Written documents may now be created in electronic form. Signatures may be signed electronically. The prosecution may provide electronic disclosure. The Ontario Court of Appeal currently requires that a copy of the prosecution and defence factums be provided to the court by disk or by e-mail. Prosecutors are able to provide disclosure to the defence by e-mail, disk or hard drive. The cost of printing disclosure sent electronically is then borne by the accused rather than the prosecution.
If the Crown takes the position that it will not provide anything but electronic disclosure, the defence may raise the issue during a judicial pre-trial or by way of pre-trial application. The Superior Court of Justice has jurisdiction to deal with an accused’s application under section 7 of the Charter. The application will allege a breach of the prosecutor’s disclosure obligation.1