Current & Curious: A drastic but unfortunate shift in the law of disclosure

Vincent Quesnelle was charged with several offences including sexual assault on two different complainants, TR and LI; the assault on TR was alleged to have occurred on December 29, 2006 and the assault on LI was alleged to have occurred on March 5, 2007.

 

Prior to trial there was a radio documentary created about TR “and the prosecution of certain alleged assaults against her”. TR and one of the detectives who assisted in the present case were interviewed for the show. That detective indicated that she came across “four or five occurrences in relation to sexual assaults” related to TR.

The defence learned of this radio documentary and sought the occurrence reports related to TR. The trial judge held that those records were “records” within the meaning of section 278.1 and where not subject to disclosure under the Stinchcombe regime.

Quesnelle was convicted. He appealed: 2013 ONCA 180.

The central issue on appeal was whether “police-made occurrence reports that are unrelated to the specific offence being prosecuted but involve witnesses ought to be disclosed in accordance with s. 278.2 of the Criminal Code or, alternatively, with the regime set out in” Stinchcombe [para 19].

 

Ruling:

MacFarland JA, writing for a unanimous court, began by noting that “whether or not these occurrences reports are subject to disclosure pursuant to s. 278.2 is a matter of statutory interpretation” [para 23].

In short, MacFarland JA concluded on this point:

As a matter of statutory interpretation, I cannot agree with the trial judge’s conclusion or the weight of the judicial authority to this point. In my view, the object of s. 278.2 and the intention of Parliament, as well as the words of s. 278.1 read in their grammatical and ordinary sense, indicate that police-made occurrence reports are excluded from the application of the s. 278 regime [para 25].

MacFarland JA’s conclusion is based on two key points. First, that police occurrence reports are not captured by section 278.1 and second, that since the reports in question are in the possession of the “police” they are disqualified from the 278.2 disclosure regime based on the exclusionary portion of 278.1. With respect, both of these conclusions are problematic.

 

Police occurrence reports are captured by 278.1:

MacFarland JA concluded that police occurrence reports are not captured by 278.1 based on the view that the “nature” of the information that Parliament was attempting to protect did not include this type of information, in part because those who are make complaints to the police cannot expect privacy:

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.

When a 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. Nor is that individual seeking to withhold that information from the control or dissemination of the state. Indeed, an individual speaking to a police officer in this context is expressly sharing information with the state, for the purpose of having the assault investigated and addressed.   

More specifically, a complainant cannot reasonably expect that the information, personal though it is because of the nature of the complaint, will remain a private matter between her and the officer. The complainant will know that the information she provides will be the basis for charges against and the prosecution of the person who assaulted her, and that the information will, in the usual course, come out at a public trial. In my view, there can be no “reasonable expectation of privacy” in information a complainant provides to police and which the police record in one form or another. Similar reasoning would apply to information provided to police by a witness [emphasis added]; [paras 32-34].

With respect, this conclusion and these reasons are flawed.

First, the type of information provided in some police occurrence reports is as intimate and provides as much information about one’s identity and life-style as the records enumerated in 278.1 – if not more. For example, the information provided by a victim of a sexual assault to the police is likely to be more intimate than that provided by an individual to their employer or educator.

I pause to note that the interpretation of 278.1 as protecting only “intimate” information appears overly restrictive. It is hard to imagine what “intimate” information provided in a “trust like relationship” may be contained in employment or education records, but more importantly, it is entirely inconsistent with the opening words of 278.1 which seeks to protect “any form of record” that attracts a “reasonable expectation of privacy”.

Regardless, the point is that information in police occurrence reports is likely to contain equally if not more sensitive details as that in the enumerated records of 278.1

Second, the conclusion that those who report sexual assaults to the police cannot expect any privacy in part because they are passing it along to the state and in part because there will be a “public trial” is problematic.

The provision of information to “the state” does not lead to the conclusion that there can be no expectation of privacy therein. Indeed, the “state” may be an employer or educator – or even the “counsellor” (for those who might work for the “state” and seek in-house counselling). No one would seriously argue that the provision of information to those “state” personnel would lead to the loss of an expectation of privacy. In the context of a sexual assault victim, the police are the “necessary” recipients of information. The victim is not “choosing” to share this with the world – she is taking the “necessary” steps to report the matter.

