COURT FILE NO.: CR-19-00000259-00MO DATE: 20200723 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Susan Adams and Lindsay Kromm for the Crown Respondent

• and -

MEKHI CUFFIE Applicant Joel Hechter for Mekhi Cuffie

HEARD: March 2, 2020

RULING ON DISCLOSURE APPLICATION

CORRICK J.

Overview

[1] This is a disclosure application, sometimes referred to as a “Dunn” motion. The Applicant is not arguing that the Crown has not made full disclosure. Rather, he argues that the disclosure, which has been made in electronic form, is not meaningful disclosure because it is not reasonably searchable and is therefore not reasonably accessible, compromising his right to make full answer and defence. As a result, he seeks a remedy pursuant to s. 24 of the Charter requiring the Crown to produce the material that has already been disclosed, and any material that will be disclosed in the future, in a searchable and indexed format.

[2] Mr. Cuffie was arrested following a large-scale police investigation, known as Project Kraken. This project and its offshoot, known as K2, culminated in the arrest of 96 people and the laying of 276 charges. The Crown has divided the charges into 19 groups. Mr. Cuffie faces charges, along with three others, in Group Five. It is alleged that Mr. Cuffie conspired with others to transport and traffic drugs between Toronto and Thunder Bay. He is charged with three counts of conspiracy to traffic in cocaine, two counts of conspiracy to possess the proceeds of crime, two counts of possession of the proceeds of crime and one count of possession of cocaine for the purpose of trafficking.

[3] According to the Crown’s factum, the case against Mr. Cuffie is based almost exclusively on communications that were intercepted pursuant to two Part VI authorizations signed on March 25 and May 21, 2019. In addition to the intercepted communications, the Crown will call evidence related to the seizure of cocaine and money alleged to be the proceeds of crime, and expert evidence related to drug trafficking and coded language.

[4] A central plank of Mr. Cuffie’s defence will be a challenge to the Part VI authorizations. The police became aware of Mr. Cuffie while investigating someone who had been named in the first Part VI authorization. To defend Mr. Cuffie, Mr. Hechter, his counsel, wants to review the basis for the issuance of both Part VI authorizations. Mr. Hechter submits that to do so properly, he must be able to search the electronic disclosure to identify the officers who investigated the person named in the first authorization and the officers who investigated Mr. Cuffie prior to the second authorization, and review the notes and reports made by those officers to determine what they knew and when they knew it.

The Disclosure

[5] The Crown provided disclosure to defence counsel in nine waves between July 25, 2019 and January 23, 2020. The disclosure was stored on 30 separate USB flash drives and discs. Much of it was distributed in encrypted form and had to be decrypted before it could be searched.

[6] Each wave of disclosure was accompanied by an Excel spreadsheet that set out the file name of every item disclosed, the name of the folder in which the file was located and the date on which it was disclosed. Although the Crown referred to this document as a “detailed rolling index”, it is more accurate to refer to it as a table of contents.

[7] The disclosure contains approximately 7,000 written documents, totalling more than 318,600 pages. Most of the written documents (6,839) are in PDF format. These documents are images of text and are not searchable unless additional steps are taken to convert the image‑based text to machine-readable text. Most of the PDF documents (4,860) had been converted to machine-readable text before being disclosed to defence counsel. However, 1,979 PDF documents remain unsearchable.

[8] The disclosure also includes more than 9,000 audio calls and thousands of videos and photographs.

[9] The disclosure is sorted into categories using the Major Case Management System (“MCMS”). The MCMS categories were described by Crown counsel in a letter sent to defence counsel on October 3, 2019. It listed the 35 different categories of evidence. For example, MCMS 010 is designated for police notes. MCMS 020 is for Part VI authorizations.

[10] Some of the charges laid have been given an “Event Number”. Mr. Cuffie is charged with “Event 10”. The Crown has provided Mr. Hechter with a detailed summary of Event 10 that includes the names of the people charged in that event, the addresses and phone numbers associated with each of them, a synopsis of the allegations, and the intercepted calls and text messages relevant to each charge.

