Precedent - Disclosure-related Filings

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Undertakings

Undertaking When Disclosing Unvetted Disclosure for Bail Undertaking When Disclosing Sensitive Electronically Materials


C A N A D A File# ________________
PROVINCE OF [PROVINCE]
COUNTY OF [COUNTY]

IN THE [LEVEL] COURT OF [PROVINCE]

BETWEEN:

HER MAJESTY THE QUEEN

– and –

[ACCUSED NAME]




UNDERTAKING
(Electronic Device(s)




I, ________________________________, Defence Counsel for ______________________________ in relation to Criminal charges under Section(s) ______________________ arising on or between (insert date here)_________________________, by accepting receipt of (insert device name here) ____________________ (hereinafter “device”) do hereby undertake as follows:

  • I will keep the device in my possession and control and store it in a secure place within my law offices;
  • I will not release custody of the device to any person except members of [appropriate police force], or members of the [Crown attorney office];
  • I will not permit any other lawyers or staff within my office to have access to the contents of the device;
  • I will not disclose the password for the device to anyone, except in relation to a retained expert;
  • I will only permit access to the device by an expert retained by me in accordance with the following provisions:
    • My expert will only have access to the device for the purposes of forensic examination and presentation of evidence in the trial of this matter;
    • I will take all reasonable steps to ensure that my expert uses the device in a secure manner;
    • I will ensure my expert does not copy the contents of the device except for legitimate forensic purposes;
    • Should my expert be required to copy the contents of the device for legitimate forensic purposes, I will ensure that all copies are accounted for and dealt with in accordance with the undertaking including ensuring that all copies of the contents of the device are securely erased from my expert’s computer in accordance with the terms of these undertakings;
    • Should my expert require the use of the contents of the device at their business premises located at ___________________________ for legitimate forensic purposes, I will ensure that the device is at that location for only as long as is necessary and that the device and its contents will be handled by my expert in a secure manner;
    • Prior to permitting my expert to remove the device and its contents from my premises, I will provide Crown Counsel with notice of my intention and provide Crown Counsel with all relevant information as to the means by which the device will be kept secure
  • I will not release the device to my expert without the express consent of Crown Counsel
  • I will not permit the accused to possess or control the device;
  • I will not allow any persons except my expert, and the accused while in my presence, to view the images or videos contained within the device;
  • I will not, nor will I permit any person employed at my office, to make any copies of the contents of the device except for the purposes of preparation and presentation of the defence in this matter including any appeals or retrials;
  • any copies of any portion of the contents of the device made by me or any person employed at my offices will either be returned to members of the [appropriate police] or members of the [Crown attorney], or securely erased in accordance with these undertakings;
  • I will not connect the device to the internet, either through a hardwired connection or wirelessly;
  • I will not connect a storage medium to the device;
  • for the purposes of this undertaking I understand “securely erased” means the following:
    • All the copies of the device or any portion of it will be deleted from all computers to which I have copied it;
    • I will obtain and use digital wiping software to overwrite the entirety of my computers unallocated storage space;
    • I understand the term “unallocated space” means all digital storage space contained on the computer that is not currently being used by computers operating system;
  • at the conclusion of all litigation in relation to these charges, I will return the device that was provided to me to [approrpriate police] or a member of [Crown attorney office];
  • I will erase my record of the device’s password that I have been given;
  • I will return the device promptly at any time that the Crown Counsel requests

DATED at ______________, in the Province of _______________, this _____ day of _____________, 20___.

_________________________________________
Counsel for the Defence


_________________________________________
Witness


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