with the investigation. The notes as disclosed are available to the defence but would require significant time in locating and collating for an individual officer’s notebook. The defence acknowledged that the purpose in obtaining the chronological order of particular officer’s notebook relates to ease of cross‑examination in relation to the issue of whether valid search warrant had been issued. The defence complains that it is cumbersome to obtain notes in this fashion, and you end up getting the officer’s notes sorted by task but not by date. Legal Analysis [8] The defence does not seek hard copy of any documents that were created in computer. The defence does not seek hard copy of any document created on paper and scanned into the computer unless the document “has been, or will be, utilized by the police or the Crown in hard copy”. The defence does seek photocopies of all officers’ notebooks organized by date and officer. The basis of the defence’s argument is, firstly, equality of use or level playing field should be created with respect to the provision of documents utilized by the Crown and, secondly, trial fairness requires the particulars of the police officers’ notes be provided in the format requested. The defence argues that if the Crown is going to be using paper copies of some documentation because it finds that use more convenient and effective, then the defence should be provided with the same paper copies to level the playing field. This is reasonable request. Both Crown and defence essentially agree on this concept. The Crown states there is an obligation for disclosure in general terms in slightly different fashion. The question is not providing simply usable format for the defence but that the disclosure should be provided in manner that is reasonably accessible by the defence. In some cases, it would be hard copies of all documents. In others, it would be by way of electronic disclosure or, in some situations, combination of the two. The Crown states the choice is theirs, so long as the disclosure is reasonably accessible. See R. v. Therrien, 2005 BCSC 592 (CanLII), 72 W.C.B. (2d) 116, and R. v. Piaskowski, 2007 MBQB 68 (CanLII), [2007] W.W.R. 323. [9] The difference between the defence terminology of “usable format” and the Crown’s “reasonably accessible” is one of semantics from each of their subjective approaches. One would surmise that for document to be reasonably accessible, it would have to be in usable format. The issue that has arisen in other cases has been whether the method of disclosure meshed with the particular lawyer’s skills as opposed to general skills that all lawyers should have. In R. v. Jonsson, 2000 SKQB 377 (CanLII), [2001] W.W.R. 325, Klebuc J. (as he then was) stated: [14] Whether production on computer diskettes or CD‑ROM’s is adequate will vary with the sophistication of the accused and his or her counsel’s ability to access data stored thereon. However, the day will soon come when the ability to operate personal computer and retrieve data stored on computer disks and related media by means of software programs designed for general public use will be core competency requirement for counsel who wish to act in cases involving voluminous amounts of data. It appear to me that that day has come. [10] The defence wants: (a) the same documents in the same format to be utilized by police and Crown during the investigation and at trial; and (b) police officers’ notes in hard copy arranged by officer and date. The defence does not argue the issue that they do not have disclosure in reasonably accessible form, except for police officers’ notebooks, but they do not have it in the same form as the Crown. [11] The evidence and argument at the hearing does not support that contention. From the standpoint of trial fairness, the Crown has the same documents organized on the hard drive in the same fashion the defence has. The organization by task reference is useful to the Crown in proving their case. As indicated, it is not formatted to assist defence directly; however, the basic premise of any case is the fact that the accused is presumed innocent and that the Crown must prove their case against him/her beyond reasonable doubt. It would seem logical that the starting point for any defence preparation would be the actual evidence to be utilized by the Crown at trial. That allows the defence to assess their ability to challenge that evidence in order to discredit it and to assess the evidence to determine if, on an evidentiary basis, it would be wise for the defence to call contradictory or explanatory evidence. The utilization of the cross‑referencing feature is valuable to both Crown and defence. While Crown counsel acknowledges the defence should be entitled to hard copies of any documentation used by the Crown at trial, he does not extend that acknowledgment to any disclosure that previously had been or may be in the future utilized by the police in hard copy. The word “utilized” has very general meaning, and in one sense, given that the police prepared written document in the course of the investigation, it could be said to be utilized by them in written form; therefore, hard copies of all these documents would be necessary. The Crown has stated that on any occasion on which, as result of review of the electronic data, anything is printed by him, second printed copy is forwarded to the defence. So far, in excess of 300 documents have been provided to the defence in this fashion. The Crown has stated that it intends to continue following such process. Insofar as the utilization of hard copies for trial preparation that is sought by the defence, this appears to be reasonable resolution on the issue of trial fairness. [12] Presumably, excerpts from the police officers’ notebooks dealing with their trial testimony, if printed, would also be provided to defence counsel in preparation for trial. Defence counsel has candidly advised that the issue surrounding the defence of serious drug charge usually starts with the validity of the search warrant, and the information utilized by the police in obtaining the search warrant is crucial, not just the information that was provided to the official issuing the warrant but any information that may have been withheld. The affidavits in support of the search warrants in this case are easily found in the database, and cross‑referencing to the police officers’ notes in support of that information is available. What is not easily available and, for the purposes of the Crown, not relatively important is the balance of the information that may have been obtained by the officer not disclosed in the