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S.C.C. No. 35390
IN THE SUPREME COURT OF CANADA
[On Appeal from the Court of Appeal for Ontario]
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
-and –
VINCENT QUESNELLE
Respondent
_____________________________________________________________________________
FACTUM OF THE RESPONDENT
_____________________________________________________________________________
PART I: STATEMENT OF FACTS
Overview
1.
The Appellant invites this Honourable Court to arrive at a decision that would upset the
constitutional balance between the privacy and equality rights of complainants, and the full
answer and defence rights of the accused, by improperly cloaking relevant routinely disclosed
material, under the label of privacy. To deny access to this material would undermine the
principle that full disclosure of relevant non-privileged information is the cornerstone of the
accused’s right to full answer and defence.
The Appellant argues that occurrence reports
pertaining to complainants and witnesses in sexual assault prosecutions are Mills regime records.
This argument relies on a number of trial level decisions, and on a policy which seeks to protect
victims of sexual violence from abusive cross-examination. Respectfully, the Appellant’s
argument ignores two vital factors. First, these various trial level decisions resulted from an
unprincipled application of the Mills regime to forensic documents. Second, the remedial aims of
Bill C-46, are not undermined by the disclosure of police occurrence reports. The s. 278 regime
protects private records of complainants and witnesses to prevent the defence from delving into
private records in order to elicit evidence that has virtually no probative value, the use of which
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would humiliate the complainant and subvert the truth seeking function of the trial. Occurrence
reports and related investigative materials do not bear the hallmarks of records targeted by s.
278. The materials contain useful, relevant information created and used in an
investigative/forensic context. The disclosure of the materials to the defence advances rather than
subverts the search for truth. Once the issue of a reasonable expectation of privacy is separated
from the core issues in this case, the only argument available to the Appellant for denying
disclosure is the administrative burden placed on the Crown to vet occurrence reports prior to
disclosure. The burden to the Crown does not afford a proper basis to limit an accused’s
constitutional rights.
FACTS
2.
The Respondent testified that he knew both Complainants well, having paid for both drugs
and sex from each of them over several years. The Complainants denied having a history with
the Respondent, or knowing each other. During the trial, and after an unsuccessful severance
application, T.R. acknowledged that she knew L.I. and L.I.’s mother.
Respondent’s Record Tab 9 Transcript, May 18, 2010 at pp. 104-109
3.
T.R. reported the allegations of sexual assault months earlier than L.I. Police did not locate
a suspect for T.R.’s alleged assault, until L.I. made her report to the police. When police arrested
the Respondent for the sexual assault of L.I., an officer searched through police databases for
similar occurrences on the mobile data terminal in his cruiser and located details of the T.R.
occurrence.
Respondent Record Tab 10, May 20, 2010, p. 14- p. 22 at pp. 111-113
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4.
In the summer of 2009, C.B.C. Radio aired a documentary called “Tanya’s Trial”. In the
documentary, the officer in charge of the prosecution, Detective Leaver (“Leaver”), discussed
the Quesnelle prosecution, and four to five occurrence reports pertaining to T.R. which Leaver
accessed through her searches of police computer databases. In the documentary, T.R. referred to
facts underlying the allegations in R v. Quesnelle, but melded in separate and unrelated facts.
In the documentary, T.R. described a sexual assault which included details of a van, a dirty bed,
and dirty laundry. These facts comported with the facts in the Quesnelle prosecution. However,
in the documentary, T.R.’s description of the events included details of being cut, being held
hostage, and being discovered in a pool of blood by police. The Quesnelle case did not raise
facts concerning being cut, pools of blood, or being held hostage.
Respondent’s Record Tab 4 - Excerpt of Transcript of Documentary “Tanya’s Trial” p.11
5.
Defence counsel questioned T.R. about the discrepancies between her account of the events
in the documentary, and the factual allegations in the Quesnelle prosecution. T.R. responded that
the details concerning the blood and hostage-taking involved a separate and unrelated sexual
assault, and that she had reported that event to the police. This is significant for the defence,
because if T.R. reported the hostage-taking event to the police, then that event would be captured
in a police occurrence report. Consequently, the reliability and veracity of her testimony could be
undermined. If the occurrence reports revealed no such incident, then T.R. either exaggerated
the story in the documentary, lied in her testimony, fabricated the story, or may be incapable of
separating events if indeed there were two separate assaults. When questioned by defence
counsel, T.R. refused to discuss these matters further. Defence counsel cross-examined T.R.
without the benefit of the occurrence report. .
Respondent’s Record Tab 4 - Trial Transcript Excerpt of Evidence of T.R. p. 121-127, 145-148
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Defence Applications for Access to the Police Occurrence Reports at T.R.
6.
In a pre-trial application pursuant to Stinchcombe, defence counsel sought the disclosure of
the occurrence reports, pertaining to T.R. as a witness, person of interest, complainant or
accused.
Thorburn J. rejected the applicability of Stinchcombe, and held that the defence
application for these materials must be brought pursuant to s. 278.3 of the Criminal Code.
The
defence then brought an application for records under s. 278.3, on the premise that Leaver had
reviewed T.R’s occurrence reports in preparation for the trial. The defence also requested a
declaration that the police had an obligation to advise the Crown of the extent of occurrence
reports relating to T.R. Defence counsel explained the basis for his request: “I just don’t want to
be caught after if something else turns up, because the officer’s legal duty requires her to
disclose it to the Crown. I just do not want to be accused later of having failed to say that this is
about more than four or five occurrence reports.” In the alternative to the declaratory relief,
defence counsel asked for the Court to order that the Crown comply with the s. 278.2(3) notice
requirements. The trial Crown did not provide an inventory of T.R.’s or L.I.’s occurrences.
However, on December 9, 2009, the trial Crown gave notice of four occurrence reports, and one
police contact involving T.R.: a police contact dated February 16, 2006 at Toronto, and
occurrence reports dated April 28, 2007, January 20, 2008 and March 23, 2009, at Toronto. The
trial Crown suggested that these four items were “not likely relevant”. The trial Crown also
stated that an occurrence report dated August 9-10, 2006 at Toronto was “not clearly irrelevant”.
Tab 19 Appellant’s Record, Transcripts December 8, 2009 at pp. 116-148, Respondent’s Record
Tab 6 Transcripts December 9, 2009 at pp. 86-103, Respondent’s Record Tab 7 Transcripts
December 8, 2009 at pp. 75-76
7.
In the s. 278 application, defence counsel, concerned about contamination of the evidence
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between complainants, sought a direction to prohibit T.R.’s counsel from disclosing to T.R. any
facts that would be revealed through the application process. The trial Judge correctly rejected
the request. During the s. 278.3 application, the defence declined to refer to the facts raised in the
Stinchombe application in order to ensure that T.R. not gain notice of the facts in advance of her
testimony. Defence counsel limited his submissions on the application, and requested that the
Judge not consider evidence that she would have otherwise relied upon, in order to prevent
disclosure of the facts to T.R. and L.I. The Judge dismissed the s. 278.3 application.
Appellant’s Record Tab 20 Transcript December 21, 2009 pp. 117-141, pp. 146-174
8.
Defence counsel made a mid-trial request for disclosure of occurrence reports held by the
Toronto Police Service with respect to L.I. The Crown refused to produce the occurrence reports
on the same reasoning as articulated in relation to T.R. The defence argued that the disclosure of
the materials depended on Stinchcombe principles, but conceded that the Judge’s ruling on the
motion for disclosure of the T.R. occurrence reports would govern the L.I. application. The
defence was not in a position to bring a motion under s. 278.3 and the Crown furnished no
particulars under s. 278.2(3).
Appellant’s Record Tab 21 Transcripts May 17, 2010, pp. 175 - p. 180
9.
Defence counsel sought to cross-examine L.I. on convictions in her criminal record that
related to crimes of dishonesty. The criminal records of both Complainants were disclosed, but
without the corresponding occurrence reports.
Respondent’s Record Tab 10 Transcripts May 21, 2010, p. 135 - 144 May 25, 2010 p. 1 – 10
10.
Prior to the hearing in the Court of Appeal, appellate counsel again sought clarification on
the extent of the occurrences and received no response from the Crown. After a new trial was
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ordered, Mr. Quesnelle’s new trial counsel made a disclosure request for occurrence reports for
both Complainants. After reviewing the brief, counsel noticed that on December 29, 2006, the
same day that T.R. reported the allegations to the police, Detective Sean Griffith of the Toronto
Police Service, while working in the Criminal Investigation Bureau, conducted a search of T.R.
in Toronto Police databases. He found “371 hits” in relation to T.R., and noted that many of the
occurrences contained allegations of sexual assault similar to the one under investigation.
Respondent’s Record Tab 15 Affidavit of Paul Genua, sworn February 19, 2014 at pp. 117-119
Facts Relevant to the Proceedings at the Court of Appeal for Ontario
11.
During oral argument, the Court of Appeal proposed a resolution of the appeal where
two occurrence reports identified by the Crown as likely relevant, be produced to counsel, and
the parties would return on a subsequent day to discuss the application of the curative proviso in
s. 686 (1)(b)(iii) of the Code. Counsel to Mr. Quesnelle agreed, but requested the occurrence
reports of both Complainants for a two year span, and not just the two specified by the Crown.
When the panel asked Crown counsel about the s.686 (1) (b) (iii) issue, the Crown responded
that the lack of disclosure of one of the reports may have caused concerns about the fairness of
the verdict. Notwithstanding the position taken by the Crown before this Court, the threshold of
whether there is a reasonable possibility that the fairness of the verdict was affected by the nondisclosure has been surpassed.
Respondent’s Record Tab 14 Affidavit of Paul Genua sworn February 18, 2014, pp. 174-176
The Court of Appeal for Ontario Decision in R v. Quesnelle
12.
In concluding that occurrence reports are not “records” caught by the s. 278 regime, the
Court of Appeal took direction from the principle in Rizzo and Rizzo Shoes that in statutory
interpretation words of an Act are to be read in their entire context, in their ordinary sense and
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harmoniously with the scheme and object of the Act, and with the intention of Parliament. The
Court of Appeal reviewed the Pre-amble to Bill C-46, An Act to amend the Criminal Code
(production of records in sexual offense proceedings) 2nd Sess, 35th Parl. 1997 (assented to 25
April 1997), reviewed Parliamentary intention, considered the R v. Mills production regime, and
analysed the concept of a reasonable expectation of privacy in both Mills and Plant. After
completing its review, the Court of Appeal undertook its analysis of whether occurrence reports
fall within the term “record” in s. 278.1 of the Code. The Court determined that because of the
forensic and public purpose of the information contained in the reports, there is no “reasonable
expectation of privacy” in the occurrence reports as contemplated in s. 278.1. The Court of
Appeal’s decision rests on the term “reasonable expectation of privacy”. The Appellant
incorrectly suggests that the Court ruled that there was “no privacy” in the records. The Court
also found that because occurrence reports are “made by persons responsible for the
investigation or prosecution of the offence”, the material was exempted from the definition of
“record” by the language of s. 278.1.
PART II: QUESTIONS IN ISSUE
13.
The Respondent submits that the Court of Appeal correctly decided that occurrence
reports are disclosable as first party records based on the following:
a)
Occurrence reports are routinely disclosed in criminal litigation and have a valid
role in testing credibility and reliability of witnesses, in addition to assisting the
defence in the pre-trial stage including conducting investigations, making
decisions on agreed evidence and determining plea positions;
b)
Occurrence reports do not fall within the s. 278 legislative scheme:
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i)
While occurrence reports contain personal information with residual
privacy, the reports do not sustain a claim of a “reasonable expectation of
privacy”;
ii)
the wording of the section exempts materials created by persons
responsible for the investigation;
iii)
occurrence reports are not enumerated under the section;
iv)
because the s. 278 regime applies to witnesses and complainants the
Appellant’s position would lead to the result that the ordinary witness and police
witnesses would be shielded in respect of the forensic materials sought; and
c)
Access to occurrence reports is not governed by a third party records application.
PART III: LEGAL ARGUMENT
A.
FIRST PARTY DISCLOSURE OF OCCURENCE REPORTS OUTSIDE THE
SEXUAL ASSAULT CONTEXT
Disclosure of Material Verses the Use and Admission at Trial
14.