Further, the fact that this may lead to an investigation, charges and “public” trial does not remove the expectation of privacy. Indeed, there are limits on the use that can be made of the disclosure provided to defence, there are publication bans prohibiting the publication of any information that might identify the victim and not all information contained in reports made by the victim will be elicited at trial. The victim provides the information to the police for the purpose of that prosecution. No complainant would expect – nor should they – that the information will be shared with the world at large or to all accused persons in any case where she is a victim or witness in the future.

The following comments of Molloy J in R v Khan, 2004 CarswellOnt 5233 (SCJ) [see also R v Francois, 2005 CarswellOnt 1804 (SCJ)] are apt:

Counsel for the defence argued that there was no expectation of privacy in the files requested because they would routinely have been disclosed in the course of the prosecutions to which they related. There is no merit to that argument. Firstly, it is not necessarily the case that charges proceeded in each case and it follows that there may not have been disclosure every time there was an arrest. Secondly, and more importantly, if there was disclosure, it would have been solely to the persons involved in the particular case and solely for the purposes of that case. That is a far cry from disclosure to a complete stranger and cannot constitute waiver of any privacy interest in the material.

Third, regardless of the “nature” of the information in police occurrence reports and regardless of whether an expectation of privacy does exist, section 278.1 still protects these reports as they contain “personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature”. In Ontario the disclosure of information in those reports is protected by the Municipal Freedom of Information and Protection of Privacy Act: R v Barnes, [2004] OJ No 5572 (CJ); R v RL, [2007] OJ No 4095 (SCJ); R v McAdam, 2008 CanLII 20346 (ONSC).

 

Police records are not captured by the exclusionary clause in 278.1:

MacFarland JA concluded that police records, at large, are excluded by the words 278.1 from the protection of 278.2:

The records excluded under this definition are those “made by persons responsible for the investigation or prosecution of the offence”. They are not records made by other persons which may be held by the police or the prosecution; the excluded records are only those “made” by those responsible for the investigation or prosecution of the offence.

Further, there is no language which limits the word “records” to only those records made in relation to the specific offence in issue. Had it been Parliament’s intention to limit the exclusion to only those records prepared in relation to the specific offence in issue, it could easily have employed language to accomplish that purpose.  It did not [paras 36-37].

With respect, this conclusion and these reasons are flawed.

Parliament has employed language to limit the exclusionary clause to only the offence in question. 278.1 excludes records “made by persons responsible for the investigation or prosecution of the offence” [emphasis added].

A plain reading of this portion of 278.1 leads to the conclusion that only those records made in relation to “the” investigation are excluded. Records relating to other investigations are not excluded from 278.1. In other words, 278.1 does not exclude records made for “any” investigation or “any” offence.

This reading is not only grammatically more accurate but it makes good sense. Parliament’s intent is obvious. It was noting that those records which pertained to the investigation of the offence – despite being otherwise captured by 278.1 – were not protected by 278.2 and should be disclosed in accordance with Stinchcombe.

There is nothing in the language of this exclusionary portion of 278.1 that suggests it should apply as broadly as suggested by MacFarland JA. Indeed, if it did, it would create possible odd and unfair results. Consider whether the records held by other police agencies, not those “responsible” for this investigation, but nonetheless in possession of such information would be subject to 278.1.

If Parliament intended to exclude all records held by all police agencies relating to any investigation into any offence it would have said so.

 

Closing thought:

Section 278.1 should apply to police occurrence reports. The section is broad enough to capture those reports and the exclusionary clause does not apply.

Ironically, MacFarland JA noted the following – from the preamble of the Bill to introduce the 278.1 provisions – as the “intent” of Parliament.

In the preamble, Parliament recognizes that the compelled production of personal information in accordance with ordinary disclosure principles may deter victims of sexual offences from reporting and seeking “necessary treatment, counselling, or advice”. It also acknowledges that such unconstrained disclosure may detrimentally affect the work of those who provide services and assistance to complainants of sexual offences [emphasis added]; [para 28]. 

If this truly was Parliament’s intent – and it seems quite reasonable to so conclude – it is unlikely to be furthered by this ruling. Indeed, this ruling is likely to have a chilling effect of reporting. If every complainant knew that everything they tell the police and hand over to the police will thereinafter be provided to every accused person on every cause in which she is a witness or victim, it is not hard to imagine some hesitation or concern may arise.

The 278.1 regime is not overly onerous. It does, however, provide a valuable and important level of protection. That protection should apply to police occurrence reports.

DGM

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