[11] Finally, prior to the judicial pre-trial held in the Ontario Court of Justice, Crown counsel gave Mr. Hechter a detailed summary of the evidence, including a transcript of the telephone calls and text messages relied on to prove the charges against Mr. Cuffie.

[12] In response to some of the issues raised by Mr. Hechter in this application, the Crown provided him with a single unencrypted hard drive containing all of the disclosure provided up to January 23, 2020. In addition, a second column was added to the rolling index, indicating the device (USB or disc) on which a file is stored.

Searchability

[13] The main issue in this application is whether the disclosure is reasonably searchable. Matthew Musters, a forensic analyst and investigator for Computer Forensics Inc., reviewed the disclosure the Crown had provided Mr. Hechter and analyzed it for searchability. He demonstrated how the database of disclosure was organized and how it could be searched.

[14] Mr. Musters testified that the disclosure was made up of 24,493 files, including 9,309 WAV (audio) files, 2,650 JPG files (photographs), 6,839 PDF files and 5,695 OTHER files.

[15] At particular issue in this application are the 6,839 PDF files, which total 318,655 pages. Mr. Musters analyzed the PDF files and determined that 4,860 files were searchable while 1,979 were not. In addition, he testified that the disclosure included 3,229 image files, which could also contain text that is not searchable, but he did not analyze those files.

[16] The searchable PDF files were machine-readable because they had gone through a process known as Optical Character Recognition (OCR) before they were disclosed to the defence. The OCR process converts images of handwritten or printed text into searchable, machine-readable text. Mr. Musters was able to convert the image-based text in the 1,979 non‑searchable PDF documents to searchable text using the OCR process.

[17] Mr. Musters testified that the OCR process is not perfect. The process works very well with printed text but has a higher margin of error with handwritten text. He was unable to say what that margin was.

[18] Once the documents are converted to machine-readable text, an index can be created. The index is a database that contains a record of every word in every file, allowing a user to instantly search all of the files. An index cannot be created with image-based text.

[19] Mr. Muster demonstrated some of the issues with using the rolling index to find specific documents. He also demonstrated the effect of converting image-based text to machine‑readable text.

Positions of the Parties

Position of the Applicant

[20] The Applicant’s position is that the disclosure provided is not meaningful because it is not accessible. It is not accessible because of the manner in which it is organized and because many documents remain non-searchable.

[21] The Applicant accepts that the disclosure does not have to be perfectly organized and perfectly searchable, but it must be sufficiently so to allow him to prepare for trial in order to make full answer and defence.

[22] He acknowledges that the Crown has improved the disclosure by consolidating it onto a single hard drive in unencrypted form and adding a column to the table of contents identifying the specific device on which the material is stored. However, 1,979 files are in PDF format and remain unsearchable.

[23] The Applicant seeks an order that those PDF documents already disclosed be redisclosed in a searchable format and that all future disclosure be in a searchable format.

Position of the Crown

[24] The Crown’s position is that they have fulfilled their disclosure obligations under R. v. Stinchcombe, [1991] 1 S.C.R. 326. The disclosure as a whole is reasonably accessible, given the tools the Crown has provided. These tools include a very detailed summary of the evidence the Crown intends to present to prove the charges against Mr. Cuffie, including the text of the intercepted communications the Crown will rely on, a detailed rolling index, the use of MCMS categories, and identifiable file names.

[25] The Crown further argues that the manner in which disclosure is provided is within the Crown’s discretion, and that discretion has been exercised properly in this case. The electronic documents have been disclosed in PDF format to prevent any modification. Although not all of the documents have been rendered searchable through the OCR process, certain important documents have. The Informations to Obtain the wiretap authorizations and other warrants, together with the appendices, have been through the OCR process to allow counsel to use these documents as a starting point for their review of the disclosure. In addition, the text of all intercepted communications, both telephone conversations and text messages, is searchable.

[26] The Applicant seeks perfect disclosure where every page of every document is searchable, according to the Crown, and this is impossible to provide given the limitations of the available technology. The Crown is not required to provide perfect disclosure or disclosure in the format requested by the defence. It is only required to provide disclosure that is reasonably accessible.

