SUPREME
COURT OF CANADA
Between:
Attorney
General of Ontario, 3rd Party Record Holder
Appellant
and
Lawrence
McNeil, Her Majesty the Queen and Chief
of
Barrie Police Service, 3rd Party Record Holder
Respondents
‑ and ‑
Attorney
General of Alberta, Matthew
Marshall,
Police
Association of Ontario and Criminal
Lawyers’
Association (Ontario)
Interveners
Coram: McLachlin
C.J. and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and
Rothstein JJ.
Reasons
for Judgment:
(paras. 1 to 61)
|
Charron J.
(McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella and Rothstein JJ.
concurring)
|
* Bastarache J.
took no part in the judgment.
______________________________
R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66
Attorney General of Ontario, 3rd Party Record Holder Appellant
v.
Lawrence
McNeil, Her Majesty The Queen and Chief
of Barrie Police Service, 3rd Party Record Holder Respondents
and
Attorney
General of Alberta, Matthew Marshall,
Police
Association of Ontario and Criminal
Lawyers’ Association (Ontario) Interveners
Indexed as: R. v. McNeil
Neutral citation: 2009 SCC 3.
File No.: 31852.
2008: March 19; 2009: January 16.
Present: McLachlin C.J. and Bastarache,
Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ.
on appeal from the court of appeal for ontario
Criminal law — Evidence — Production — Crown’s duty
to disclose — Corollary police obligation to disclose to Crown — Accused
charged with drug‑related offences — Crown’s main police witness involved
in drug‑related misconduct leading to disciplinary proceedings and
criminal charges — Accused sought production of arresting officer’s police
disciplinary records and criminal investigation files — Whether common law
production regime for third party records applicable only in cases where these
records attract reasonable expectation of privacy — Whether criminal
investigation files relating to third party accused attract reasonable
expectation of privacy — Whether police records relating to findings of
misconduct by officer involved in investigation against accused fall within
scope of first party disclosure package from police to Crown.
The accused was convicted on multiple drug charges. The
arresting officer was the Crown’s main witness. After his conviction but
before sentencing, the accused learned that the arresting officer was engaged
in drug‑related misconduct that had led to both internal disciplinary
proceedings under the Ontario Police Services Act and to criminal charges.
In a preliminary motion before the Court of Appeal, the accused sought
production of all documents related to the arresting officer’s misconduct,
claiming that he required this material to assist him in preparing an
application to introduce fresh evidence on his appeal from conviction. The
Court of Appeal held that an O’Connor‑type procedure is only
required in cases where third party records attract a reasonable expectation of
privacy, and concluded that no expectation of privacy existed in respect of the
criminal investigation files. Subject to appropriate redactions and the
resolution of any privilege claims, the Court of Appeal ordered the third
parties to produce the criminal investigation files in their possession related
to the charges against the arresting officer to the federal Crown prosecuting
the accused’s case. Subsequently, the arresting officer pleaded guilty to one
of the criminal charges brought against him. Evidence of the officer’s
conviction was admitted on the accused’s appeal, and the accused’s convictions
were set aside, following which the Crown undertook not to re‑prosecute
him. The production issue in this case was rendered moot and the accused
withdrew his participation in this appeal. The Court appointed an amicus curiae
and heard this appeal despite its mootness.
Held: The appeal is
allowed and the order in the court below is set aside. The application having
become moot, the Court makes no further order.
The Crown’s obligation to disclose all relevant
information in its possession to an accused is well established at common law
under the Stinchcombe regime. Under Stinchcombe, the Crown’s
first party disclosure obligation extends only to material relating to the
accused’s case in the possession or control of the prosecuting Crown. A
question then arises as to whether the “Crown” for disclosure purposes
encompasses other state authorities. While the roles of the Crown and the
police are separate and distinct, the police have a duty to participate in the
disclosure process. The necessary corollary to the Crown’s disclosure duty
under Stinchombe is the obligation of police to disclose to the Crown
all material pertaining to its investigation of the accused. For the purposes
of fulfilling this corollary obligation, the investigating police force,
although distinct and independent from the Crown at law, is not a third party.