The disclosure obligation is a legal duty borne by the Crown and the police. The duty to
disclose all relevant non-privileged information bears of few exceptions. The Crown must
disclose materials that the defence can use to meet the Crown case, to advance a defence, or to
make decisions affecting the conduct of the defence. The right to disclosure of all relevant
material includes material which may have only marginal value to the ultimate issues at trial. A
Crown prosecutor is duty bound as a minister of justice to ensure that all relevant material in its
possession or control, regardless of whether it is inculpatory or exculpatory, is provided to the
defence. The disclosure obligations extend post- conviction and into the appellate process.
R v. Stinchcombe, [1991] 3 S.C.R. 326
R v. Mills, [1999] 3 S.C.R. 668 at para. 70
R v. Dixon, [1998] 1 S.C.R. 244
R v. Plant, [1993] 3 S.C.R. 281 at 293
R v. McNeil, [2009] 1 S.C.R. 66 at paras 17 -22
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15.
The disclosure of material is distinct from the issue of admissibility or use of the material
at trial. Relevance for disclosure purposes is broadly defined in terms of “usefulness to the
defence”, as was noted in R v. Egger:
... One measure of the relevance of information in the Crown's hands is its usefulness to the
defence: if it is of some use, it is relevant and should be disclosed-Stinchcombe, supra, at p.
345. This requires a determination by the reviewing judge that production of the information
can reasonably be used by the accused either in meeting the case for the Crown, advancing a
defence or otherwise in making a decision which may affect the conduct of the defence such
as, for example, whether to call evidence.
Admissibility is governed by issues such as propriety of questioning, the rules of evidence, and
statutory limitations. It is improper to treat production/disclosure as a proxy for admissibility. As
Binnie J. noted in R v. Shearing, “admissibility is properly left to be determined later when the
matter is ripe for decision”.
R v. Shearing, [2002] 3 S.C.R. 33 at paras. 76 and 96
R v. O’Connor, [1995] 4 S.C.R. 411 at paras. 164-166
R v. Egger, [1993] 2 S.C.R. 451 at pp. 465-467
16.
The Appellant’s argument focuses on the potential harm to the complainant when the
information in the occurrence report is used in cross-examination. The Appellant does not
distinguish between disclosure and admissibility, and makes the potential of abusive use of the
reports at trial the overriding issue. The distinction must be maintained. Occurrence reports
serve useful functions apart from the use of the information at trial. The disclosure of occurrence
reports may open up avenues of investigation. This is not a merely an abstract proposition. In this
case, what is contained in T.R.’s occurrence reports is important in determining the facts of the
case, as T.R. testified that she melded two separate incidents. Second, in looking ahead to
potential abusive cross-examination, the Appellant does not consider mechanisms that prevent
the very harm contemplated by the Appellant. For example, s.276 of the Code controls the
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admission of prior sexual history. Additionally, rules discussed in R v. Osolin ensure that crossexamination of a complainant victim comports with the complainant’s rights under s. 7 and s. 15
of the Charter. As will be discussed fully below, the use of occurrence reports concerning
matters outside the incident under prosecution has a firm tradition in criminal cases. In order to
shield occurrence reports as a guard against potential abusive cross-examination, this Court must
accept an implicit assumption in the Appellant`s argument, which is that complainants and
witnesses in sexual assault prosecutions are more credible and reliable than other types of
witnesses and the assumed harm to the complainant carries more weight and importance than the
need to investigate and test the complainant’s story.
R v. Osolin, [1993] 4 S.C.R. 595 at pp. 669-671
Costs of Inadequate Disclosure: Wrongful Convictions and Public Authorities Liability
17.
The failure to provide full disclosure has been identified as a recurring root cause of
miscarriages of justice. Stinchcombe, responded to the findings of the Marshall Inquiry:
The right to make full answer and defence is one of the pillars of criminal justice on which we
heavily depend to ensure that the innocent are not convicted. Recent events have
demonstrated that the erosion of this right due to non-disclosure was an important factor in the
conviction and incarceration of an innocent person.
Despite the lessons in Marshall, our criminal justice system continues to produce wrongful
convictions based on inadequate disclosure. The Driskell Inquiry found that breaches of the
Crown’s disclosure obligation contributed to the wrongful conviction in that case. Inquiries into
wrongful convictions often recommend that disclosure obligations become legislatively
prescribed.
R v. Stinchcombe, supra, p. 336
Royal Commission on the Donald Marshall Junior Prosecution [the Marshall Report], Vol. 1,
1989 Province of Nova Scotia, at pp. 68-79 and 238 – 244
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Manitoba. Report on the Commission of Inquiry into Certain Aspects of the Trial and Conviction
of James Driskell. Winnipeg: Department of Justice 2007 cited in Botting, G. Wrongful
Convictions in Canadian Law (Canada, Lexis Nexis 2010) at pp. 438-439
18.
The harmful effects of wrongful convictions extend beyond the individual. Wrongful
convictions also seriously erode public confidence in the administration of justice, and
undermine the legitimacy of State and judicial authority. In addition to the cost of the inquiries
themselves, the consequences of the wrongful convictions can result in significant damage
awards. Ten million dollars was awarded in the Milgaard case, and six and a half million dollars
in the Truscott case. The Court of Appeal of Manitoba held that failures in police disclosure
obligations both pre- and post-conviction may result in police negligence actions. In addition to
the high profile wrongful conviction cases, equally concerning are the “small cases” of wrongful
convictions which have resulted from inadequate disclosure.
Driskell and Dangerfield, 2008 MBCA 60, [2008] 6 W.W.R. 615 at paras. 28, 32- 33
Wrongful Convictions in Canada, supra, at pp.7-8
19.
Given the correlation between inadequate disclosure and wrongful convictions, and the
potential to undermine confidence in our institutions, the Crown obligation to provide full and
timely disclosure is not exclusively a defence issue, but an institutional one.
When full
consideration is given to the tangible and intangible costs of a system undermined by the
consequences of inadequate disclosure, many of the arguments surrounding the administrative
burden of disclosure are weakened.
Occurrence Reports Are Routinely Disclosed in Criminal Litigation
20.
Occurrence reports have long played a valuable role in criminal litigation, distinguishing
them from records which the accused is disentitled to receive i.e. irrelevant materials that distort
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the truth seeking function of the trial. Occurrence reports contain a summary of a report made to
police, including the names of complainants, and witnesses, any suspect information, and
narratives of officers’ responses and findings. Occurrence reports are stored on a centralised
computer system within each police force. The reports are easily accessible, and can be obtained
by the Crown without the requirement of a search warrant, or the consent of the complainant or
witness. It is routine for police to conduct computer checks on complainants and potential
witnesses. This task is often carried out by officers working in the criminal investigation bureau
of their department.
Given recent technological advancements, the four largest provinces in
Canada have integrated the data-bases of all local police forces within their respective provinces:
PRIME-BC (Police Records Information Management Environment); TALON (The Alberta Law
Officers Network); and CRPQ (Centre de Resignement des Policiers Du Quebec) are some
examples. At the national level, the RCMP have run C.P.I.C. since the 1970’s and also have a
database called “PROS” for all R.C.M.P. occurrences.
Various police departments have
information sharing arrangements.
David Bowman, Unrestricted Access: An Exploratory Assessment of Canada – U.S. Criminal
Intelligence and Individual Privacy 2011 Master’s Thesis Submissions p. 39 – 42
<http://summit.sfu.ca/item/11245>
Canadian Civil Liberties Association, Presumption of Guilt? The Disclosure of Non-Conviction
Records in Police Background Checks <http://ccla.org/wordpress/wpcontent/uploads/2012/09/CCLA-NCD-Report.pdf>
Sarah Lyseck, Ontario Police IT System to Allow Database Exchange
<http://www.itbusiness.ca/news/ontario-police-it-system-to-allow-database-exchange/8723>
21.
Disclosure of occurrence reports results in a better informed accused who may avoid
contested trials or agree to evidence. Disclosure of occurrence report would allow the defence to
contribute to discussions assessing the credibility and reliability of Crown witnesses in advance
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of trial to determine the reasonable prospects of conviction. The burden on the State to disclose
police occurrence reports and related materials is minimal compared to the benefits to the overall health of the justice system.
22.
Occurrence reports contain facts gathered by the police for a forensic purpose. These
reports differ qualitatively from records created by social service providers whose purpose is not
to create a factual accounting of an event, but rather to deal with emotional, psychological or
educational aspects of the individual.
R v. Mills, supra at para. 136
23.
Watt J’s comments in R v. Bottineau reflect the common experience of defence counsel:
It is common-place that prosecution witnesses may be impeached on the basis of extrinsic
misconduct....It is fundamental that what must be disclosed is not co-extensive with or limited to
evidence, much less admissible evidence.
In my experience, occurrence reports relating to extrinsic misconduct by persons who are or may
be summoned as witnesses in unrelated criminal prosecutions are routinely disclosed to
defending counsel. Reports of incidents that tend to show, for example, a deceased person’s
disposition for violence, or the similar disposition of another who is said by the defence to be the
real perpetrator...are not treated, nor should they be, as third party records.
R. v. Bottineau, [2005] O.J. No. 4034 (S.C.J.) paras 39- 43, 49- 55, 62-70
24.
Although defence counsel in this case sought the occurrence reports after he heard the
documentary, the common practice for defence counsel is to request all occurrence reports, and
related documents by way of written pre-trial disclosure requests. Typically these documents are
requested in the following manner:
…copies of any or all CPIC entries, occurrence reports, incident reports, street checks,
computerized or otherwise, in which [X] appears as a suspect, complainant, or witness.
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By and large, an accused has access to occurrence reports upon request pursuant to
Stinchcombe/first party disclosure principles with some minor exceptions.
R v. Whitebear, [2012] A.J. No. 1271 (Alta. Q.B.) at para 8
R v. Barnes, [2004] O.J. No. 5572 (Ont.C.J.) at para. 1
R v. Bottineau, [2005] O.J. No. 4034 (Ont.S.C.J.)
R v. Valentine, [2008] O.J. No. 4970 (Ont.C.J.) at paras 23-27
R v. Furlotte, [2012] O.J No. 2692 (Ont.C.J.)
R v. Oliver, [2013] S.J. No. 298
R v. T.S., [2012] ONCA 289, at paras 99, 100-106, 113, 136
R v. S.(L.), [2000] O.J. No. 3991 (Ont.S.C.J.) at paras. 11-21
R v. Hammond, [2002] O.J. No. 1596 (Ont.C.J.) at paras. 13-16, 26
R v. Hundle, [2002] ABQB 618 (Alta. Q.B.) at para. 42
R v. Fudge, [1999] O.J. No. 3121(Ont.S.C.J.)
25.
Occurrence reports capture incidents where the witness/complainant may have been
an accused person, a witness or a past complainant/victim:
i)
occurrence reports for convictions on a criminal record: these reports provide the
underlying facts that support entries on the criminal record;
ii)
occurrence reports for charges that do not result in a conviction or outstanding
charges: these reports may contain information of when charges are withdrawn in exchange
for testimony favourable to the prosecution and can have significant application to cases
involving a joint enterprise crime/criminal conspiracy; and
iii)
occurrence reports relating to the witness as a past victim or complainant: these
reports can be used to test credibility, especially if the victim and the accused share a history
or where there is a pattern of fabrication This type of occurrence is relevant to T.R.’s case
Occurrence Reports and Cross-Examination on Criminal Records
26.
Cross-examination of witnesses concerning the contents of occurrence reports related
to criminal convictions is well established, and flows from a long tradition of scrutiny of
evidence from witnesses with convictions who were initially viewed as incompetent to give
evidence. As Pratt J. noted in Morris v. The Queen:
Cross-examination as to prior convictions is not directly aimed at establishing the falsity of
the witness's evidence; it is rather designed to lay down a factual basis - prior convictions
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from which the inference may subsequently be drawn that the witness's credibility is suspect
and that his evidence ought not to be believed because of his misconduct in circumstances
totally unrelated to those of the case in which he is giving evidence.
Morris v. The Queen, [1979] 1 S.C.R. 405 at 432
R v. Corbett, [1988] 1 S.C.R. 670 at 715-718
Occurrence Reports and Cross-Examination on Outstanding Charges
27.