The Law

[27] There is no dispute between counsel about the governing legal principles. Counsel part company on the application of the legal principles to the facts of this case.

[28] The fundamental principles governing disclosure laid out by the Supreme Court of Canada in Stinchcombe apply to electronic disclosure. It is a principle of fundamental justice that an accused person is entitled to disclosure of all relevant information in the possession or control of the Crown relating to the investigation of the accused person. This is necessary to allow the accused person to make full answer and defence: Stinchcombe, at paras. 7 and 22.

[29] Although the Crown has the discretion to determine the manner in which disclosure is made, the disclosure must be meaningful to allow the accused person to make full answer and defence: York (Regional Municipality) v. McGuigan, 2018 ONCA 1062, at para. 94. The exercise of that discretion is reviewable by the Court: Stinchcombe, at para. 21.

[30] The Crown is not required to provide perfect disclosure, or disclosure in the format preferred by the accused person, or even in the most user-friendly format: R. v. Grant, 2003 MBQB 237, at para. 43; R. v. Jennings, 2017 ABQB 288, at para.10; R. v. Greer, 2006 BCSC 1894, at para. 23, citing R. v. Lam, 2004 ABQB 101. As long as the Crown has provided meaningful disclosure, the Court ought not to interfere with the Crown’s discretion.

[31] The jurisprudence has identified the following characteristics of meaningful disclosure:

1. It must be accessible: York (Regional Municipality) v. McGuigan, at para. 94. In the context of electronic disclosure, this means that it must be organized and searchable: R. v. Dunn, 2009 ONSC 75397, [2009] O.J. No. 5749 (S.C.), at para. 61; R. v. Beckett, 2014 BCSC 731, at para. 8.

2. The information disclosed must be capable of identification: York (Regional Municipality) v. McGuigan, at para. 94.

3. It must enable proper trial preparation: York (Regional Municipality) v. McGuigan, at para. 94.

4. The accused person must be able to access the disclosed information in court, if necessary: York (Regional Municipality) v. McGuigan, at para. 94.

[32] The question of whether electronic disclosure is meaningful must be considered in the context of all of the circumstances of the case. Is the accused person able to access it? How well organized is it? How searchable is it? How voluminous is it? As Boswell J. noted in Dunn at para. 59, “the importance of organization and searchability increases proportionately with the volume of material disclosed”.

[33] When reviewing the facts and circumstances of the case to determine whether the Crown has fulfilled its disclosure obligation under Stinchcombe, the Court must balance the Crown’s duty to disclose with the difficulties of providing such disclosure. Consideration must be given to the time and expense required to provide the disclosure in a case involving voluminous amounts of material: Grant, at para. 21 citing R. v. Chow, 2001 BCSC 845, [2001] B.C.J. No. 2938 (S.C.).

Findings and Analysis

[34] In my view, the Crown has not satisfied its obligation to provide meaningful disclosure in this case. The disclosure is not reasonably accessible to the Applicant because it is not organized, and it is not reasonably capable of being searched.

[35] The “detailed rolling index” provided by the Crown is not an alphabetical listing of keywords or topics and their location within the disclosure material, making it easier for a user to find the information being sought. Rather it is a catalogue of material that has been disclosed, listed in order of the date on which it was first disclosed and by the device on which the material is stored.

[36] The disclosure is stored on 30 different devices, all of which have been copied on to an external hard drive. The root directory of the hard drive consists of nine directories, one for each of the nine dates on which disclosure was made. Each directory contains sub-directories sorting the material further by for example, MCMS category or event number.

[37] The rolling index is lengthy. It contains more than 20,000 lines. It would amount to 996 letter-sized pages in length if printed.

[38] The Crown submits that the index is fully searchable. One can search for any term that appears in the index, either in the name of a file or in a heading or subheading. The file names are therefore important to anyone searching for a particular document. One cannot search the contents of the files from the index. Once opened, a PDF document that has been through the OCR process can be searched. The 1,979 PDF documents that have not been through the OCR process cannot be searched, even once opened.