Rather, it acts on the same first party footing as the Crown. Records relating
to findings of serious misconduct by police officers involved in the
investigation against the accused properly fall within the scope of the first
party disclosure package due to the Crown from police, where the police
misconduct is either related to the investigation, or the finding of misconduct
could reasonably impact on the case against the accused. [14‑15] [22-23]
Production of disciplinary records and criminal
investigation files in the possession of the police that do not fall within the
scope of this first party disclosure package is governed by the O’Connor
regime for third party production. The O’Connor procedure provides a
general mechanism at common law for ordering production of any record beyond
the possession or control of the prosecuting Crown, and is not limited to cases
where third party records attract a reasonable expectation of privacy. To
limit the applicability of the O’Connor regime to those cases where a
third party has an expectation of privacy in the targeted documents would raise
some uncertainty concerning the appropriate mechanism for accessing third party
records when it is unknown whether a reasonable expectation of privacy
attaches. [11] [15]
The first step in the O’Connor procedure for
production of documents in the possession of a third party is for the person
seeking production to satisfy the court that the documents are likely relevant
to the proceedings. If likely relevance is demonstrated by the applicant, the
third party record holder may be ordered to produce the documents for
inspection by the court in order to determine whether production should be
ordered. Ultimately, what is required at this second stage of the common law
regime is a balancing of the competing interests at stake in the particular
circumstances of the case. [28] [34] [35]
In most cases, a useful starting point for courts in
balancing the competing interests at the second stage of an O’Connor
application will be to assess the true relevancy of the targeted record in the
case against the accused. Once a court has ascertained upon inspection that
third party records are indeed relevant to the accused’s case, in the sense
that they pertain to an issue in the trial, the second stage balancing exercise
is easily performed. In effect, a finding of true relevance puts the third party
records in the same category for disclosure purposes as the fruits of the
investigation against the accused in the hands of the prosecuting Crown under Stinchcombe.
It may be useful to pose the question in this way: If the third party record in
question had found its way into the Crown prosecutor’s file, would there be any
basis under the first party Stinchcombe disclosure regime for not
disclosing it to the accused? If the answer to that question is no, there can
be no principled reason to arrive at a different outcome on the third party
production application. The accused’s interest in obtaining disclosure for the
purpose of making full answer and defence will, as a general rule, outweigh any
residual privacy interest held by third parties in the material. This is
particularly so in respect of criminal investigation files concerning third
party accused. [20] [39] [42]
That is not to say that residual privacy interests in
the contents of criminal investigation files, police disciplinary records or
any other third party records should be disregarded. The court should ensure
that a production order is properly tailored to meet the exigencies of the case
but do no more. To ensure that only relevant material is produced and that no
unwarranted invasion of privacy interests occurs, the court may find it
necessary to make a production order subject to redactions or other
conditions. In addition, when just and appropriate to do so, the court may
well impose restrictions on the dissemination of the information produced for
purposes unrelated to the accused’s full answer and defence or prosecution of
an appeal. [43‑44] [46]
Cases Cited
Referred to: R.
v. O’Connor, [1995] 4 S.C.R. 411; R. v. Mills, [1999] 3 S.C.R. 668; R.
v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Stinchcombe, [1995] 1
S.C.R. 754; R. v. Gingras (1992), 120 A.R. 300; R. v. Jack (1992),
70 C.C.C. (3d) 67; R. v. T. (L.A.) (1993), 14 O.R. (3d) 378; R. v.
Gagné (1998), 131 C.C.C. (3d) 444; Driskell v. Dangerfield, 2008
MBCA 60, [2008] 6 W.W.R. 615; R. v. MacPherson (1991), 105 N.S.R. (2d)
123; R. v. Oliver (1995), 143 N.S.R. (2d) 134; R. v. Campbell,
[1992] N.S.J. No. 702 (QL); R. v. Chaplin, [1995] 1 S.C.R. 727; R.
v. Durette, [1994] 1 S.C.R. 469; R. v. Clifford (2002), 163 C.C.C. (3d)
3; P. (D.) v. Wagg (2004), 239 D.L.R. (4th) 501; R. v. Arsenault
(1994), 153 N.B.R. (2d) 81; R. v. Ahluwalia (2000), 138 O.A.C. 154.
Statutes and Regulations Cited
Access to Information and Protection of Privacy
Act, S.N.L. 2002, c. A‑1.1, s. 22.
Act respecting Access to Documents Held by Public
Bodies and the Protection of Personal Information,
R.S.Q., c. A‑2.1, s. 28.
Canadian Charter of Rights and Freedoms, s. 7 .
Code of ethics of Québec police officers, (1990) 122 G.O. II, 1760, s. 7(2).
Code of Professional Conduct Regulation, B.C. Reg. 205/98, s. 5(e).