The Martin Committee Report recommended the disclosure of information regarding
outstanding charges or convictions of potential witnesses, and cited instances when such
information might be relevant: the witness’ motivation to testify, the witness' violent character
when there is a defence of self-defence, or to the witness' predisposition to commit the offence.
In R v. Titus, this Court established that cross-examination of a Crown witness concerning an
outstanding indictment against that witness is proper and admissible for the purpose of showing a
possible motivation to seek favour with the prosecution.
R v. Titus, [1983] 1 S.C.R. 259 at 263 - 264
Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and
Resolution Discussions [the Martin Report], Queen’s Printer for Ontario, 1993
28.
In addition to testing a witness’ motive to testify, R v. Gonzague confirmed the propriety
of cross-examination of underlying facts of outstanding charges to test credibility:
The second ground of complaint was that the trial judge erred in refusing to permit counsel for
the defence to cross-examine Charbonneau with respect to I5 pending charges of fraud. In
fairness to the trial judge, it must be said that defence counsel at the trial (who was not Mr.
Girones) failed to make clear the basis upon which he sought to cross-examine Charbonneau on
those charges. Clearly, the fact that a person is charged with an offence cannot degrade his
character or impair his credibility, but an ordinary witness unlike an accused may be crossexamined with respect to misconduct on unrelated matters which has not resulted in a conviction:
see R. v. Davison, DeRosie and McArthur at 443-44. Consequently, counsel was entitled to
cross-examine the witness, Charbonneau, on the facts underlying the 15 charges of fraud in order
to impeach his credibility.
R v. Gonzague, [1983] O.J. No. 53 (Ont.C.A.) at paras 19-20 [citations omitted]
R v. Titus, supra, at 263
R v. Miller, [1998] O.J. No. 5356 (Ont.C.A.)
R v. Cullen, [1989] O.J. No. 2055 (Ont.C.A.)
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Occurrence Reports where the Complainant is a Past Complainant/Victim
29.
While the use occurrences pertaining to past victimization raises emotive concerns
against use at trial, the Respondent submits that in principle the material ought to be disclosed.
The concerns on use are addressed by the protective mechanisms built into the trial process. The
disclosure of these reports is valid, and requests for these reports are not based on discriminatory
beliefs about complainants. In addition, use of these materials can be vital in addressing guilt or
innocence as demonstrated in R. v. T.S. which involved a sexual assault prosecution where the
Appellant was convicted of sexually assaulting his wife. His trial proceeded without the
disclosure of occurrence reports that contained information that the Complainant had previously
made complaints to police to bolster her position in future child custody proceedings. The Court
of Appeal found that non-disclosure of the occurrence reports, and notes of these previous
occurrences, impaired the Appellant’s full answer and defence rights. The appellate Crown
conceded that the disclosure of the materials was governed by Stinchcombe, and disclosed the
materials post-conviction.
R v. T.S., [2012] ONCA 289, at paras. 100-106, 136
30.
Occurrence reports where the complainant was a past victim may be relevant to
showing a pattern of fabrication. Although the use of the reports may be constrained by the
collateral facts rule elsewhere, in this case, the past sexual assault of T.R. is not a collateral
issue given that she seemed to conflate at least two occurrences of sexual assault in her
evidence. At this stage, and without the disclosure of the reports, the Respondent cannot give
a definitive statement on how T.R.’s reports can be used in the pre-trial and trial settings.
R v. Riley, [1992] O.J. No. 4072 (Ont. C.A.) at paras. 7 - 8
R v. B. (A.R.), [1998] O.J. No. 3648 (Ont.C.A.) aff’d 2000 S.C.J. No. 30 at paras. 15-18
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31.
The valid uses of occurrence reports, neutralizes Appellant’s arguments because
records protected by s. 278 often have little probative value and may only serve to humiliate
the complainant. The disparate treatment of sexual assault victims was addressed in Osolin:
Historically, a host of factors were deemed relevant to the credibility of complainants in
sexual assault trials that did not bear on the credibility of witnesses in any other trial and
which functioned to the prejudice of victims of sexual assault. In Seaboyer, supra, I discussed
at length the hurdles that complainants faced in sexual assault trials due to these unfounded
presumptions. They include myths that deem certain types of women "unrapable" and others,
because of their occupations or previous sexual history, unworthy of belief.
To extend the reasoning in Osolin and Mills, to the disclosure of occurrence reports, would
turn the logic of these cases and of the s. 278 regime on its ear. Should the accused be
deprived of legitimate avenues of investigation, and tools to test credibility and reliability,
merely because the prosecution involves a sexual assault? Put another way, should
complainants and witnesses in sexual assault cases have their credibility tested in a different
manner than other witnesses?
R v. Osolin, [1993] 4 S.C.R. 595 at paras. 49 - 55 [Emphasis added]
Crown Disclosure Manuals and Policies Direct Disclosure of Occurrence Reports
32.
In addition to judicial authority for disclosure and use of occurrence reports, the Crown
disclosure manuals contain provisions that direct Crown counsel to disclose materials such as
occurrence reports and related materials. The Federal Prosecution Service Deskbook suggests
that the witnesses’ criminal records, comprising of relevant information relating to any
outstanding criminal charges, and material which may be used to impeach the credibility of a
Crown witness be disclosed.
H. Archibald Kaiser, “McNeil: A Welcome Clarification and Extension of Disclosure Principles:
the Adversary System has Lingered on” (2009), 62 C.R. (6th) 36 at p. 41-42
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33.
The Ontario Ministry of the Attorney General Practice Memorandum directs Crown
counsel to disclose information including convictions, discharges, withdrawals, acquittals, stays
and other court related dispositions of Crown or defence witnesses that are relevant to credibility.
It further directs that materials such as occurrence reports and supplementary reports, including
allegations and findings be disclosed upon request, and if such materials are not disclosed, to
provide defence counsel with reasons for withholding the materials. The Practice Memorandum
suggests that the Crown should disclose all relevant items in the possession or control of the
Crown, and must “make reasonable inquires of all such agencies or departments that could
reasonably be considered to be in possession of disclosure material”.
Practice Memorandum, PM [2009] No. 1 at p. 13- 14, 16-19
R v. McNeil and Invigoration of First Party Disclosure Obligations
34.
Occurrence reports are disclosable pursuant to Stinchcombe first party principles. Prior to
McNeil, the debate concerning the appropriate rules to apply to the disclosure of investigative
materials such as occurrence reports, which is not related to the investigation of the offense in
question, had centred upon whether the records are the “fruits of the investigation”, in possession
of the Crown, or whether they were third party records and subject to the O’Connor production
regime. The issues surrounding the indivisibility of the Crown animated the cases, with the
Crown arguing against indivisibility. A complicating feature in the pre-McNeil case law arose
where the documents sought related to a police witness raising concerns over privacy in police
disciplinary records. R v. McNeil resolved much of the debate. The McNeil Court rejected the
concept of indivisibility, but held that the police have a duty to participate in the disclosure
process, and must furnish the Crown with all materials pertaining to the investigation of the
accused, as well as information for which there exists a reasonable possibility it may assist the
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accused to exercise the right to make full answer and defence. Furthermore, the Crown is not a
passive recipient of relevant information. The Crown has a duty to inquire about and obtain any
possibly relevant evidence pertaining to the credibility and reliability of the witnesses in a case.
R v. McNeil, supra, paras. 48-60
R. v. Bottineau, supra, at paras 62-70
R v. Keta, supra, at paras. 6 - 7
35.
McNeil confirmed the Stinchcombe principle that relevant information in the first party
context includes not only information related to matters that the Crown intends to adduce against
the accused, but also information where there is a reasonable possibility may assist the accused
in making full answer and defence. McNeil also confirmed that the Stinchcombe regime extends
to materials that is in the Crown`s possession or is within the Crown’s control. As Charron J.
stated “the law does not impose an obligation on the Crown to disclose materials which it does
not have or cannot obtain”. However, the police have a role in the disclosure process which
includes “disclosing to the Crown all relevant materials in their possession”. This means that
occurrence reports are disclosable pursuant to Stinchcombe. The Practice Memorandum
acknowledges this obligation, but stipulates that the obligation is triggered upon request.
McNeil, supra, at paras 17, 23 - 25
D. Paciocco,“Stinchcombe on Steroids:the Surprising Legacy of McNeil” (2009), 62 C.R.(6th) 26
36.
The Crown can easily obtain occurrence reports. The police have ready access to the
reports through integrated computer systems. Although McNeil referred to R v. Gingras, as a
caution against imposing overly onerous Crown disclosure obligations, the material sought in
Gingras was the complete penitentiary files of a prisoner held by a federal civil servant in
another province. Police occurrence reports concerning matters outside of the incident under
prosecution differ in scope and proximity to the offense in question from the material sought in
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Gingras. Ultimately, McNeil drew on R v. Arsenault, which involved disclosure of investigative
material compiled by Health and Community Services, to suggest that a Crown with notice of
relevant materials, has a d uty to inquire and disclose the materials if it is so able. While Gingras
may address the outer limits of the disclosure obligation, the principle in Arsenault drives the
main holding of McNeil which is that the police and the Crown have a shared obligation to
obtain and disclose material that may assist the defence in making out full answer and defence.
R v. Arsenault (1994), 153 N.B.R. (2d) 81 (C.A.)
R v. Gingras (1992), 120 A.R. 300 (C.A.)
37.
The defence here requested the occurrence reports within the context of the innovations
in McNeil with its focus on the primacy of disclosure in the fair adjudication of criminal trials
and the enhanced access to records relating to the witnesses in a prosecution. Occurrence reports
advance full answer and defence, particularly in cases that depend on credibility determinations.
With some minor exceptions, disclosure of the reports had a firm footing within the Stinchcombe
disclosure regime prior to McNeil. McNeil bolsters the first party nature of the materials. Simply
because this case involves sexual allegations does not alter the applicable disclosure principles.
The mere fact that a prosecution involves a listed offense does not make a request for records
subject to the s. 278 regime. The question is whether occurrence reports and related materials
are “records” caught within s. 278.1.
B.
THE NONAPPLICABILITY OF THE SECTION 278/MILLS REGIME
What Constitutes a “Record”
38.
Section 278.1 provides that a record must contain ‘personal information’ which bears a
“reasonable expectation of privacy” for which there is no waiver, unless the record is made by a
person responsible for the investigation or prosecution of the offence:
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s. 278.1 For the purposes of sections 278.2 to 278.9, "record" means any form of record
that contains personal information for which there is a reasonable expectation of privacy
and includes, without limiting the generality of the foregoing, medical, psychiatric,
therapeutic, counselling, education, employment, child welfare, adoption and social
services records, personal journals and diaries, and records containing personal
information the production or disclosure of which is protected by any other Act of
Parliament or a provincial legislature, but does not include records made by persons
responsible for the investigation or prosecution of the offence.
Section 278.1 of Criminal Code
The s. 278/ Mills Regime
39.
Sections 278.1-278.91 were ushered into the Code under Bill C-46.
The Bill
responded to the O’Connor decision which dealt with the manner in which the accused in a
sexual assault case could obtain production of the complainant’s therapeutic records. In Bill
C-46, Parliament attempted to craft a production regime that balanced an accused’s right to
full answer and defence with a complainant’s right to privacy and equality. Parliament
“sought to recognize the prevalence of sexual violence against women and children... and to
reconcile fairness to complainants with the rights of the accused”. The s. 278 production
regime applies even where the record is in the hands of the Crown, unless there is waiver. The
Mills regime therefore creates an exception to the Stinchcombe/McNeil disclosure rules.
Significantly, the regime applies equally to qualifying records of complainants and witnesses.
If the Appellant’s argument is accepted then the occurrence reports of witnesses, including
police witnesses would be improperly shielded.
40.
R v. Mills considered a constitutional challenge to Bill -46. The Mills Court upheld its
constitutionality, and held that full answer and defence rights of the accused must be
interpreted in light of the complainant’s constitutional rights to privacy and equality.
