The era of “avalanche” trials

The days of “ambush trials” are over. The state is not allowed to hide a card in its sleeve and shoot it down without warning to surprise an accused.

The prosecution in Canada must disclose all of its evidence to the defense, including of course anything that could help exonerate the accused. A judgment rendered in 1991 (Stinchcombe) laid the groundwork for this principle. The primary reason is obviously to avoid miscarriages of justice, many of which arose because a key witness or important evidence had been withheld from the accused.

By frankly showing its game, the prosecution is usually successful in convincing the defense that the evidence is too strong to attempt a trial. The vast majority of cases, let us not forget, are resolved through plea bargaining and admission of guilt.

An obligation for the police to pass all their evidence in, say, a “simple” murder case is not overly complicated. Notes, witness statements, photos, fingerprints, DNA, videos …

The problem, which I outlined on Monday, is that of the big files. When the evidence was patiently collected for two years. That hundreds of hours of wiretapping have been done. Hundreds of boxes of documents seized. Computer files, emails collected on more or less hard disk …

Read the column “These corrupt people we free”

These are usually cases of organized crime or wealthy criminals, who have the means to defend themselves. And there, with a little talent, we can overwhelm the court with endless requests, suck every hair of every frog in the gigantic pond of the cause.

“After the ambush trial, we moved into the era of avalanche trials,” summarizes lawyer Dominic Jaar, lawyer specializing in electronic evidence management at KPMG.

“We are caught in the iron triangle of disclosure-deadlines-fruits of searches”, summarizes an experienced prosecutor.

Each vertex of this triangle affects the other two. You have to manage the mass of information entered; anything that is not “clearly irrelevant” should be communicated; and we must respect the steel deadlines of the Jordan decision – which had the not insignificant effect of reducing all the delays, but at the cost of numerous judicial abortions.

Managing the mass of information, of course, means going through it. To sourt out. It also sometimes means excluding from the evidence conversations involving a lawyer, protected by professional secrecy.

Several of the recently aborted cases were the result of investigations several years ago. Police and prosecution services have adjusted. First, we grab as little material as possible. Then, the charges are filed as late as possible, so that the timer does not start too quickly.

The fact remains that the legal obligations built over the years for good reasons, for better justice, have ended up adding up to the point of becoming unmanageable in certain cases.

In some cases, one can blame the police or the prosecution, as the excuse of complexity is sometimes easy to use to cover up an error or incompetence.

But incomplete disclosure is not necessarily indicative of police dishonesty.

Dominic Jaar has been at the forefront of this kind of issue for 20 years. Although he does not practice criminal law, he is very familiar with the systems used by police services, prosecutors and the courts.

He knew the days when, in a private civil case, the other party demanded that electronic evidence be transcribed on paper. “I sent them an 18 wheel truck. ”

We are no longer there, but we sometimes have the impression that the criminal justice system is equipped with 15 years of delay.

He agrees with many that the rules for the disclosure of evidence date from another era, are inappropriate and “must be reformed”.

Americans have less restrictive rules.

But above all, he thinks that police forces are terribly ill-equipped to handle electronic evidence.

There are increasingly powerful IT tools that cost less and less to gather evidence more effectively – for example, mirror evidence and leave IT equipment with the suspect, instead of grabbing everything and disclosing it. piece. There are also “robots” to electronically analyze the content of evidence. From research “on steroids,” he says.

“Human beings cannot manage millions of pages of documents”; and if they can, it’s an insane waste in 2021.

The Electronic Discovery Institute, an American organization, had examined the performance of a text analysis robot – which assumes an understanding of the content, of the context. What a team of analysts had managed to do in three months, the robot had accomplished in two weeks, more accurately. The same goes for the audio proof; electronic conversation analysis is now very sophisticated – the robot can pick up tone of voice, etc.

Some police forces have very powerful tools, but they are too rare; the “critical mass” is not there, according to him.

“The rules should be reviewed in criminal matters, but so should the ways of working,” said this expert.

I have written extensively to criticize the slippages, delays and blunders of the Permanent Anti-Corruption Unit. We’re not at the end of our bad surprises, I’m afraid.

But the police forces work in a context of legal and technical heaviness that cannot be allowed to swell to the point of absurdity.

The judicial process stoppages of recent months and years, all these cases that ended up fishtail undermine the credibility of the fight against banditry and corruption. It is far from being solely “the fault of the police” or the prosecutors.

The departments of Justice and Public Security, at the federal level as in Quebec, have an urgent modernization project to undertake. Laws, like equipment, need to be updated to deal with major crime.

We cannot let major investigations go to waste like this. What is called in court the “confidence of the public” took for its cold; it might be necessary to react before dealing with it further.