Code of Professional Conduct Regulation — Police
Act, N.B. Reg. 2007‑81, s. 36(1)(d)(iii).
Criminal Code, R.S.C.
1985, c. C‑46, ss. 278.1 to 278.91 , 278.3(4) , 698(1) , 700(1) .
Freedom of Information and Protection of Privacy
Act, R.S.A. 2000, c. F‑25, s. 20.
Freedom of Information and Protection of Privacy
Act, R.S.B.C. 1996, c. 165, s. 15.
Freedom of Information and Protection of Privacy
Act, R.S.O. 1990, c. F.31, s. 14.
Freedom of Information and Protection of Privacy
Act, R.S.P.E.I. 1988, c. F‑15.01, s. 18.
Freedom of Information and Protection of Privacy
Act, S.M. 1997, c. 50, s. 25.
Freedom of Information and Protection of Privacy
Act, S.N.S. 1993, c. 5, s. 15.
Freedom of Information and Protection of Privacy
Act, S.S. 1990‑91, c. F‑22.01,
s. 15.
General, O. Reg.
123/98 (Police Services Act), Sch., s. 2(1)(c)(vi).
Police Service Regulation, Alta. Reg. 356/90, s. 5(2)(h)(vii).
Police Services Act,
R.S.O. 1990, c. P.15, s. 42(1)(e).
Privacy Act, R.S.C.
1985, c. P‑21, s. 22 .
Right to Information Act, S.N.B. 1978, c. R‑10.3, s. 6(a), (f).
Authors Cited
Ontario. Report of the Attorney General’s
Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions.
Toronto: The Committee, 1993.
Ontario. Review and Recommendations Concerning
Various Aspects of Police Misconduct, vol. I. Toronto: Toronto Police
Service, 2003 (online:
http://www.torontopolice.on.ca/publications/files/reports/ferguson1.pdf).
Paciocco, David M. “Filling the
Seam between Stinchcombe and O’Connor: The ‘McNeil’
Disclosure Application” (2007), 53 Crim. L.Q. 161.
APPEAL from a judgment of the Ontario Court of Appeal
(Feldman, Simmons and Blair JJ.A.) (2006), 218 O.A.C. 1, 215 C.C.C. (3d) 22, 43
C.R. (6th) 370, [2006] O.J. No. 4746 (QL), 2006 CarswellOnt 7557, allowing
a motion for production of certain documents. Appeal allowed.
Christine Bartlett‑Hughes
and Elise Nakelsky, for the appellant.
James C. Martin
and Rick Visca, for the respondent Her Majesty the Queen.
H. Reginald Watson
and Jill Sexsmith, for the respondent the Chief of Barrie Police
Service, 3rd Party Record Holder.
James A. Bowron,
for the intervener the Attorney General of Alberta.
Gary R. Clewley
and Henry S. Brown, Q.C., for the intervener Matthew
Marshall.
Ian J. Roland and
Danny Kastner, for the intervener the Police Association of Ontario.
David M. Porter
and Christopher A. Wayland, for the intervener the Criminal
Lawyers’ Association (Ontario).
Marie Henein and Jordan
Glick, for the amicus curiae.
The judgment of the Court was delivered by
Charron J. —
1. Introduction
[1]
This appeal concerns an accused’s motion for production of police
disciplinary records and criminal investigation files relating to the Crown’s
main police witness in the case against him. The respondent Lawrence McNeil
brought his motion in accordance with the procedure set out in R. v.
O’Connor, [1995] 4 S.C.R. 411, for the production of third party records.
The proceedings against McNeil have since been discontinued, McNeil has
withdrawn his participation in this appeal, and the production issue is now
moot.
[2]
Issues concerning the production of police disciplinary records and
criminal investigation files relating to third party accused occur frequently
and, because the proceedings in which these questions generally arise are
interlocutory in nature, production orders are often evasive of appellate
review. In addition, the third parties in the present case have a subsisting
interest in clarifying some of the uncertainties arising from the decision
below. For these reasons, the Court appointed an amicus curiae and
heard this appeal despite its mootness.
[3]
The question of whether production of the particular documents at issue
in the court below should or should not have been ordered is no longer before
us. The evidence and prior proceedings in the current case will therefore be
reviewed simply to provide the necessary background for discussion of the
issues canvassed by the parties on this appeal.