Furthermore, full answer and defence is not engaged where the accused seeks information
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that will only serve to distort the truth seeking function of the trial. In such a situation, privacy
and equality rights are paramount. However, where full answer and defence is directly
implicated in the record, privacy must yield to ensure that the innocent are not convicted. The
Mills decision held that because the production rules extended only to records which contain
personal information for which there is a reasonable expectation of privacy, the legislation
struck the appropriate constitutional balance. If a record does not contain information which
attracts a reasonable expectation of privacy, then it is not subject to the production rules. In R
v. Shearing, Binnie J. underscored that Mills affirmed the requirement of a fair trial to avoid
wrongful convictions.
R v. Mills, supra, at paras. 59, 78, 94
R v. McNeil, supra, at para. 30
R v. Shearing, supra at para. 132
41.
Thorburn J. included occurrence reports within the definition of “records” because 1)
“the police occurrence reports contain recorded information about the Complainant, including
her knowledge or involvement in criminal activity”; 2) that this information is protected by
privacy legislation; and 3) that all police records except those relating to the offense in question
are excluded by the language of the section. Thorburn J. relied on a passage in R v. McNeil:
The case of McNeil, relied on by the Applicant does not involve a case of sexual assault
but rather a drug transaction. Moreover, the court in McNeil held at para. 21 that:
... Absent an express waiver from the complainant or witness to whom the record
relates, production of all records falling within the Mills regime, whether in the
possession or control of a third person or of the prosecutor in the proceedings, can
only be made on application to the court and in accordance with the balancing test
set out in the Code provisions. This statutory regime therefore constitutes an
exception to the common law regime of Crown disclosure under Stinchcombe...It
is nonetheless constitutional.
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In my view, the wording of section 278 is clear. The Application must be brought
pursuant to section 278.2 of Criminal Code, as in this case, there is a reasonable
expectation of privacy and the only exception is for records pertaining to the offence in
question.
Respectfully, Thorburn J’s decision is incorrect. First, as noted by MacFarland J.A., Thorburn
J.’s interpretation suggests that “any record made by the investigating police service that are not
made in relation to the offence are covered under s. 278, even if they are accessed by the
investigating officer and made part of the fruits of the investigation”. Second, the definition of
“personal information” in privacy legislation cannot be properly imported into the Code. Third,
the section exempts records made by persons responsible for the investigation. Occurrence
reports are such records.
Judgment of the Court of Appeal for Ontario, Appellant’s Record Tab 9 at para. 22
Judgment of the Superior Court of Justice, Appellant’s Record Tab 2 at paras 22-23
42.
In finding that occurrence reports are protected documents under the s. 278 regime,
Thorburn J. was in line with other trial level decisions. MacFarland J.A. however was correct
in ruling against the weight of these decisions. Mills regime documents necessarily contain a
sufficient privacy interest that could act to limit the accused full answer and defence rights.
Based on that balancing, occurrence reports do not qualify as Mills regime records.
R v. Nepinak, 2010 BCSC 1659
R v. R.L., [2007] O.J. No. 4095 (Ont. S.C.J)
R v. McAdam, [2008] O.J. No. 1740 (Ont. S.C.J.).
43.
The decision of the Court of Appeal makes sense. Occurrence reports are forensic
documents created for public use. Police and complainants do not enjoy a confidential
relationship. There is no subjective expectation that the police will keep the information
private. Indeed, when a complainant reports an incident to police, there is an expectation that
there will be an investigation and prosecution, and that the contents of the report will be
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released within the framework of the criminal justice system. The complainant’s “knowledge
or involvement in criminal activity”, although personal, does not attract a constitutionally
protected right to privacy that acts as a valid limit to full answer and defence rights.
Certainly, nothing stops the police in accessing their stored occurrence reports in the
investigation of crime. It is safe to say that any investigator would consider stored occurrence
reports as an indispensible tool in crime investigation.
If the Appellant’s arguments are
accepted, then privacy can yield to law enforcement investigations, but cannot yield to the
accused’s constitutional right to full answer and defence.
Definition of Personal Information and Privacy Legislation
44.
The Code does not define “personal information”. Thorburn J., like many other trial
level courts, relied on the definition of “personal information” contained in privacy legislation.
The Respondent submits that resort to the definition of “personal information” contained in
privacy legislation is inappropriate given the breadth of the definition, and the purpose of privacy
legislation. The meaning of personal information ought to be interpreted in light of the purpose
of Bill C-46 which focuses on core privacy and equality concerns of women and children facing
sexual violence. The definition for personal information in privacy legislation has the reach to
cover virtually every document in a criminal investigation. Professor Renke wrote that privacy
legislation would not likely be judged to be in pari materia with the Code, although legislation is
supposed to be read harmoniously. Further, given the breadth of the term personal information
in privacy legislation, it is highly unlikely that the accused would seek any information relating
to a complainant or a witness that would not be classified as personal information.
W. Renke, “Applications for Third-Party Records: The Relationship of the O’Connor
Procedures” (2002), 40 Alta. L. Rev. 593 at paras. 96-100
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45.
Another difference that must be considered when interpreting the relationship between
privacy legislation and the accused’s rights in a criminal prosecution, is that applicants seeking
documents under privacy legislation do not have vital liberty interests at stake. In addition,
provisions in privacy legislation protect an accused’s fair trial rights. Professor Kaiser
commented thusly in speaking of the McNeil decision:
The judgment does not elaborate on the intersection of privacy legislation and law
enforcement files, but it should be recalled that these statutes relate to a milieu where
applicants are broadly defined and they usually do not have the special interest of the
criminal accused. Privacy legislation imposes a presumptive right of access to records,
with mainly discretionary entitlements to refuse requests relating to law enforcement.
Ironically, one of the reasons which can be invoked to refuse access relates to
disclosure which could “[D]eprive a person of a right to a fair trial or impartial
adjudications.” Given that the overriding purpose of the production applications is to
protect trial fairness and keeping in mind the similar policy emphasis on this interest in
the privacy and access to information statutes, the policy of privacy legislation
sustains the production and disclosure to an accused of criminal investigation files.
H. Archibald Kaiser “McNeil: A Welcome Clarification and Extension of Disclosure Principles
2009” 62 C.R. (6th) 36, at p. 38
46.
Privacy legislation permits disclosure between law enforcement agencies and also
permits disclosure for the purpose for which the information was obtained or compiled, or for a
consistent purpose. The reasonableness of a witness’ or complainant’s expectation of privacy
must be informed by the entire legislative scheme and not just by the broad definition of
“personal information”.
Freedom of Information and Protection of Privacy Act R.S.O. 1990, c. F.31 ss 2, 14, 22, 42
Municipal Freedom of Information and Privacy Act R.S.O. 1990, c. M. 32 ss. 2, 32, 8, 32
47.
Police do not allow an individual free reign over occurrence reports relating to
themselves. An individual seeking access to such occurrence reports must make a successful
application under access legislation. In addition, individuals seeking to vary or change the
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contents of these occurrence reports will meet a formidable challenge as seen in the recent
judgment in J.N. v. Durham (Regional Municipality) Police Service. While control of the record
is not dispositive of the question of the reasonable expectation of privacy, it is a factor to
consider, as will be discussed below.
J.N. v. Durham (Regional Municipality) Police Service, [2012] O.J. No. 2809 (Ont.C.A.) at
paras. 2-8, 13
Definition of a “Reasonable Expectation of Privacy”
48.
The central question in the determination of whether a record is captured by the s. 278
regime is whether there is a reasonable expectation of privacy in the record. MacFarland J.A.
was correct in holding that although the information contained in an occurrence report is
“personal”, it does not attract a reasonable expectation of privacy.
This Court has established
that a reasonable expectation of privacy is a normative rather than a descriptive standard.
Determining whether a reasonable expectation of privacy exists is a context specific inquiry with
an emphasis on (1) the existence of a subjective expectation of privacy; and (2) the objective
reasonableness of the expectation.
R v. Shearing, supra, at para. 105
R v. Tessling, [2004] 3 S.C.R. 432 at para. 42
R v. Gomboc, [2010] 3 S.C.R. 211
49.
The Mills Court relied on Plant and O’Connor to hold that the complainant’s right to
privacy in a record is located in s. 8 of the Charter. Plant, O’Connor and Mills identified
privacy as a concept pertaining to core aspects of personal identity, relating to lifestyle choices,
intimate relations or political or religious opinions. This Court further held that privacy rights
are most directly at stake where the confidential information contained in a record concerns
aspects of one's individual identity, or where the maintenance of confidentiality is crucial to a
therapeutic or other trust-like relationship. R v. Mills relied on the description of privacy
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contained in R v Plant, and other cases involving searches conducted by the State, and held that a
reasonable search and seizure will be one that accommodates both the accused’s ability to make
full answer and defence and the complainant’s privacy right.
R v. Mills, supra, at paras 88-89
50.
In Tessling, Binnie J. wrote that Sopinka J’s illustration in Plant of the contents of
privacy dealing with “intimate details of the lifestyle and personal choices” was not meant to be
exhaustive. The Appellant relies on this passage. However, Binnie J. went on to state that:
“[n]evertheless Plant clearly establishes that not all information an individual may wish to keep
confidential necessarily enjoys s. 8 protection”.
Taking direction from R v. Patrick, the
Respondent submits that while in certain contexts, private information should remain
confidential to the person to whom it was intended to be divulged, and for the purpose for which
it was divulged, this proposition does not hold for the complainant/police relationship. Not only
does the police officer not undertake to keep the information confidential, but any expectation by
the complainant of such an undertaking would be unreasonable.
R v. Tessling, supra, at para. 26
R v. Patrick, [2009] 1 S.C.R. 579 at para. 67
51.
This Court has long recognised that a person’s claim to reasonable expectation of privacy
will likely founder in circumstances where the person knowingly exposes information to the
public, or to a section of the public, or abandons it in a public place. Not only are T.R’s. and
L.I.’s prior occurrences matters divulged to a public office holder engaged in a public
prosecution, but T.R. also aired details of her sexual assault (s) in a public radio broadcast.
R v. Tessling, supra, at para 40
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52.
The Court of Appeal’s contextual approach to the reasonable expectation of privacy
analysis was correct.
The Appellant’s complaint that the Court of Appeal restricted the
definition of reasonable expectation of privacy to therapeutic relationships is unfounded when
the contextual factors relied upon by the Court of Appeal are considered:
i)
Subjective expectations of the victim was considered as it relates to the nature of
the relationship: “when the victim of a sexual assault speaks to police about the
attack, he or she is not doing so in the context of a trust-like, confidential, or
therapeutic relationship” (para. 34 Quesnelle C.A.);
ii)
Subjective expectations as it relates to the purpose of the disclosure by a
complainant to the police was considered: “expressly sharing information with
the state for the purpose of having the assault investigated and addressed.” (para
35 Quesnelle C.A.);
Subjective and objective view of how the personal information would be used was
considered: “the information will, in the usual course, come out in a public trial.”
(para. 34 Quesnelle C.A.); and
iii)
iv)
53.
Statutory context was considered in depth including the language of the preamble
(paras 28, 29, 32 Quesnelle C.A.).
Furthermore, the Appellant’s critique focuses on only one part of a sentence in the
reasons to suggest that the Court of Appeal restricted the application of the s. 278 regime to
therapeutic relationships. This ignores MacFarland J.A.’s careful consideration of the “type” of
record caught within the s. 278 regime. MacFarland J.A.’s comments in assessing the type of
record contemplated in the legislation is in keeping with the Mills Court’s repeated connection of
“private records” to those records that have little value in the truth finding function of the trial:
The important thing to note about the scheme of the Act and intention of Parliament as
evidenced in the preamble to Bill C-46 and the majority's discussion in Mills is the nature of
the privacy interest being discussed. The "personal information" and "expectation of privacy"
in s. 278.1 is framed in reference to intimate information about one's identity and lifestyle, of
the type disclosed in the context of a trust-like, confidential, or therapeutic relationship. It is,
in the words of Sopinka J., the type of information an individual would seek to withhold from
the state.
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This statement reflects that police-made occurrence reports and investigative records are
different in kind from the type of records contemplated by s. 278.1 or at issue in Mills. The
types of records specifically referenced in s. 278.1 are medical, psychiatric, therapeutic,
counselling, education, employment, child welfare, adoption and social service records,
personal journals and diaries and records containing personal information which is protected
by legislation.