[39] The importance of file names was illustrated during Mr. Musters’ evidence when he searched for the Information to Obtain a Search Warrant (“ITO”) for 550 Brimorton Drive. Two files that included 550 Brimorton Drive in their names were listed in the rolling index. Neither file was the ITO.

[40] The ITO was ultimately found in a PDF document named, “2019.06.19 92 Crockford Blvd. SW 487 and CDSA Search Warrants 4813-19-002649-00 MFD PL Redacted”. This document, which was 712 pages in length, was a compilation of 21 separate search warrants. The search warrant for 550 Brimorton Drive was at page 26 of the document. The ITO for the warrant started at page 374.This document was not searchable. The document had to be opened and scrolled through to find the ITO.

[41] The search for this document was made more difficult because it was listed in the rolling index under the heading “MCMS 030”, the category for “Search Warrants – Not Executed”. The warrant had been executed.

[42] This ITO could not have been found by searching the disclosure material with the tools provided by the Crown. Crown counsel submits that they will assist any defence counsel who is having difficulty finding a document in the disclosure materials. Defence counsel need only call them. This level of cooperation between counsel is laudable, but it is not a substitute for disclosure that is reasonably searchable. Defence counsel must be able to review disclosure independently of the Crown. Similarly, defence counsel must be able to access disclosure information in the courtroom without having to seek the assistance of Crown counsel.

[43] Some files are not identifiable by the file name. For example, a folder named “T-D Scanned Documents” contains 68 PDF documents, none of which are searchable. Some of the documents are a single page, some are much lengthier. They are named with a combination of letters and numbers that provide no clue about the nature of the document or its source. One of these documents was reviewed by Mr. Musters during his evidence. That particular document is not relevant to Mr. Cuffie, Crown counsel argues. It is unclear to me how defence counsel could know whether any of the 68 documents was relevant without reviewing each one.

[44] The MCMS categories have been used to classify the disclosure logically to facilitate defence counsel’s review. There are 35 different MCMS categories. The nature of the evidence included in some of the categories is self-evident, and defence counsel can be expected to know what type of evidence they include. For example, “MCMS 022 Relevant SRI-WAV (Intercepts)”, includes the audio of the intercepted telephone calls.

[45] Other categories are not as obvious. For example, a review of the items filed under MCMS 008 – Police Reports revealed, among other things, wireroom reports, supplementary reports detailing surveillance operations, supplementary reports describing scenes captured by surveillance cameras, reports prepared by agencies other than the police, such as provincial government ministries and the Canada Border Service agency, Google searches, and a video of a person holding and unloading a handgun and displaying a large amount of cash. Defence counsel could not be expected to search in MCMS 008 – Police Reports for some of this material.

[46] Some material is classified under several categories. Persons of Interest Reports can be found under their own category, MCMS 033, under MCMS 008 – Police Reports or under MCMS 010 – Police Notes. Similarly, reports outlining surveillance operations are filed under MCMS 021 – Surveillance, MCMS 008 – Police Reports and MCMS 010 – Police Notes.

[47] None of the hand-written police notes have undergone the OCR process and are thus not searchable. Mr. Musters testified that hand-written text can be converted into machine-readable text by the OCR process. The accuracy of the conversion depends on the legibility of the handwriting. Many police officers embedded type-written reports and other type-written documents in their notes. Police Reports and Persons of Interest Reports are two types of reports found in officers’ notes. Type-written reports can be accurately converted into machine-readable text.

[48] The Crown argues that it is unnecessary to OCR police officer’s notes to access embedded type-written reports because those reports are filed under other MCMS categories. However, this is not always the case, as Mr. Musters demonstrated when he searched for a Persons of Interest Report found embedded in the notes of one officer. That Report was not found elsewhere in the disclosure.