2. Background
[4]
McNeil was arrested by Constable Rodney Hackett and other members of the
Barrie Police Service in respect of an alleged drug transaction. He was
subsequently prosecuted by the federal Crown and convicted on multiple drug
charges, including possession of marijuana and cocaine for the purpose of
trafficking. Hackett was the Crown’s main witness in the case against McNeil.
He was the only witness who testified to the reasonable grounds supporting
McNeil’s arrest. In addition, the trial judge’s ultimate finding that McNeil’s
admitted possession of marijuana and cocaine was for the purpose of trafficking
turned on Hackett’s credibility.
[5]
After his conviction but before sentencing, McNeil learned that Hackett
was engaged in drug‑related misconduct that had led to both internal
disciplinary proceedings under the Ontario Police Services Act, R.S.O.
1990, c. P.15, and to criminal charges. Both proceedings against Hackett were
ongoing at the time. Following an aborted application to reopen his trial to
introduce evidence about Hackett’s misconduct, McNeil chose to proceed to
sentence and appeal his conviction instead.
[6]
In a preliminary motion before the Court of Appeal for Ontario, McNeil
sought production of all documents related to Hackett’s misconduct, claiming
that he required this material to assist him in preparing an application to
introduce fresh evidence on his appeal from conviction. The police
disciplinary and criminal investigation documents at issue were intermingled,
and were in the possession of both the Barrie Police Service and the provincial
Crown prosecuting the criminal charges against Hackett. Both entities resisted
production, and the federal Crown supported their opposition to the motion.
[7]
In O’Connor, this Court set out a two-part test for
production of third party records. First, the applicant must demonstrate that
the information contained in the records is likely relevant. In the appellate
context, it was therefore incumbent on McNeil to show that the targeted
documents were likely relevant to his proposed application to introduce fresh
evidence on his appeal from conviction. Second, if the threshold test of
likely relevance is met, the court may order production of the records for its
inspection. With the targeted documents before it, the court weighs “the
positive and negative consequences of production, with a view to determining
whether, and to what extent, production should be ordered” (O’Connor, at
para. 137). The second part of the O’Connor test essentially requires a
court to conduct a balancing of the third party’s privacy interest in the
targeted documents, if any, and the accused’s interest in making full answer
and defence.
[8]
In the present case, the Court of Appeal found that some of the targeted
records, including both disciplinary police records and criminal investigation
files, met the requisite relevancy threshold, satisfying the first part of the O’Connor
test. Rather than proceeding to the second part of the test, however, the
court held that an “O’Connor-type procedure” is only required in cases
where third party records attract a reasonable expectation of privacy ((2006),
218 O.A.C. 1). The court drew a distinction between criminal investigation
files and police disciplinary records, and concluded that no expectation of
privacy existed in respect of the former. Accordingly, subject to appropriate
redactions and the resolution of any privilege claims, the court ordered the
third parties to produce the criminal investigation files in their possession
related to the charges against Hackett to the federal Crown prosecuting
McNeil’s case. The court directed the prosecuting Crown in McNeil’s case to
determine whether the documents were in fact relevant to McNeil’s appeal and,
if so, to make disclosure to the accused. As for the police disciplinary
records, the court noted the conflicting jurisprudence on whether such records
are subject to a reasonable expectation of privacy and invited counsel to make
further submissions on this issue. The balance of the motion was adjourned
accordingly.
[9]
The Attorney General of Ontario, as third party record holder, was
granted leave to appeal to this Court and the production order was stayed
pending disposition of the appeal. Subsequently, Hackett pleaded guilty to one
of the criminal charges brought against him. Evidence of Hackett’s conviction
was admitted on McNeil’s appeal before the Court of Appeal for Ontario, and his
convictions were set aside, following which the Crown undertook not to
re-prosecute him. McNeil then withdrew his participation in the appeal. This
Court acceded to the remaining parties’ request to proceed with the appeal
despite its mootness and appointed an amicus curiae to maintain a proper
adversarial context.
3. Overview of the Issues on Appeal
[10] As
stated earlier, the third party record holders in this case seek clarification
in respect of some of the uncertainties arising from the decision below. The
issues canvassed before this Court are the following.
[11] First,
by limiting the applicability of the O’Connor production regime to those
cases where a third party has an expectation of privacy in the targeted
documents, the decision under appeal raises some uncertainty concerning the
appropriate mechanism for accessing third party records when it is unknown
whether a reasonable expectation of privacy attaches. As I will explain, the
procedure set out in O’Connor provides a general mechanism at common law
for ordering production of any record beyond the possession or control
of the prosecuting Crown. Whether or not the targeted record is subject to a
reasonable expectation of privacy is one of the questions that must be
determined at the hearing of an O’Connor application. For that
pragmatic reason alone, the operation of the common law production regime
cannot be premised on the existence of a reasonable expectation of privacy.