In Mills, the court was considering therapeutic records and notes that were in the possession of
a counselling organization, and records held by a psychiatrist and by a child and adolescent
services organization - "private records," as the court referred to them throughout its judgment.
For the reasons I have explained above, I do not accept that occurrence reports created by
police implicate the types of privacy interests envisioned in s. 278.1 or in Mills.
Judgment of the Court of Appeal for Ontario, Appellant’s Record Tab 9 at paras 32-41
R v. Mills, supra, at paras 90-92, 99, 125
Balancing of Interests Full and Answer and Defence and Privacy and Equality
54.
Bill C-46 passed constitutional scrutiny because Parliament limited the application of the
regime to documents which attract a reasonable expectation of privacy. The importance of the
limited reach of s. 278.1 cannot be overstated. To allow extension of the production regime to
non-private documents would upset the constitutional balance:
The response to these claims is to remember that the legislation applies only to records "for
which there is a reasonable expectation of privacy" Only documents that truly raise a legally
recognized privacy interest are caught and protected. The Bill is therefore carefully tailored to
reflect the problem Parliament was addressing -- how to preserve an accused's access to private
records that may be relevant to an issue on trial while protecting, to the greatest extent possible,
the privacy rights of the subjects of such records, including both complainants and witnesses. By
limiting its coverage to records in which there is a reasonable expectation of privacy, the Bill is
consistent with the definition of s. 8 privacy rights discussed above. Moreover, as will be
discussed below, the mere fact that records are within the ambit of Bill C-46 will not, in itself,
prevent the accused from obtaining access to them. Applied in this way, ss. 278.1 and 278.2(1)
will not catch more records than they should, and are not overly broad.
R v. Mills, supra, paras 61-66, 80,99; R v. R. C. [2002] O.J. No. 865 (Ont.C.A.) paras. 43 - 46
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55.
A claim of a reasonable expectation of privacy in police occurrence reports that could
serve to limit full answer and defence rights, does not comport with the purposes of the s. 278
regime. Bill C-46 responded, in part, to a defence strategy of “whacking” the complainant. The
concern was that when a complainant in a sexual assault case came forward, the defence would
seek documents that delved deep into the complainant’s private life in order to discredit the
complainant, or make the process of complaining a difficult and emotional one. Permeating the
requests for documents were myths about sexual assault complainants:
The notion that consultation with a psychiatrist is, by itself, an indication of untrustworthiness
is a more recent, but equally invidious, example of such a myth. The purpose of s. 278.3(4) is
to prevent these and other myths from forming the entire basis of an otherwise
unsubstantiated order for production of private records.
The legislation and the Mills decision underscores the readiness of Parliament, and the
Judiciary, to ensure protections against unwarranted invasions into personal records, and to
address a concern that the justice system not re-victimize sexual assault victims, while
maintaining regard to full answer and defence rights.
R v. Mills, supra, para. 119
56.
Defence requests for occurrence reports do not constitute invasive unwarranted
scrutiny into the personal sphere of the complainant. There is no attempt to humiliate
complainants by delving into therapeutic, medical, educational, or otherwise private
documents that attract a reasonable expectation of privacy. No confidential relationship is
undermined. Occurrence reports which launch a public prosecution, differ from information
about “lifestyle, intimate relations or religious opinions” contemplated in R v. Mills.
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57.
MacFarland J.A.’s holding on privacy comports with R v. McNeil where it held that
privacy determinations in investigative information should not be manipulated to obtain
convictions, and withheld where it can assist the defence:
As Professor Paciocco aptly puts it:
... it would be perverse to hold that investigative information is not private enough to
impose any constraints on the ability of the police to gather it and the Crown to use it to
seek the conviction of the target of that investigation, yet that same information is
protected by privacy interests when it contains relevant information that would help
someone defend himself.
R v. McNeil, supra, at para. 42 [Citations Omitted]
Residual Privacy Not the Same as a Reasonable Expectation of Privacy
58.
The Appellant argues that the Court of Appeal erred because it found no privacy interests
in police occurrence reports. However, the Court did not negate the existence of privacy in the
reports. The Court of Appeal was tasked with interpreting the definition of a “reasonable
expectation of privacy” within the section. Its analysis was directed at defining the term:
...I do not accept that occurrence reports created by police implicate the types of privacy interests
envisioned in s. 278.1 or in Mills.
Judgment of the Court of Appeal for Ontario, Appellant’s Record Tab 9 at paras. 38-41
59.
The Appellant ignores the distinction between “residual privacy”, and the term
“reasonable expectation of privacy”. The distinction was clearly made in R v. McNeil:
[a]s this Court confirmed in Mills, the Crown obligation under Stinchcombe to disclose fruits of
the investigation does not signify that no residual privacy interest can exist in the contents of the
Crown’s file.
There is certainly residual privacy in occurrence reports. Merely because they are disclosed does
not mean that there is no privacy interest in the documents. Disclosure or production means that
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privacy interests yield to the right to make full answer and defence. Residual privacy remains
and can be protected by redactions and conditions on use.
R v. McNeil, supra, at para 19
Exemption of Records Made by Persons Responsible for the Investigation
60.
MacFarland J.A. wrote that records that are made by persons responsible for the
investigation or the prosecution of the offence are exempted from the application of the section.
MacFarland J.A. correctly held that there is no language to suggest that Parliament intended to
limit the exclusion to only those records prepared in relation to the specific offense in issue.
The Court of Appeal’s reasons in this regard is supported both by the nature of the privacy
interest contemplated in Mills, and the preambular language in Bill C-46:
Bill C-46 begins by defining records to which it applies: “any form of record that contains
personal information for which there is a reasonable expectation of privacy”, excluding
investigatory or prosecutorial records.
Judgment of the Court of Appeal for Ontario, Appellant’s Record Tab 9 at paras. 36-37.
R v. Mills, supra, para 50.
61.
At the Court of Appeal, the Crown advanced an argument that suggested that reference to
the term “records made by the persons on the investigation and prosecution of the offence”
should not be restricted to just the investigation of the offense in question, but rather that the
definition extends to capture records made by the organization (investigating police force/Crown
agency). The Crown position was based in part on the interpretation of the French version of the
section. According to the Crown at the Court of Appeal, s. 2 of the Criminal Code defines the
term “person” to include Her Majesty and an organization. The wording of the French version of
the provision reads as follows:
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278.1 Pour l’application des articles 278.2 à 278.9, « dossier » s’entend de toute forme de
document contenant des renseignements personnels pour lesquels il existe une attente
raisonnable en matière de protection de la vie privée, notamment... N’est pas visé par la présente
définition le dossier qui est produit par un responsable de l’enquête ou de la poursuite
relativement à l’infraction qui fait l’objet de la procédure.
According to the Crown at the Court of Appeal, the use of the third person expression “un” or
“one” is consistent with the use of the term “person” in the English version of the section. It is
capable of application to an organisation. The provision potentially captures the following
meaning: records made by the organization (investigating police force/Crown agency)
responsible for the investigation of the prosecuting offence.
Criminal Code of Canada, R.S.C. 1985 c. C-46 s. 2
Respondent’s Record Tab 2 pp. 8-9 Excerpt of the Crown Factum at the Court of Appeal
62.
The Appellant before this Court suggests another much more narrow interpretation of the
French text. The broader interpretation in the French text offered to the Court of Appeal is
consistent with the plain reading of the English version of the text which is that the legislation
exempts records made by the police. In order to read the English and French text harmoniously,
the broader interpretation of the French text should be adopted.
Statutory Privilege
63.
The Respondent submits that the term “personal information for which there is a
reasonable expectation of privacy” is distinct from “records containing personal information
the production or disclosure of which is protected by any Act of Parliament or provincial
legislature.” The latter term relates to statutory privilege claims such as those contained in law
society, child welfare, and education legislation, which are prone to constitutional division of
powers arguments in favour of disclosure in the criminal setting. Privacy legislation however
differs from legislation that contains privilege clauses, in that privacy legislation provides a
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means to disseminate information in the appropriate circumstances. However, information
protected by statutory privilege may yield to full answer and defence in correct circumstances.
R v. Dunbar [2003] B.C.J. No. 2767 (B.C.C.A.) at paras. 45-60
R v. Keukens [1995] O.J. No. 1223 (Ont. Crt. Gen. Div.) at paras. 34-39
Operation of s. 278.3(4) Would Preclude Access to the Material Sought Here
64.
As a practical matter, s. 278.3(4) precludes successful applications for occurrence reports.
Section 278.3 (4) provides a list of assertions which on their own, cannot establish that the
record is likely relevant to an issue at trial, or to the competence of a witness to testify. Section
278.3(4)(e) precludes production of a record based on the mere assertion that the record may
relate to the credibility of the complainant. Section 278.4 (4) (d) precludes production on the
mere assertion that the record may disclose a prior inconsistent statement. In practical terms,
therefore, an accused in a sexual assault prosecution will not be able to acquire the occurrence
reports, because these reports often bear on nothing other than credibility, although they do play
other roles in the pre-trial context. Case specific evidence would be hard to locate. This effective
barrier to production suggests that occurrence reports and other police investigative files were
never intended to be caught by the Mills regime. In addition, a number of the factors in s.
278.3(4) have little application to investigative files, which raises the question of whether the
provisions were intended to apply to occurrence reports and other police investigative files.
R v. Batte (2000), 145 C.C.C. 449 (Ont.C.A.) paras 73 – 76; R v. Mills, supra, para. 119, 380
Notification and Section 278.2 (3)
65.
The trial Crown provided little detail on the scope of T.R.’s and L.I.’s occurrence reports.
Even in the appellate setting, where a request for notification was again made, no response was
received. Trial counsel was very clear that he based his request on the minimal notification that
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he had received. No notification was provided to the defence on occurrences with respect to L.I.
and the Crown only referred to the occurrences outlined in the T.R. documentary. The lack of
information does not accord with s. 278.2(3), and the comments in Mills on the issue of
notification: where the Court stated that “when notifying an accused, the Crown should ensure
that information as to date and context are provided so that the documents can be sufficiently
identified”. Notification is meant to “help furnish the accused a basis for arguing that the
documents may be relevant to the defence under s. 278.5”. Given the lack of notification,
defence counsel cannot be faulted for not knowing what to ask for, and not being in a position to
lay out an argument for likely relevance.
R v. Mills, supra, at para. 115
R v. N. (W.P.), [2000] N.W.T.J. No. 15
66.
The s. 278 regime does not create a class of witnesses who are exempt from the regular
rules of criminal procedure. The suggestion that sexual assault victims may be disinclined to
report sexual assaults if they knew that occurrence reports may be disclosed must be considered
in context. The s. 278 regime targets specific records. While there is social value in the reporting
sexual crimes, the value cannot be fostered by extending the definition of record beyond that
contemplated by Parliament, especially if the extension would undermine the search for truth in
the judicial process.
C.
OCCURRENCE REPORTS FOR UNRELATED MATTERS
67.
The Appellant submits that if the Court of Appeal is correct in its interpretation of
“record”, then the five occurrence reports viewed by Leaver should be disclosed pursuant to
Stinchcombe. However, the Appellant suggests that other occurrence reports should be subject
to a third party records application.
The Appellant makes this submission in the face of the
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reality that by far, the prevailing practice in criminal ligation is to disclose occurrence reports by
way of the Stinchcombe/first party regime.
68. The Appellant ignores the McNeil decision, and attempts to fall back on the construct of
“fruits of the investigation”, to push these documents into a third party records regime. R v.
McNeil has countered much of the Appellant’s arguments. The McNeil Court held that the
Crown has a duty to inquire about and obtain any possibly relevant evidence pertaining to the
credibility and reliability of the witnesses in a case, and the police have an obligation to assist
in the process.
R. v. Bottineau, supra, at paras 62-70
R v. McNeil, supra, at paras 48-60
69.
This case turned on credibility. Occurrence reports, information of withdrawn
charges, police contact cards and so forth, contain evidence that pertains to the credibility and
reliability of the evidence of witnesses. The Court in McNeil, held that information that
pertains to the credibility and/or reliability of witnesses are first party records, and disclosable
under Stinchcombe. As noted in McNeil, records will be first party records either “if they are
related to the investigation, or …could reasonably impact on the case against the accused”:
... Crown counsel who is put on notice of the existence of relevant information cannot
simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not
be able to fully assess the merits of the case and fulfill its duty as an officer of the court
without inquiring further and obtaining the information if it is reasonably feasible...
