Right to Access E Disclosure while in Custody – Lack of access to the Crown’s Electronic or E-disclosure resulting in a new trial

Published On: Jul 13,2020

Lack of access to the Crown’s Electronic or E-disclosure resulting in a new trial

There has been a growing trend towards electronic disclosure over paper-based disclosure. While there is some support for electronic disclosure, it has met some resistance. Some have suggested that “[t]he increased use of technology in society presents justice personnel with a number of challenges with respect to disclosure. Video evidence is frequently collected from a number of public and private sources—including security cameras, smart phones, wiretapping, police recording of statements—and this has the potential to generate unwieldy volumes of electronic evidence. Storing, cataloguing and retrieving this evidence has generated the need to fulfill disclosure requirements using only electronic formats. Electronic disclosure is already a reality to some degree across the country; however, the progress toward fully electronic disclosure has been hampered by a resistance to change from paper copies, outdated or incompatible technology structures and capacity, misaligned operational practices within the justice system and financial barriers to adopting new technology.”  Yet another concern is access to E-Disclosure while in a prison facility. This is concern where there is no access to computing hardware or the materials while being held in custody prior to trial without counsel.


In Regina v. Vickerson, 2020 ONCA 434 (RD), the Ontario Court of Appeal set aside the accused’s convictions for theft under $5,000, five counts of possession of fentanyl for the purpose of trafficking, conspiracy to traffic fentanyl, and ten counts of uttering a forged document. The defendant enumerated various grounds in his appeal, namely that (i) He was self-represented and incarcerated throughout trial, (ii)  he was not sufficiently assisted by the trial judge and (iii) he did not receive access to the Crown’s digital disclosure because he had no computer access at the remand facility. In fact, he only received access to the digital materials entered as exhibits after the conclusion of evidence. This appeal turned on the third ground.


The court allowed the appeal on the basis that the accused, who had no computer access at the remand facility, did not receive access to the Crown’s digital disclosure before and during his trial. In ordering a new trial on all counts, the court rejected the accused’s submissions that (1) because he had served a portion of his sentence, he should be acquitted of the five counts of possession of fentanyl for the purpose of trafficking and the conspiracy to traffic fentanyl; and (2) the verdict was unreasonable.


If you have been charged with a criminal offence, contact Mr. J.S. Patel, Criminal Defence Lawyer at 403-585-1960 to arrange for virtual consultation up to 30 minutes.