[12] Second,
to the extent that the decision in the court below suggests that there can be
no expectation of privacy in the contents of a criminal investigation file, it
is in error. As this Court stated in R. v. Mills, [1999] 3 S.C.R. 668:
“Privacy is not an all or nothing right. It does not follow from the fact that
the Crown has possession of the records that any reasonable expectation of
privacy disappears” (para. 108). This principle holds equally in respect of
criminal investigation files relating to third party accused that are not in
the possession or control of the prosecuting Crown. There can be no assumption
that criminal investigation files relating to third party accused persons do
not attract an expectation of privacy absent consideration of their particular
contents and other relevant factors. The existence of a reasonable expectation
of privacy and its impact, if any, on a third party’s obligation to produce is
always a contextual, fact-based inquiry. Likewise, no blanket ruling can be
made in respect of privacy interests in police disciplinary records without
regard to their contents.
[13] Third,
to the extent that the operative terms of the production order below may
suggest that records in possession of one Crown entity are deemed to be in the
possession of another, this interpretation should be discarded. The notion
that all state authorities constitute a single indivisible Crown entity for the
purposes of disclosure finds no support in law and, moreover, is unworkable in
practice. Accordingly, Crown entities other than the prosecuting Crown are
third parties under the O’Connor production regime. As I will explain,
however, this does not relieve the prosecuting Crown from its obligation to
make reasonable inquiries of other Crown entities and other third parties, in
appropriate cases, with respect to records and information in their possession
that may be relevant to the case being prosecuted. The Crown and the defence
in a criminal proceeding are not adverse in interest for the purpose of
discovering relevant information that may be of benefit to an accused.
[14] In
addition to clarifying these three uncertainties, this case provides an
appropriate context within which to reiterate the respective obligations of the
police and the Crown to disclose the fruits of the investigation under R. v.
Stinchcombe, [1991] 3 S.C.R. 326, and to consider the extent to which
relevant police disciplinary records and third party criminal investigation
files should form part of this “first party” disclosure package. The Crown’s
obligation to disclose all relevant information in its possession to an accused
is well established at common law and is now constitutionally entrenched in the
right to full answer and defence under s. 7 of the Canadian Charter of
Rights and Freedoms . The necessary corollary to the Crown’s disclosure
duty under Stinchcombe is the obligation of police (or other
investigating state authority) to disclose to the Crown all material pertaining
to its investigation of the accused. For the purposes of fulfilling this
corollary obligation, the investigating police force, although distinct and
independent from the Crown at law, is not a third party. Rather, it acts on
the same first party footing as the Crown.
[15] As I
will explain, records relating to findings of serious misconduct by police
officers involved in the investigation against the accused properly fall within
the scope of the “first party” disclosure package due to the Crown, where the
police misconduct is either related to the investigation, or the finding of
misconduct could reasonably impact on the case against the accused. The Crown,
in turn, must provide disclosure to the accused in accordance with its
obligations under Stinchcombe. Production of disciplinary records and
criminal investigation files in the possession of the police that do not fall
within the scope of this first party disclosure package is governed by the O’Connor
regime for third party production.
[16] I will
first review the respective obligations of the Crown and the police to disclose
the fruits of the investigation against the accused.
4. The Stinchcombe Duty to Disclose
the Fruits of the Investigation
[17] The
Crown’s obligation to disclose all relevant information in its possession
relating to the investigation against an accused is well established. The
duty is triggered upon request and does not require an application to the
court. Stinchcombe made clear that relevant information in the first
party production context includes not only information related to those matters
the Crown intends to adduce in evidence against the accused, but also any
information in respect of which there is a reasonable possibility that it may
assist the accused in the exercise of the right to make full answer and defence
(pp. 343-44). The Crown’s obligation survives the trial and, in the appellate
context, the scope of relevant information therefore includes any information
in respect of which there is a reasonable possibility that it may assist the
appellant in prosecuting an appeal.
[18] While
the Stinchcombe automatic disclosure obligation is not absolute, it
admits of few exceptions. Unless the information is clearly irrelevant,
privileged, or its disclosure is otherwise governed by law, the Crown must
disclose to the accused all material in its possession. The Crown retains
discretion as to the manner and timing of disclosure where the circumstances
are such that disclosure in the usual course may result in harm to anyone or
prejudice to the public interest. The Crown’s exercise of discretion in
fulfilling its obligation to disclose is reviewable by a court.