The same duty to inquire applies when the Crown is informed of potentially relevant
evidence pertaining to the credibility or reliability of the witnesses in a case.
McNeil, supra, at paras 49-50
70.
The cases of R v. Thompson, and R v. Black do not provide good support for the
Appellant’s argument that access to occurrence reports is governed by the O’Connor regime. In
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R v. Thompson police investigative files of a third party were sought. The Appellant appealed his
conviction for attempted murder on the basis that the Judge erred in dismissing his application
for records of a third party suspect. The third party suspect was not a witness and had died prior
to the trial. The Appellant in R v. Thompson proceeded with an O’Connor application, and did
not advance an argument that the appropriate means for accessing police investigative files, was
by way of a Stinchcombe/McNeil application. The Court of Appeal agreed with the Appellant.
However, the case involved the sufficiency of the evidentiary record to establish a third party
connection to the crime, and turned on the lack basic relevance. R v. Grandinetti, upon which the
Court of Appeal in R v. Thompson relied, outlined the special rules that apply in the introduction
of evidence of a third party suspect. These rules do not apply in the request for disclosure of
occurrence reports.
R v. Grandinetti, [2005] 1 S.C.R. 27 at para. 27
R v. Thompson, [2009] O.J. No. 1109 (Ont.CA) at para. 11
71.
In R v. Black, the Court of Appeal for Alberta held that calibration logs of the approved
screening device are third party records. In arriving at its decision the Court made a basic finding
that the logs were not relevant to the charges that Black faced. The Court then drastically
misinterpreted R v. McNeil. The Court limited the application of McNeil to police disciplinary
records. The Court also incorrectly interpreted McNeil to mean that only materials that relate to
convictions and not allegations are relevant to the credibility and reliability of witnesses. This
distinction runs afoul of the holdings in R v. Titus and R v. Gonzague. The R v. Black Court
noted that:
...the Supreme Court likened those types of records to records relating to convictions for perjury
for Crown witnesses. Only records of misconduct that are obviously relevant form a part of first
party disclosure. ...The police are required to disclose the investigative file as first party
Stinchcombe disclosure and other files or records in the hands of the police are subject to
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the O'Connor process. This would include files relating to complaints of criminal activity by
Crown witnesses and the operational records of the police force or government body from
whom records are sought.
R v. Black, [2011] A.J. No. 1291 (C.A.) leave denied, [2012] S.C.C.A. No. 49 at paras. 37 and 38
72.
The distinction in R v. Black between convictions and allegations/complaints has infected
other judgments in Alberta including R v. Levin, and R v. Letourneau:
...the scenario that Justice Charron used at para 50 to illustrate when the Crown has a duty to
investigate occurred when the Crown was "... confronted with the perjury of its own witness ...";
not a hypothetical incidence of wrongful witness conduct, but direct and identified misconduct.
Our Court of Appeal in R. v. Black, at para 37, stressed this distinction. Similarly, in R. v.
Letourneau, Allen PCJ concluded that allegations of police misconduct did not require the
'Stinchcombe'-like positive obligation for disclosure but instead should follow ...O'Connor...
R v. Levin, [2013] A.J. No. 54 (ABQB) at paras 33-41 [Citations Omitted]
73.
The Appellant also relies on the flawed decision of R v. Gebrekirstos. The decision does
not take into account: the reality that occurrence reports are first party disclosure outside of
sexual assault context (R v. Bottineau, PM [2009] Disclosure); the role that redactions play in
protecting residual privacy; and the fact that in R v. Thompson, which Paciocco J. found difficult
to reconcile with Quesnelle, was distinguishable in that the Appellant there sought material to
support a third party suspect application. R v. Gebrekirstos is premised on broad principles
without consideration to the practical operation of the criminal process.
R v. Gebrekirotos, [2013] O.J. No. 2241 (Ont.C.J.)
74.
In an application to obtain all occurrence reports, records of arrest, synopses relating to
the complainant, Kelly J. ordered the materials disclosed in accordance with Stinchcombe:
When a complainant…speaks to the police, she is not doing so in the context of a confidential
relationship..the Crown is required to produce the records generated by the police in
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accordance with Stinchcombe. The records will be subject to the same screening process
undertaken by the Crown prior to disclosure being made... the records will be produced subject
to the appropriate redactions, resolution of any privilege claims and relevance.
R v. W.Y., [2013] O.J. No. 2314 (Ont. Sup.Crt) at paras 6-7
75.
The Respondent submits that occurrence reports are disclosed outside the sexual assault
context upon request. To make access to the records subject to the third party records regime
would increase costs to the litigants, squander scarce judicial resources, and hinder access to
information that advances full and answer and defence rights. Occurrence reports are important
in cases where credibility of a witness is an issue, and are easily accessible computerized
records. It is a much more reasonable use of both State and individual resources to include these
materials in first party disclosure, rather than require, as a pre-requisite to access, time–
consuming and sometimes protracted litigation involved in third party records applications.
76.
Trial Crowns can redact unnecessary personal details, privileged information, and clearly
irrelevant information. Trial Judges control the admission and use of these documents to prevent
abusive cross-examinations. To create a third party infrastructure for these records would require
the record holder (the relevant police force) to send counsel to a third party records application to
argue over disclosure of forensic documents which are relevant, have low residual privacy, and
have a firm footing in criminal litigation. Moreover, precluding disclosure or placing difficult
barriers to access to information would undermine the strong thread of jurisprudence that
recognizes that in the contest between the State and the individual and the imbalance of power,
disclosure is the key to ensuring full answer and defence rights and preventing wrongful
convictions.
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D.
OUTCOME OF NON-DISCLOSURE
77.
The Appellant relies on R v. Dixon to submit that notwithstanding the non-disclosure of
the reports, the verdict would not have been affected. In R v. Dixon, the lawyer had a copy of the
occurrence reports and chose not pursue witness statements identified in the materials. Here the
Respondent has sought these materials from the pre-trial process and through the appeal process.
At no point have the materials sought been disclosed. As such, the Respondent re-iterates
MacFarland J.A.’s comments as to the applicability of the proviso: “Because the occurrence
reports were not produced to the appellant, we cannot know what effect, if any, the use of such
records may have had on the appellant's case. In such circumstances, the curative proviso ...
cannot be applied....”
R v. Dixon, supra. pp. 262 – 263
PART IV: SUBMISSION CONCERNING COSTS
78.
The Respondent makes no submission as to costs.
PART V: NATURE OF THE ORDER SOUGHT
79.
The Respondent respectfully submits that the appeal be dismissed.
RESPECTFULLY SUBMITTED this 27th day of February in Toronto
_______________________________________
Najma Jamaldin
Counsel for the Respondent
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PART VI
AUTHORITIES CITES
JUDGMENTS
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
R v. Mills, [1999] 3 S.C.R. 668.......... 50, 59, 61-66, 70, 78, 88-92, 94, 99, 115, 119 136
R v. Dixon, [1998] 1 S.C.R. 244 ......................................................................................23
R v. Egger, [1993] 2 S.C.R. 451................................................................................ p. 467
R v. McNeil, [2009] 1 S.C.R. 66..........................................................17 -25, 30, 42, 48-60
R v. Shearing, [2002] 3 S.C.R. 33..................................................................... 76, 105, 132
R v. Osolin, [1993] 4 S.C.R. 595........................................................................pp. 669-671
Driskell and Dangerfield, 2008 MBCA 60, [2008] 6 W.W.R. 615..................... 28, 32- 33
R. v. Bottineau, [2005] O.J. No. 4034 (S.C.J.).............................................................62-70
R v. Whitebear, [2012] A.J. No. 1271 (Alta. Q.B.)............................................................8
R v. Valentine, [2008] O.J. No. 4970 (Ont.Crt. Jus.)....................................................23-27
R v. T.S., [2012] ONCA 289...............................................................99, 100-106, 113, 136
R v. S.(L.), [2000] O.J. No. 3991 (Ont.S.C.)................................................................ 11-21
R v. Hammond [2002] O.J. No. 1596 (Ont.C.J.)....................................................13-16, 26
R v. Hundle, [2002] ABQB 618 (Alta. Q.B.).................................................................... 4
Morris v. The Queen, [1979] 1 S.C.R. 40............................................................... at p. 432
R v. Titus, [1983] 1 S.C.R. 259.........................................................................pp.263 – 264
R v. Gonzague, [1983] O.J. No. 53 (Ont.C.A.).............................................................19-20
R v. Corbett, [1988] 1 S.C.R. 670.............................................................................102-107
R v. Riley, [1992] O.J. No. 4072 (Ont.CA.)....................................................................7-8
R v. B. (A.R.), [1998] O.J. No. 3648 aff’d 2000 S.C.J. No. 30....................................15-18
R v. Keta, [1994] O.J. No. 652 (Gen.Div.)......................................................................6 -7
R v. Clifford, [2002] O.J. No. 865 (Ont.C.A.)........................................................... 43 - 46
R v. Batte (2000), 145 C.C.C. 449 (Ont.C.A.).......................................................... 73 - 76
R v. Dunbar [2003] B.C.J. No. 2767 (B.C.C.A.)………………………………... 45 -60
R v. Keukens [1995] O.J. No. 1223 (Ont. Crt. Gen. Div.)…………………………34-38
R v. Grandinetti, [2005] 1 S.C.R. 27, [2005] S.C.J. No. 3.............................................. .27
R v. Thompson, [2009] O.J. No. 1109 (Ont.CA).............................................................. 11
R v. Black, [2011] A.J. No. 1291 (AB. C.A.) leave denied, [2012] S.C.C.A. No. 49..37-38
R v. Levin, [2013] A.J. No. 54 (ABQB).....................................................................37 – 44
COMMISSION REPORTS
30.
Royal Commission on the Donald Marshall Junior Prosecution [the Marshall Report],
Vol. 1, 1989 Province of Nova Scotia, at pp. 68-79 and 238 – 244
31.
Manitoba. Report on the Commission of Inquiry into Certain Aspects of the Trial and
Conviction of James Driskell. Winnipeg: Department of Justice 2007.
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32.
Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure
and Resolution Discussions [the Martin Report], Queen’s Printer for Ontario, 1993
ARTICLES
33.
H. Archibald Kaiser, “McNeil: A Welcome Clarification and Extension of Disclosure
Principles: the adversary system has lingered on.” (2009) 62 C.R. (6th) 36
34.
Paciocco, D.“Stinchcombe on Steroids: the Surprising Legacy of McNeil” (2009) 62
C.R.(6th) 26
35.
Renke, Wayne, “Applications for Third-Party Records: The Relationship of the
O’Connor Procedures” (2002), 40 Alta. L. Rev. 593-654
36.
David Bowman Unrestricted Access: An Exploratory Assessment of Canada – U.S.
Criminal Intelligence and Individual Privacy 2011 Master’s Thesis Submissions p. 39 –
42 http://summit.sfu.ca/item/11245
37.
Presumption of Guilt? The Disclosure of Non-Conviction Records in Police Backgrounds
Checks Canadian Civil Liberties Association
38.
Sarah Lyseck (2006) Ontario Police IT System to Allow Database Exchange
CROWN PRACTICE MEMORANDUM
39.
Ministry of the Attorney General (Ontario) Practice Memorandum PM. [2009] Disclosure
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PART VII-STATUTORY PROVISIONS
Sections 278.1 – 278.9 of the Criminal Code of Canada, R.S.C. 1985, Chap. C-46
Definition of “record”
278.1 For the purposes of sections 278.2 to 278.9, “record” means any form of record that
contains personal information for which there is a reasonable expectation of privacy and
includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic,
counselling, education, employment, child welfare, adoption and social services records,
personal journals and diaries, and records containing personal information the production or
disclosure of which is protected by any other Act of Parliament or a provincial legislature, but
does not include records made by persons responsible for the investigation or prosecution of the
offence.
1997, c. 30, s. 1.