[49] Having spent a considerable number of hours working with the table of contents and accessing the material on the hard drive, I have concluded that the disclosure material in its current form is not reasonably accessible. The table of contents is unwieldly. It lists more than 20,000 items and, if printed, would be more hundreds of pages in length. The chance of finding what one is searching for largely depends on how the file is named. In addition to the shortcomings in the table of contents, I have already noted the lack of consistency and precision with which material is sorted in the MCMS categories. Material in any one category is sprinkled throughout the disclosure. The contents are organized by the date on which the material was disclosed rather than by category of material.

[50] One cannot search the entire database of disclosure from the table of contents. Each document must be opened individually and searched. Many documents cannot be searched at all because they are in PDF format and have not been converted to machine-readable text.

[51] There are some critical differences between this case and those in which electronic disclosure was found to meet constitutional standards.

[52] In Jennings, supra the court found no deficiency in the organization of the documents in the disclosure. There was no evidence that a disclosed document could not be readily found using the software provided by the Crown. The hard drive was very large, and the time it took to search it was lengthy. However, the entire hard drive was searchable as was the contents of all the type-written documents. That is not possible in this case.

[53] In R. v. Therrien, 2005 BCSC 592, the accused sought paper copies of fewer than 20,000 pages of electronic disclosure because his counsel did not have a computer. The court refused, finding that the electronic disclosure was organized in an understandable fashion. The material was divided into broad categories in a table of contents. All of the documents, including handwritten documents, had undergone the OCR process and were searchable. The documents listed in the table of contents were directly linked to the file, allowing the user to go directly to the file by clicking on the file name in the table of contents. These features do not exist in the case at bar.

[54] In Lam, supra, the court dismissed an application to require the Crown to provide the electronic disclosure in a format and with a computer program with better search capabilities than the format and program the Crown had provided. The disclosure was created using a program with OCR capacity that rendered the documents searchable. However, the Crown did not provide that program with the disclosure, and the defence was unable to search the contents of the more than 100,000 files in the disclosure.

[55] The court noted that the defence request was not based on the inaccessibility of the disclosure. Rather it was based on the fact that the Crown did not provide the best tool for accessing it. Having found that the disclosure was reasonably accessible with the tools provided, the court dismissed the application. I have found that the disclosure in this case is not reasonably accessible.

[56] In concluding that the disclosure was reasonably accessible, the court noted that the Crown had provided defence with a much better tool to more easily access each document in the disclosure than if they had provided a paper copy of the disclosure. The Lam case was decided in 2004. The fact that unsearchable electronic disclosure is better than a paper copy of disclosure is beside the point in 2020. The test is whether the disclosure is accessible in the sense of being organized and searchable. It is not whether the tool provided by the Crown is better than another tool if neither tool renders the disclosure organized and searchable.

[57] In Dunn, supra, Justice Boswell concluded that the electronic disclosure in question was not reasonably accessible. He found that it lacked the following characteristics, among others:

1. It was not capable of a single comprehensive search.
2. Documents could not be searched for and obtained quickly, as required during a trial.
3. It contained documents that had to be individually opened and searched.
4. Some documents could not be searched at all.

[58] The disclosure in this case lacks the same characteristics. Although the disclosure in the Dunn case involved many more pages of image-based text (22 million), these deficiencies are nevertheless significant in the case at bar, which involves more than 300,000 pages of image‑based text.

[59] The concept of “reasonably accessible”, which requires reasonable searchability, cannot be measured by standards set by cases decided more than ten or fifteen years ago. Technology has advanced to the point where “reasonably accessible” includes the capacity to search a database of disclosure and the contents of as many documents as possible. The ability to find a document cannot be limited by the manner in which the document is named in a table of contents.

[60] Even fifteen years ago, Justice Glithero noted that it was regrettable that the disclosure in the case of R. v. Barges, [2005] O.J. No. 4137 (S.C.), which was more than 24,000 pages long in printed copy, was not scanned into electronic format using an OCR program that rendered the documents machine-readable and therefore searchable. Yet in 2020, disclosure that includes more than 300,000 pages of documents, only some of which have been converted into machine‑readable text, have been provided to the defence in this case. This vast amount of disclosure is not meaningful if it cannot be reasonably searched.

