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Police embracing e-disclosure

|Written By Michael McKiernan

When Toronto police Det. Greg Groves joined the homicide squad in 2004, two of the most important players in the elaborate process that delivered disclosure into the hands of defence counsel were the photocopier and the printer.

‘It’s hard to get people who’ve grown up on paper to really think about working digitally,’ says Edward Prutschi.

“We set up a committee because we needed to look at alternatives to these boxes and boxes of material that were being produced,” says Groves, a leader in the force’s electronic disclosure efforts.

“Then, of that hard-copy disclosure that was sent out, how much of it was actually relied upon on the day of trial? In a major case, maybe 10 per cent.”

From rudimentary beginnings that saw some Microsoft Word and Excel documents burned onto CD, Groves, catalyzed by the 2008 report to the Ontario government on large and complex criminal trials, now has the disclosure package down to a single PDF document on a flash drive.

The 2008 report identified disclosure as “a constant source of dispute and difficulty in long complex cases in Ontario” that in turn was “a serious cause of delay and inefficiency.” It went on to suggest that electronic disclosure could play a role in improving the system.

For almost two years, officers in the homicide and other major crime squads have compiled the PDF documents based on the province’s major case management structure. It includes an index, transcripts of interviews, crime-scene photos, and other notes and documents generated during police investigations.

Since most of the information pulled from police databases and reports originates electronically, Groves says paper content is often limited to officers’ handwritten notes, which they scan and add to the package.

Investigating officers suggest redactions of irrelevant or privileged information in the package on their computer screens and then turn it over to the Crown office on a flash drive. All the Crown has to do is confirm the redactions. At that point, it’s ready to go onto a CD sent straight to the defence.

This summer, Groves has been heading up a pilot project that rolled out the process to divisional officers working on less serious crimes. The effort started with 32 Division and the Crown office at the 1000 Finch Ave. W. courthouse in Toronto.

“The big plus in using that file management structure is it standardizes how a case is filed and managed,” Groves says. “Every case looks the same, whether it’s a homicide, a road rage, a shoplifter or a sex assault. It all looks, feels, and operates the same way.”

Edward Prutschi, a defence lawyer with Adler Bytensky Prutschi Shikhman in Toronto, says the organization of and ability to search the document set the Toronto pilot apart from electronic disclosure experiments he has seen in other jurisdictions.

“Sometimes, it’s really just a document dump, and finding something specific in an 800-page PDF isn’t a whole lot easier than finding it in an 800-page stack of dead wood. The difference in Toronto is that it’s codified and consistent for every case. Officers’ notes or cellphone records are in the same place every time.”

Toronto police follow two disclosure deadlines. The first is for basic disclosure after 15 days. The second comes after 35 days when disclosure should be substantially complete to allow for a meaningful discussion between the Crown and defence on resolution. Groves says the pilot’s impact was immediate.

“What we’re finding is that the 35-day requirement is being met within the 15-day period. Things are going faster, and it all tends to earlier resolution.”

The pilot has since expanded to include all four divisions feeding the North York courthouse. By October, Groves says police across the city will be ready to adopt the process. A team of 10 dedicated instructors is now training lawyers and staff at Crown offices around the city to make sure they’re up to speed for the launch.

“There are technical hurdles that we’ve been meeting along the way, as well as human error,” Groves says. “The level of technical ability varies from person to person.”

About 20 defence lawyers have also attended sessions to learn more about the disclosure packages. Defence counsel can open the documents using free software rather than the expensive professional version police are using to compile them. Groves says police can even provide a software add-on that allows defence counsel to put in their own notations and reorganize the package depending on what they need for particular court hearings.

According to Groves, defence counsel are impressed by the dramatic savings police have found in printing and storage costs as a result of the project.

“The defence bar is buying this new era faster than the Crowns are. They’re private business people, and all of their expenses are their own. They see the advantages of going electronic and the flexibility of this tool,” Groves says.

“It’ll be a real advantage once we’ve all gotten up to speed with it,” says Prutschi, who was one of the lawyers to sign up for the training. “We’ll be one step closer to that lawyer’s dream of carrying all your cases in one briefcase.”

But Prutschi expects some resistance from both sides of the criminal bar. “It’s hard to get people who’ve grown up on paper to really think about working digitally.

It does require a level of sophistication that most users probably don’t have. But that’s something that’s coming, and in the relatively short term, I think this is going to become the default option. Those who think we are going to continue to work in a dead wood media environment are going to have to think again and start learning.”

This is the fifth instalment in Law Times’ summer series on innovation and the law.

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