Production of record to accused
278.2 (1) No record relating to a complainant or a witness shall be produced to an
accused in any proceedings in respect of
(a) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 170, 171, 172, 173, 210,
211, 212, 213, 271, 272 or 273,
(b) an offence under section 144, 145, 149, 156, 245 or 246 of the Criminal Code, chapter C34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or
(c) an offence under section 146, 151, 153, 155, 157, 166 or 167 of the Criminal Code,
chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January
1, 1988,
or in any proceedings in respect of two or more offences that include an offence referred to in
any of paragraphs (a) to (c), except in accordance with sections 278.3 to 278.91.
Application of provisions
(2) Section 278.1, this section and sections 278.3 to 278.91 apply where a record is in the
possession or control of any person, including the prosecutor in the proceedings, unless, in the
case of a record in the possession or control of the prosecutor, the complainant or witness to
whom the record relates has expressly waived the application of those sections.
Duty of prosecutor to give notice
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(3) In the case of a record in respect of which this section applies that is in the possession or
control of the prosecutor, the prosecutor shall notify the accused that the record is in the
prosecutor’s possession but, in doing so, the prosecutor shall not disclose the record’s contents.
278.3 (1) An accused who seeks production of a record referred to in subsection 278.2(1)
must make an application to the judge before whom the accused is to be, or is being, tried.
No application in other proceedings
(2) For greater certainty, an application under subsection (1) may not be made to a judge or
justice presiding at any other proceedings, including a preliminary inquiry.
Form and content of application
(3) An application must be made in writing and set out
(a) particulars identifying the record that the accused seeks to have produced and the name of
the person who has possession or control of the record; and
(b) the grounds on which the accused relies to establish that the record is likely relevant to an
issue at trial or to the competence of a witness to testify.
Insufficient grounds
(4) Any one or more of the following assertions by the accused are not sufficient on their
own to establish that the record is likely relevant to an issue at trial or to the competence of a
witness to testify:
(a) that the record exists;
(b) that the record relates to medical or psychiatric treatment, therapy or counselling that the
complainant or witness has received or is receiving;
(c) that the record relates to the incident that is the subject-matter of the proceedings;
(d) that the record may disclose a prior inconsistent statement of the complainant or witness;
(e) that the record may relate to the credibility of the complainant or witness;
(f) that the record may relate to the reliability of the testimony of the complainant or witness
merely because the complainant or witness has received or is receiving psychiatric treatment,
therapy or counselling;
(g) that the record may reveal allegations of sexual abuse of the complainant by a person
other than the accused;
(h) that the record relates to the sexual activity of the complainant with any person, including
the accused;
(i) that the record relates to the presence or absence of a recent complaint;
(j) that the record relates to the complainant’s sexual reputation; or
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(k) that the record was made close in time to a complaint or to the activity that forms the
subject-matter of the charge against the accused.
Service of application and subpoena
(5) The accused shall serve the application on the prosecutor, on the person who has
possession or control of the record, on the complainant or witness, as the case may be, and on
any other person to whom, to the knowledge of the accused, the record relates, at least seven
days before the hearing referred to in subsection 278.4(1) or any shorter interval that the judge
may allow in the interests of justice. The accused shall also serve a subpoena issued under Part
XXII in Form 16.1 on the person who has possession or control of the record at the same time as
the application is served.
Service on other persons
(6) The judge may at any time order that the application be served on any person to whom
the judge considers the record may relate.
1997, c. 30, s. 1.
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Bill C-46
An Act to amend the Criminal Code (production of records in sexual offence proceedings)
Preamble
Whereas the Parliament of Canada continues to be gravely concerned about the incidence of
sexual violence and abuse in Canadian society and, in particular, the prevalence of sexual
violence against women and children;
Whereas the Parliament of Canada recognizes that violence has a particularly disadvantageous
impact on the equal participation of women and children in society and on the rights of women
and children to security of the person, privacy and equal benefit of the law as guaranteed by
sections 7, 8, 15 and 28 of the Canadian Charter of Rights and Freedoms;
Whereas the Parliament of Canada intends to promote and help to ensure the full protection of
the rights guaranteed by the Canadian Charter of Rights and Freedoms for all including those
who are accused of, and those who are or may be victims of, sexual violence or abuse;
Whereas the rights guaranteed by the Canadian Charter of rights and freedoms are guaranteed
equally to all and, in the event of a conflict, those rights are to be accommodated and reconciled
to the greatest extent possible;
Whereas the Parliament of Canada wishes to encourage the reporting of incidents of sexual
violence and abuse and to provide for the prosecution of offences within a framework of laws
that are consistent with the principles of fundamental justice and that are fair to complainants as
well as to accused persons;
Whereas the Parliament of Canada recognizes that the compelled production of personal
information may deter complainants of sexual offences from reporting the offence to the police
and may deter complainants from seeking necessary treatment, counselling or advice;
Whereas the Parliament of Canada recognizes that the work of those who provide services and
assistance to complainants of sexual offences is detrimentally affected by the compelled
production of records and by the process to compel that production;
And whereas the Parliament of Canada recognizes that, while production to the court and to the
accused of personal information regarding any person may be necessary in order for an accused
to make a full answer and defence, that production may breach the person’s right to privacy and
equality and therefore the determination as to whether to order production should be subject to
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careful scrutiny;
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CRIMINAL CODE OF CANADA, R.S.C. 1985, c. C-46
Evidence of complainant’s sexual activity
276. (1) In proceedings in respect of an offence under section 151, 152, 153, 153.1, 155 or
159, subsection 160(2) or (3) or section 170, 171, 172, 173, 271, 272 or 273, evidence that
the complainant has engaged in sexual activity, whether with the accused or with any other
person, is not admissible to support an inference that, by reason of the sexual nature of that
activity, the complainant
(a) is more likely to have consented to the sexual activity that forms the subjectmatter of the charge; or
(b) is less worthy of belief.
Idem
(2) In proceedings in respect of an offence referred to in subsection (1), no evidence shall be
adduced by or on behalf of the accused that the complainant has engaged in sexual activity
other than the sexual activity that forms the subject-matter of the charge, whether with the
accused or with any other person, unless the judge, provincial court judge or justice
determines, in accordance with the procedures set out in sections 276.1 and 276.2, that the
evidence
(a) is of specific instances of sexual activity;
(b) is relevant to an issue at trial; and
(c) has significant probative value that is not substantially outweighed by the danger
of prejudice to the proper administration of justice.
Factors that judge must consider
(3) In determining whether evidence is admissible under subsection (2), the judge, provincial
court judge or justice shall take into account
(a) the interests of justice, including the right of the accused to make a full answer
and defence;
(b) society’s interest in encouraging the reporting of sexual assault offences;
(c) whether there is a reasonable prospect that the evidence will assist in arriving at a
just determination in the case;
(d) the need to remove from the fact-finding process any discriminatory belief or bias;
(e) the risk that the evidence may unduly arouse sentiments of prejudice, sympathy or
hostility in the jury;
(f) the potential prejudice to the complainant’s personal dignity and right of privacy;
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(g) the right of the complainant and of every individual to personal security and to the
full protection and benefit of the law; and
(h) any other factor that the judge, provincial court judge or justice considers
relevant.
Application for hearing
276.1 (1) Application may be made to the judge, provincial court judge or justice by or on
behalf of the accused for a hearing under section 276.2 to determine whether evidence is
admissible under subsection 276(2).
Marginal note:Form and content of application
(2) An application referred to in subsection (1) must be made in writing and set out
(a) detailed particulars of the evidence that the accused seeks to adduce, and
(b) the relevance of that evidence to an issue at trial,
and a copy of the application must be given to the prosecutor and to the clerk of the court.
Jury and public excluded
(3) The judge, provincial court judge or justice shall consider the application with the jury
and the public excluded.
Judge may decide to hold hearing
(4) Where the judge, provincial court judge or justice is satisfied
(a) that the application was made in accordance with subsection (2),
(b) that a copy of the application was given to the prosecutor and to the clerk of the court
at least seven days previously, or such shorter interval as the judge, provincial court
judge or justice may allow where the interests of justice so require, and
(c) that the evidence sought to be adduced is capable of being admissible under
subsection 276(2),
the judge, provincial court judge or justice shall grant the application and hold a hearing under
section 276.2 to determine whether the evidence is admissible under subsection 276(2).
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FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY ACT, R.S.O. 1990,
CHAPTER F.31
Purposes
1. The purposes of this Act are,
(a) to provide a right of access to information under the control of institutions in accordance with the principles
that,
(i) information should be available to the public,
(ii) necessary exemptions from the right of access should be limited and specific, and
(iii) decisions on the disclosure of government information should be reviewed independently of
government; and
(b) to protect the privacy of individuals with respect to personal information about themselves held by
institutions and to provide individuals with a right of access to that information. R.S.O. 1990, c. F.31, s. 1.
Definitions
2.
“record” means any record of information however recorded, whether in printed form, on film, by
electronic means or otherwise, and includes,
(a)
correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or
graphic work, a photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record,
any other documentary material, regardless of physical form or characteristics, and any copy thereof, and
(b)
subject to the regulations, any record that is capable of being produced from a machine readable
record under the control of an institution by means of computer hardware and software or any other
information storage equipment and technical expertise normally used by the institution; (“document”)
Law enforcement
14. (1) A head may refuse to disclose a record where the disclosure could reasonably be expected to,
(a) interfere with a law enforcement matter;
(b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a
law enforcement proceeding is likely to result;
(c) reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;
(d) disclose the identity of a confidential source of information in respect of a law enforcement matter, or
disclose information furnished only by the confidential source;
(e) endanger the life or physical safety of a law enforcement officer or any other person;
(f) deprive a person of the right to a fair trial or impartial adjudication;
(g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations
or persons;
(h) reveal a record which has been confiscated from a person by a peace officer in accordance with an Act or
regulation;
(i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure
established for the protection of items, for which protection is reasonably required;
(j) facilitate the escape from custody of a person who is under lawful detention;
(k) jeopardize the security of a centre for lawful detention; or
(l) facilitate the commission of an unlawful act or hamper the control of crime. R.S.O. 1990, c. F.31, s. 14 (1);
2002, c. 18, Sched. K, s. 1 (1).
Idem
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(2) A head may refuse to disclose a record,
(a) that is a report prepared in the course of law enforcement, inspections or investigations by an agency which
has the function of enforcing and regulating compliance with a law;
(b) that is a law enforcement record where the disclosure would constitute an offence under an Act of
Parliament;
(c) that is a law enforcement record where the disclosure could reasonably be expected to expose the author
of the record or any person who has been quoted or paraphrased in the record to civil liability; or
(d) that contains information about the history, supervision or release of a person under the control or
supervision of a correctional authority. R.S.O. 1990, c. F.31, s. 14 (2); 2002, c. 18, Sched. K, s. 1 (2).
Refusal to confirm or deny existence of record
(3) A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) apply. R.S.O.
1990, c. F.31, s. 14 (3).
Exception
(4) Despite clause (2) (a), a head shall disclose a record that is a report prepared in the course of routine
inspections by an agency where that agency is authorized to enforce and regulate compliance with a particular
statute of Ontario. R.S.O. 1990, c. F.31, s. 14 (4).
Idem
(5) Subsections (1) and (2) do not apply to a record on the degree of success achieved in a law enforcement
program including statistical analyses unless disclosure of such a record may prejudice, interfere with or adversely
affect any of the matters referred to in those subsections. R.S.O. 1990, c. F.31, s. 14 (5).
