#7: R. v. Quesnelle, 2014 SCC 46

One sentence explanation:

Unrelated police occurrences of a complainant are protected “records” as defined by section 278 of the Criminal Code and are therefore not disclosable unless a motion is brought by the defence and granted by the trial judge.

The case and its significance:

In the course of defending two sexual assault allegations against the accused, counsel for the defence brought a motion for the Crown to produce police records (“occurrence reports”) that related to one of the complainants’ previous dealings with police.  The Crown opposed this disclosure on the basis that these are “records” that contain privacy interests of the complainant and therefore are protected by sections 278.1 to 278.91 of the Criminal Code.  The trial judge agreed with the Crown.  The accused was convicted a trial and appealed.

On appeal, The Ontario Court of Appeal held that these occurrences were not “records” because as a matter of statutory interpretation, these types of records were not included in the s.278 “Mills“ regime.  The Court of Appeal also noted that police occurrence reports do not have a strong privacy interest in that information because they are sharing that information with the state and cannot reasonably expect that the information will remain private once this process is engaged. A new trial was ordered.

The Crown appealed to the Supreme Court of Canada.

The Supreme Court agreed with the trial judge and held that these sorts of complaints and occurrences generated by police are “records” as contemplated and protected by ss.278.1 to 278.91 of the Criminal Code (the Mills regime).

Justice Karakatsanis found: a) generally speaking, police occurrences will possess a “reasonable expectation of privacy” as contemplated by s.278, b) police occurrences are not statutorily or categorically exempt from s.278 applicability and protection unless they relate to the offence in question, and c) as a matter of well settled law, the defence must therefore bring an application in sexual offence cases to produce such records and only when they are likely relevant to the case at hand, and and that disclosure to the court is necessary in the interests of justice.

The Court noted that “the mere fact a police occurrence report exists is not enough to make it relevant to an otherwise unrelated prosecution […] However, occurrence reports which raise legitimate questions about the credibility of the complainant or a witness, or some other issue at trial, will be treated as relevant. (para 17).  The Court also reemphasized the Crown’s duty to make reasonable inquiries, and for police forces to disclose such information notwithstanding the Mills protection under s.278.

As poignantly put: “The Mills regime simply replaces the obligation to produce relevant records directly with an obligation to give notice of their existence.”

This case helped to settle an uncertain area of the law that lower level courts and lawyers struggled with.  For the most part, such occurrences were being disclosed as a matter of routine Stinchcombe obligations.  This case changed that trend and made it clear that even police occurrences fall within the very broad protections of s.278 of the Criminal Code.  

Although this case seems like a setback for the defence by making it more difficult to see if other incredible complaints exist, or perhaps form a pattern of fabrication, there are some things to be gained from it.

As stated, the Court made it clear that the Crown cannot shirk their duties to look into such matters; indeed, they are obligated to do so and if such complaints exist, the Crown must advise the defence of such records and defence counsel can then bring an appropriate application if desired.  There is no doubt that this case creates a lot more work and diligence for defence lawyers, but the Court also alluded to how such records can be relevant provided that a proper evidentiary foundation is made out.

One overriding lesson to be learned in this case is that when bringing such applications the defence ought not to play their cards too close to their chest with respect to the direction in which the defence is heading.  Relevance is impossible to determine in a vacuum and the less information provided by the defence as to why the application is relevant, the harder it is for any trial judge to determine how such records are “likely relevant” to the defence.  Since existence of the record alone is not enough (as made clear by this case), it is for the defence to demonstrate how such records are relevant.

One practical point that makes such applications exceptionally difficult for the defence is that without knowing the content of such occurrences (since the Mills regime does not permit disclosure of the contents to the defence to review), the defence is trying to determine relevance in the dark. Keep in mind that these occurrences only came to light through a documentary that was made public.  In most instances, occurrences (even ones that are highly relevant) will remain secret unless the Crown discovers them and advises defence of their existence, but not their content.  This practical difficulty places the defence at a serious disadvantage in most cases.  Perhaps that is why Justice Karakatsanis noted at paragraph 18:

“The Mills regime governs the disclosure of “records” in sexual offence trials, but does not displace the Crown’s duty to make reasonable inquiries and obtain potentially relevant material (or the police duty to pass on material to the Crown) under McNeil.  As an officer of the court and Minister of Justice, the Crown is duty-bound to seek justice, not convictions, and to avoid wrongful convictions, in the prosecutions of all offences, including sexual offences.”

For further commentary, you can read a Dallas Mack article on the Court of Appeal decision here.