[61] Whether disclosure meets constitutional standards must be assessed in the context of all of the circumstances of the case and of the accused person. Does the disclosure allow the accused person to make full answer and defence?

[62] The Crown argues that the most important documents have been through the OCR process. It is standard practice to convert the PDF documents setting out the intercepted calls to machine-readable text through the OCR process. Both Informations to Obtain the Part VI authorizations and their appendices, which total more than 4,000 pages, have been through the OCR process. The Crown argues that Mr. Hechter can start his search there and OCR any further documents he wishes.

[63] Mr. Hechter does not dispute that the disclosure of the evidence upon which the Crown intends to rely to prove the charges is reasonably accessible. However, to make full answer and defence on behalf of Mr. Cuffie, Mr. Hechter intends to challenge the admissibility of much of that evidence. He has made no secret about that. To properly prepare, he must search the disclosure beyond the evidence supporting the charges.

[64] I do not accept the Crown’s argument that Mr. Hechter is seeking perfect disclosure that will allow him to enter a search term and search the content of every document, rather than take the time to familiarize himself with the MCMS folder system and the searchable table of contents provided. I have already noted the significant shortcomings of both the MCMS folder system and the searchable table of contents. Requiring that all PDF documents undergo an OCR process will not create perfectly searchable disclosure but will create reasonably searchable disclosure.

[65] I am satisfied on a balance of probabilities that the disclosure in this case is not adequate to enable the Applicant to make full answer and defence, and thus violates his rights protected by s. 7 of the Charter.

Remedy

[66] Having concluded that the current form of disclosure does not meet constitutional standards, it is necessary to determine the appropriate remedy.

[67] Disclosure that is consistent with fundamental fairness is required: R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 194. As I earlier indicated, the court must balance the Crown’s duty to disclose and the time, expense and difficulties related to providing large amounts of disclosure. The overriding consideration however, must be the Applicant’s ability to use the disclosure to make full answer and defence.

[68] Mr. Musters testified that several software programs are available to convert image-based text to machine-readable text. Although he had experience with only three such programs, he was aware that there were several others.

[69] The Crown submits that requiring it to OCR all of the PDF documents is too onerous an undertaking for too little benefit. The conversion to machine-readable text will not be perfect giving defence counsel little confidence in any electronic search results. The equipment necessary to accomplish such an undertaking is not available to the Crown. Mr. Musters agreed with Crown counsel that the laptop that she was using in the courtroom would not be capable of performing this task.

[70] It is the responsibility of the state to provide reasonably accessible disclosure to accused persons. The means by which that is accomplished is also the state’s responsibility. The PDF documents that Crown counsel determined were important to most defence counsel in this case, such as the Informations to Obtain the Part VI authorizations, were converted into machine‑readable text prior to being disclosed to defence counsel. There is no evidence before me about the means that were used to convert them.

[71] I wish to be clear that I am not suggesting that Crown counsel in this case has purposely set out to make disclosure difficult for the Applicant to access. I recognize that there is a vast amount of material to disclose and its organization depends on human input.

[72] Disclosure in this matter is ongoing. At the hearing of this application, Mr. Hechter indicated that important disclosure had yet to be provided. He suggested that, at a minimum, the court order that all future material be disclosed in a searchable format. In my view, this proposal strikes the appropriate balance. Mr. Hechter has had access to the disclosure that formed the record before me for many months now. Given that, when I balance the Crown’s duty to disclose and the difficulties associated with re-doing what has already been done, I am not prepared to require the Crown to convert the non-searchable PDF documents that have been disclosed up to and including January 23, 2020 and re-disclose them.

[73] I have concluded that, at a minimum, PDF documents must be machine readable to provide reasonably accessible disclosure. Accordingly, with respect to disclosure provided to the Applicant after January 23, 2020, the Crown must disclose all PDF documents, type-written and hand-written, in machine-readable format.

Corrick J.

Released: July 23, 2020

COURT FILE NO.: CR-19-00000259-00MO DATE: 20200723 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – MEKHI CUFFIE RULING ON DISCLOSURE APPLICATION Corrick J. Released: July 23, 2020