A Criminal Mind: Disclosure of police records a matter of national importance

You know that feeling that something’s not quite right with a case. You haven’t had all of the disclosure and your client is telling you the complainant is lying.

She’s a frequent flier who’s known to the police, he says. He also claims she made a complaint of spousal abuse or, worse, sexual assault before.

So you write to ask for disclosure. You request a list of contacts she has had with the local police force and the underlying police reports. They deny the requests.

So what do you do now? The volley of letters is over and you have nothing to show for it except the Crown’s assertion that she has no criminal record.

Fortunately, the March 26 case of R. v. Quesnelle from the Ontario Court of Appeal is giving defence lawyers more access to information about complainants. In Quesnelle, there were two complainants. Prior to trial, the detective told a radio broadcast that when she reviewed one complainant’s file, she had come across four or five occurrences in relation to sexual assaults.

The provisions in ss. 278.1 to 278.9 of the Criminal Code protect the privacy interests of complainants in sexual matters and prohibit the disclosure of records.

But what records? The law defines a record as “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.”

Note how the provision specifically exempts records made by investigating and prosecuting agencies.

When defending a client in a sexual matter, these provisions come into play. Authorities have even withheld police reports in the Crown’s possession where there was no consent to disclosure by the complainant. Defence counsel would then bring an O’Connor application for materials in the possession of the authorities.

But even when acting in domestic assault or other violent matters, the defence may run up against roadblocks. If you ask, the Crown will disclose any adult criminal record but usually not any outstanding matters. Commonly, the Crown refuses to disclose police reports when the same person made a complaint about a third party.

In Quesnelle, Justice Jean MacFarland noted that the bulk of earlier jurisprudence had ruled that police reports involving complainants or witnesses in unrelated matters are records for which there’s a reasonable expectation of privacy.

Quesnelle marks a major change for defence counsel seeking disclosure of police occurrence reports and will be key in preventing wrongful convictions. Since the investigating police officer examined them, the four or five undisclosed occurrences were first-party records. The Ontario Court of Appeal held that there’s no privacy interest in police reports as the complainant expects that the matter will become public. And the court held that the defence could seek copies of other occurrence reports related to the two complainants and that the Crown must disclose them pursuant to its Stinchcombe disclosure obligation.

A number of Ontario decisions have commented upon Quesnelle. In R. v. W.Y., for example, Justice Jane Kelly adopted its reasoning and ordered disclosure of all occurrence reports, records of arrest, synopses or similar documentation related to the complainant as produced by the Toronto Police Service. “When a complainant, such as this one, speaks to the police, she is not doing so in the context of a confidential relationship,” she wrote.

On May 23, the Crown filed a leave to appeal application with the Supreme Court in relation to Quesnelle. It seems likely the court will want to grant leave to deal with this pressing issue of national importance.

Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].

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