Where disclosure permitted
42. (1) An institution shall not disclose personal information in its custody or under its control except,
(a) in accordance with Part II;
(b) where the person to whom the information relates has identified that information in particular and
consented to its disclosure;
(c) for the purpose for which it was obtained or compiled or for a consistent purpose;
(d) where disclosure is made to an officer, employee, consultant or agent of the institution who needs the
record in the performance of their duties and where disclosure is necessary and proper in the discharge of
the institution’s functions;
(e) for the purpose of complying with an Act of the Legislature or an Act of Parliament or a treaty, agreement or
arrangement thereunder;
(f) where disclosure is by a law enforcement institution,
(i) to a law enforcement agency in a foreign country under an arrangement, a written agreement or treaty
or legislative authority, or
(ii) to another law enforcement agency in Canada;
(g) where disclosure is to an institution or a law enforcement agency in Canada to aid an investigation
undertaken with a view to a law enforcement proceeding or from which a law enforcement proceeding is
likely to result;
(h) in compelling circumstances affecting the health or safety of an individual if upon disclosure notification
thereof is mailed to the last known address of the individual to whom the information relates;
(i) in compassionate circumstances, to facilitate contact with the spouse, a close relative or a friend of an
individual who is injured, ill or deceased;
(j) to a member of the Legislative Assembly who has been authorized by a constituent to whom the
information relates to make an inquiry on the constituent’s behalf or, where the constituent is
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incapacitated, has been authorized by the spouse, a close relative or the legal representative of the
constituent;
(k) to a member of the bargaining agent who has been authorized by an employee to whom the information
relates to make an inquiry on the employee’s behalf or, where the employee is incapacitated, has been
authorized by the spouse, a close relative or the legal representative of the employee;
(l) to the responsible minister;
(m) to the Information and Privacy Commissioner;
(n) to the Government of Canada in order to facilitate the auditing of shared cost programs; or
(o) subject to subsection (2), an educational institution may disclose personal information in its alumni records,
and a hospital may disclose personal information in its records, for the purpose of its own fundraising
activities or the fundraising activities of an associated foundation if,
(i) the educational institution and the person to whom the information is disclosed, or the hospital and
the person to whom the information is disclosed, have entered into a written agreement that satisfies
the requirements of subsection (3), and
(ii) the personal information is reasonably necessary for the fundraising activities. R.S.O. 1990, c. F.31,
s. 42; 2005, c. 28, Sched. F, s. 6 (1); 2006, c. 19, Sched. N, s. 1 (5-7); 2006, c. 34, Sched. C, s. 5; 2010,
c. 25, s. 24 (12).
65. (5.2) This Act does not apply to a record relating to a prosecution if all proceedings in respect of the
prosecution have not been completed. 2006, c. 34, Sched. C, s. 11.
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MUNICIPAL FREEDOM OF INFORMATION AND PROTECTION OF PRIVACY
ACT, R.S.O. 1990, CHAPTER M.56
Purposes
1. The purposes of this Act are,
(a) to provide a right of access to information under the control of institutions in accordance with the principles
that,
(i) information should be available to the public,
(ii) necessary exemptions from the right of access should be limited and specific, and
(iii) decisions on the disclosure of information should be reviewed independently of the institution
controlling the information; and
(b) to protect the privacy of individuals with respect to personal information about themselves held by
institutions and to provide individuals with a right of access to that information. R.S.O. 1990, c. M.56, s. 1.
Interpretation
2. (1) In this Act,
“close relative” means a parent, child, grandparent, grandchild, brother, sister, uncle, aunt, nephew or niece, whether
related by blood or adoption; (“proche parent”)
“head”, in respect of an institution, means the individual or body determined to be head under section 3;
(“personne responsable”)
“Information and Privacy Commissioner” and “Commissioner” mean the Commissioner appointed under
subsection 4 (1) of the Freedom of Information and Protection of Privacy Act; (“commissaire à l’information et à
la protection de la vie privée”, “commissaire”)
“institution” means,
(a) a municipality,
(b) a school board, municipal service board, city board, transit commission, public library board, board of health,
police services board, conservation authority, district social services administration board, local services
board, planning board, local roads board, police village or joint committee of management or joint board of
management established under the Municipal Act, 2001 or the City of Toronto Act, 2006 or a predecessor of
those Acts,
(c) any agency, board, commission, corporation or other body designated as an institution in the regulations;
(“institution”)
“law enforcement” means,
(a) policing,
(b) investigations or inspections that lead or could lead to proceedings in a court or tribunal if a penalty or
sanction could be imposed in those proceedings, or
(c) the conduct of proceedings referred to in clause (b); (“exécution de la loi”)
“Minister” means the minister designated under section 3 of the Freedom of Information and Protection of Privacy
Act as the responsible minister for the purposes of that Act; (“ministre”)
“personal information” means recorded information about an identifiable individual, including,
(a) information relating to the race, national or ethnic origin, colour, religion, age, sex, sexual orientation or
marital or family status of the individual,
(b) information relating to the education or the medical, psychiatric, psychological, criminal or employment
history of the individual or information relating to financial transactions in which the individual has been
involved,
(c) any identifying number, symbol or other particular assigned to the individual,
(d) the address, telephone number, fingerprints or blood type of the individual,
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(e) the personal opinions or views of the individual except if they relate to another individual,
(f) correspondence sent to an institution by the individual that is implicitly or explicitly of a private or
confidential nature, and replies to that correspondence that would reveal the contents of the original
correspondence,
(g) the views or opinions of another individual about the individual, and
(h) the individual’s name if it appears with other personal information relating to the individual or where the
disclosure of the name would reveal other personal information about the individual; (“renseignements
personnels”)
“personal information bank” means a collection of personal information that is organized and capable of being
retrieved using an individual’s name or an identifying number or particular assigned to the individual; (“banque
de renseignements personnels”)
“record” means any record of information however recorded, whether in printed form, on film, by electronic
means or otherwise, and includes,
(a) correspondence, a memorandum, a book, a plan, a map, a drawing, a diagram, a pictorial or graphic work, a
photograph, a film, a microfilm, a sound recording, a videotape, a machine readable record, any other
documentary material, regardless of physical form or characteristics, and any copy thereof, and
(b) subject to the regulations, any record that is capable of being produced from a machine readable record under
the control of an institution by means of computer hardware and software or any other information storage
equipment and technical expertise normally used by the institution; (“document”)
“regulations” means the regulations made under this Act; (“règlements”)
“spouse” means,
(a) a spouse as defined in section 1 of the Family Law Act, or
(b) either of two persons who live together in a conjugal relationship outside marriage. (“conjoint”) R.S.O. 1990,
c. M.56, s. 2 (1); 1997, c. 25, Sched. E, s. 8; 2000, c. 26, Sched. J, s. 2; 2002, c. 17, Sched. F, Table; 2006,
c. 19, Sched. N, s. 3 (1); 2006, c. 32, Sched. C, s. 35; 2006, c. 34, Sched. C, s. 13 (1, 2).
Personal information
(2) Personal information does not include information about an individual who has been dead for more than thirty
years. R.S.O. 1990, c. M.56, s. 2 (2).
Business identity information, etc.
(2.1) Personal information does not include the name, title, contact information or designation of an individual
that identifies the individual in a business, professional or official capacity. 2006, c. 34, Sched. C, s. 13 (3).
Same
(2.2) For greater certainty, subsection (2.1) applies even if an individual carries out business, professional or
official responsibilities from their dwelling and the contact information for the individual relates to that dwelling.
2006, c. 34, Sched. C, s. 13 (3).
Bodies considered part of municipality
(3) Every agency, board, commission, corporation or other body not mentioned in clause (b) of the definition of
“institution” in subsection (1) or designated under clause (c) of the definition of “institution” in subsection (1) is
deemed to be a part of the municipality for the purposes of this Act if all of its members or officers are appointed or
chosen by or under the authority of the council of the municipality. R.S.O. 1990, c. M.56, s. 2 (3); 2002, c. 17,
Sched. F, Table.
Designation of head
3. (1) The members of the council of a municipality may by by-law designate from among themselves an
individual or a committee of the council to act as head of the municipality for the purposes of this Act. R.S.O. 1990,
c. M.56, s. 3 (1); 2002, c. 17, Sched. F, Table.
Idem
(2) The members elected or appointed to the board, commission or other body that is an institution other than a
municipality may designate in writing from among themselves an individual or a committee of the body to act as
head of the institution for the purposes of this Act. R.S.O. 1990, c. M.56, s. 3 (2); 2002, c. 17, Sched. F, Table.
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If no designation
(3) If no person is designated as head under this section, the head shall be,
(a) the council, in the case of a municipality; and
(b) the members elected or appointed to the board, commission or other body in the case of an institution
other than a municipality. R.S.O. 1990, c. M.56, s. 3 (3); 2002, c. 17, Sched. F, Table.
Law enforcement
8. (1) A head may refuse to disclose a record if the disclosure could reasonably be expected to,
(a) interfere with a law enforcement matter;
(b) interfere with an investigation undertaken with a view to a law enforcement proceeding or from which a
law enforcement proceeding is likely to result;
(c) reveal investigative techniques and procedures currently in use or likely to be used in law enforcement;
(d) disclose the identity of a confidential source of information in respect of a law enforcement matter, or
disclose information furnished only by the confidential source;
(e) endanger the life or physical safety of a law enforcement officer or any other person;
(f) deprive a person of the right to a fair trial or impartial adjudication;
(g) interfere with the gathering of or reveal law enforcement intelligence information respecting organizations
or persons;
(h) reveal a record which has been confiscated from a person by a peace officer in accordance with an Act or
regulation;
(i) endanger the security of a building or the security of a vehicle carrying items, or of a system or procedure
established for the protection of items, for which protection is reasonably required;
(j) facilitate the escape from custody of a person who is under lawful detention;
(k) jeopardize the security of a centre for lawful detention; or
(l) facilitate the commission of an unlawful act or hamper the control of crime. R.S.O. 1990, c. M.56, s. 8 (1);
2002, c. 18, Sched. K, s. 14 (1).
Idem
(2) A head may refuse to disclose a record,
(a) that is a report prepared in the course of law enforcement, inspections or investigations by an agency which
has the function of enforcing and regulating compliance with a law;
(b) that is a law enforcement record if the disclosure would constitute an offence under an Act of Parliament;
(c) that is a law enforcement record if the disclosure could reasonably be expected to expose the author of the
record or any person who has been quoted or paraphrased in the record to civil liability; or
(d) that contains information about the history, supervision or release of a person under the control or
supervision of a correctional authority. R.S.O. 1990, c. M.56, s. 8 (2); 2002, c. 18, Sched. K, s. 14 (2).
Refusal to confirm or deny existence of record
(3) A head may refuse to confirm or deny the existence of a record to which subsection (1) or (2) applies. R.S.O.
1990, c. M.56, s. 8 (3).
Exception
(4) Despite clause (2) (a), a head shall disclose a record that is a report prepared in the course of routine
inspections by an agency that is authorized to enforce and regulate compliance with a particular statute of Ontario.
R.S.O. 1990, c. M.56, s. 8 (4).
Idem
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(5) Subsections (1) and (2) do not apply to a record on the degree of success achieved in a law enforcement
program including statistical analyses unless disclosure of such a record may prejudice, interfere with or adversely
affect any of the matters referred to in those subsections. R.S.O. 1990, c. M.56, s. 8 (5).
Where disclosure permitted
32. An institution shall not disclose personal information in its custody or under its control except,
(a) in accordance with Part I;
(b) if the person to whom the information relates has identified that information in particular and consented to
its disclosure;
(c) for the purpose for which it was obtained or compiled or for a consistent purpose;
(d) if the disclosure is made to an officer, employee, consultant or agent of the institution who needs the record
in the performance of their duties and if the disclosure is necessary and proper in the discharge of the
institution’s functions;
(e) for the purpose of complying with an Act of the Legislature or an Act of Parliament, an agreement or
arrangement under such an Act or a treaty;
(f) if disclosure is by a law enforcement institution,
(i) to a law enforcement agency in a foreign country under an arrangement, a written agreement or treaty
or legislative authority, or
(ii) to another law enforcement agency in Canada;
(g) if disclosure is to an institution or a law enforcement agency in Canada to aid an investigation undertaken
with a view to a law enforcement proceeding or from which a law enforcement proceeding is likely to result;
(h) in compelling circumstances affecting the health or safety of an individual if upon disclosure notification is
mailed to the last known address of the individual to whom the information relates;
(i) in compassionate circumstances, to facilitate contact with the spouse, a close relative or a friend of an
individual who is injured, ill or deceased;
(j) to the Minister;
(k) to the Information and Privacy Commissioner;
(l) to the Government of Canada or the Government of Ontario in order to facilitate the auditing of shared cost
programs. R.S.O. 1990, c. M.56, s. 32; 2006, c. 19, Sched. N, s. 3 (5); 2006, c. 34, Sched. C, s. 15.
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