Dan Scanlan kindly provided a few insights from the front lines on how that switch is going. Scanlan, a British Columbia crown counsel who wrote Digital Evidence in Criminal Law (Canada Law Book, 2011) has been watching the switch during his work with the Criminal Justice Branch Headquarters of the Attorney General, British Columbia (AGBC) and in other work as well.
With digital source material, specific facets of privacy can get complex. For instance, a user might have a reasonable expectation of privacy for data on a home computer, but if copies of it exist elsewhere, the argument takes on shades of grey. In Scanlan’s words:
“Those charged with cyber crime offences will often know they are essentially broadcasting information to the web at large, but profess great surprise when police are able to obtain it. Without some knowledge of how computers interact with the internet, it is difficult for counsel to determine which data is resident on a home computer and which is now resident on internet servers where there may be no reasonable expectation of privacy.”
There is no question that electronic evidence per se is admissible, but that doesn’t mean that everything the Crown proffers has been properly authenticated. Scanlan’s main concern here, a concern shared by members of the defence Bar, is that defence counsel rarely challenge admissibility of evidence because they “do not have the ready access to forensic examiners enjoyed by Crown.”
Scanlan admits a standard format for disclosure would improve efficiency, but he can’t see how the legal system in Canada would get there. Consider the three obstacles Scanlan lists here:
- PDF has become something close to a standard format, but it is a long way from being used universally.
- Database litigation products employed by counsel on larger cases do not use PDF (though they can usually export in it).
- Digital evidence seized from an accused or third party will sometimes have to be disclosed to defence in “native” format to avoid alteration or loss of metadata.
EVIDENCE LAW REFORM
According to Scanlan: “The Canada Evidence Act already contains a number of provisions regarding the use of digital evidence. Statutory exceptions to the hearsay rule, based on necessity and reliability, would avoid situations where too many witnesses are called to prove digital evidence.”
ARE DEFENCE COUNSEL READY FOR ELECTRONIC DISCLOSURE?
In a word, yes. The desire to cling to paper-based disclosure has largely given way to e-disclosure, Scanlan says, adding “disputes are more likely to occur around format and organization than the type of disclosure.”
In larger cases, the only real barrier Scanlan notes now is whether defence counsel own or know how to use a “full litigation database product”. With new electronic discovery products on the market every day, it seems defence counsel are running out of excuses.