affidavit. This information is often crucial for the defence. [13] Given the nature of the organization of the data by the Crown, the cost of obtaining the police officers’ notebooks in full, in chronological order for pre‑trial examination and trial cross‑examination is significant, not just in terms of printing costs, but in counsel’s time in locating it. In this case, given the nature of the charges, the number of police officers involved in the investigation leading up to the issuance of the warrants and the relative ease and cost of obtaining hard copies, the Crown should provide hard copies of the notes made by police officers in their notebooks. It is ordered that the notes of those officers which provided information for the issuance of the search warrants have to be provided in hard copy in chronological order. It is ordered that the notebooks of those officers who will be testifying at trial are to be provided to the defence in hard copy in chronological order. The notebooks of those officers not involved in gathering information involved in the issuance of the search warrants and those not testifying at trial do not have to be provided in hard copy but, of course, they are still available to the defence through the electronic disclosure. There are some 75 police officers that are involved in the investigation, but not all of them will be testifying at the trial, nor have all been involved in relation to the issue of information surrounding the issuance of search warrants. [14] There is no need for the Crown to provide copies of any officers’ notebooks in hard copy and chronological order that postdates the laying of the charges or the issuance of search warrants, whichever is dated later. [15] In all other respects, the nature and format of the disclosure provided to date is appropriate in that it has been provided in a reasonably accessible manner which does not detract from the right of the accused to make full answer and defence. [16] very useful discussion of electronic disclosure and the issues involved is found in R. v. Piaskowski, supra, in which Sinclair J. reviewed extensively the discussion regarding the general use of electronic disclosure as opposed to paper disclosure. [17] Excepting for the police officers’ notebooks as indicated previously, the format provided, in my opinion, is, in fact, beneficial to the defence over being faced with 30,000 paper documents. Indeed, it would appear that the preferable method is electronic disclosure to allow defence meaningful ability to digest, review and call up the relevant documents in timely fashion. 2. In the circumstances of this case, is it appropriate for the Court to embark upon Laporte inquiry and make the appropriate order, if any, regarding further disclosure, or should that issue be left to the trial judge? 3. If the answer to No. is yes, what is the appropriate order to make on the materials filed? [18] During the course of argument and discussion and concessions by the Crown, it was appropriate that the issue of the Laporte inventory be adjourned to allow Crown counsel an opportunity to review some of the source documents in relation to the search warrant to determine whether any objection to them would be removed and to review its position with respect to the question of grounds of privilege. Defence counsel and Crown agreed that Issues No. and are to be adjourned. The adjournment of these issues was conceded by defence and Crown to have no impact on the ability of the preliminary hearing to proceed.
The accused is faced with a 24 count indictment associated with allegations of involvement in the sale of controlled substances. The motion, made pursuant to s. 7, 11 and 24 of the Charter of Rights is for an order that the accused 'be provided with full disclosure in a useable format'. The motion has two components. The first relates to the method in which disclosure has been provided, the 'useable format'. The second is whether full disclosure that would allow the accused to provide a full answer and defence has been provided.  The second issue is to be dealt with by a 'Laporte inventory', name for the procedure in R. v. Laporte (1993), 113 Sask. R. 34 (C.A.).HELD: 1) There are some 30,000 to 40,000 pages of disclosure made to the defence. In addition, there are 275 audio file, 50 video files and a large series of photos. The defence seeks photocopies of all officers' notebooks organized by date and officer. The basis of the defence's argument is firstly, equality of use or a level playing field should be created with respect to the provision of documents used by the Crown and, secondly, trial fairness requires the particulars of the police officers' notes be provided in the format requested. The defence argues that if the Crown is going to be using paper copies of some documentation because it finds that use more convenient and effective, then the defence should be provide with the same paper copies to level the playing field. 2) The defence has candidly advised that the issue surrounding the defence of a serious drug charge usually starts with the validity of the search warrant, and the information used by the police in obtaining the search is crucial, not just the information that was provided to the official issuing the warrant but any information that may have been withheld. The affidavits in support of the search warrants in this case are easily found in the database, and cross- referencing to the police officers' notes in support of that information is available. What is not easily available and, for the purposes of the Crown, not relatively important is the balance of the information that may have been obtained by the officer not disclosed by affidavit. This information is often crucial for the defence. 3) In this case, given the nature of the charges, the number of police officers involved in the investigation leading up to the issuance of the warrants and cost of obtaining hard copies, the Crown should provide hard copies of the notes made by police officers in the notebooks. It is ordered that the notebooks of those officers who will be testifying at trial are to be provided to the defence in hard copy in chronological order. In all other respects, the nature and format of the disclosure provided to date is appropriate in that it has been provided in a reasonably accessible manner which does not detract from the right of the accused to make full answer and defence.  4) A useful discussion of electronic disclosure and the issues involved is found in R. v. Piaskowski, 2007 MBQB 68, in which the Court reviews extensively the use of electronic disclosure as opposed to paper disclosure.