[19] As
this Court confirmed in Mills, the Crown’s obligation under Stinchcombe
to disclose the fruits of the investigation does not signify that no
residual privacy interest can exist in the contents of the Crown’s file. It
should come as no surprise that any number of persons and entities may have a
residual privacy interest in material gathered in the course of a criminal
investigation. Criminal investigative files may contain highly sensitive
material including: outlines of unproven allegations; statements of
complainants or witnesses — at times concerning very personal matters; personal
addresses and phone numbers; photographs; medical reports; bank statements;
search warrant information; surveillance reports; communications intercepted by
wiretap; scientific evidence including DNA information; criminal records, etc.
The privacy legislation of all 10 provinces addresses the disclosure of information
contained in law enforcement files. See Freedom of Information and
Protection of Privacy Act, R.S.O. 1990, c. F.31, s. 14; Access to
Information and Protection of Privacy Act, S.N.L. 2002, c. A-1.1, s. 22; Freedom
of Information and Protection of Privacy Act, S.N.S. 1993, c. 5, s.
15; Freedom of Information and Protection of Privacy Act, R.S.P.E.I.
1988, c. F-15.01, s. 18; Right to Information Act, S.N.B. 1978, c.
R-10.3, ss. 6(a) and 6(f); An Act respecting Access to
Documents Held by Public Bodies and the Protection of Personal Information,
R.S.Q., c. A-2.1, s. 28; The Freedom of Information and Protection of
Privacy Act, S.M. 1997, c. 50, s. 25; The Freedom of Information and
Protection of Privacy Act, S.S. 1990-91, c. F-22.01, s. 15; Freedom of
Information and Protection of Privacy Act, R.S.A. 2000, c. F-25, s. 20; Freedom
of Information and Protection of Privacy Act, R.S.B.C. 1996, c. 165, s.
15. See also the federal Privacy Act, R.S.C. 1985, c. P‑21, s.
22 .
[20] Implicit
in the Crown’s broad duty to disclose the contents of its file under Stinchcombe
are not the absence of any residual expectation of privacy, but rather the
following two assumptions. The first is that the material in possession of the
prosecuting Crown is relevant to the accused’s case. Otherwise, the Crown
would not have obtained possession of it (O’Connor, at para. 12). The
second assumption is that this material will likely comprise the case against
the accused. As a result, the accused’s interest in obtaining disclosure of
all relevant material in the Crown’s possession for the purpose of making full
answer and defence will, as a general rule, outweigh any residual privacy
interest held by third parties in the material. These two assumptions explain
why the onus is on the Crown to justify the non-disclosure of any material in
its possession.
[21] Although
the common law regime of disclosure under Stinchcombe generally strikes
the appropriate balance between the accused’s right to make full answer and
defence and the residual privacy interests of other persons in the fruits of
the investigation, it is not the only regime that meets constitutional
standards. As this Court concluded in Mills, it was open to Parliament
to enact, as it did, a statutory regime for the disclosure of records
containing personal information of complainants and witnesses in proceedings
for sexual offences under ss. 278.1 to 278.91 of the Criminal Code,
R.S.C. 1985, c. C-46 (commonly referred to as the “Mills regime”).
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. As we shall see, the Mills regime
is also different from the common law regime for production of third party
records under O’Connor. It is nonetheless constitutional (Mills,
at para. 59).
[22] The Stinchcombe
regime of disclosure extends only to material in the possession or control
of the Crown. The law cannot impose an obligation on the Crown to disclose
material which it does not have or cannot obtain: R. v. Stinchcombe,
[1995] 1 S.C.R. 754. A question then arises as to whether the “Crown”, for
disclosure purposes, encompasses other state authorities. The notion that all
state authorities amount to a single “Crown” entity for the purposes of
disclosure and production must be quickly rejected. It finds no support in law
and, given our multi‑tiered system of governance and the realities of
Canada’s geography, is unworkable in practice. As aptly explained in R. v.
Gingras (1992), 120 A.R. 300 (C.A.), at para. 14:
If that line of reasoning were correct, then in order to meet the tests
in Stinchcombe, some months before trial every Crown prosecutor would
have to inquire of every department of the Provincial Government and every
department of the Federal Government. He would have to ask each whether they
had in their possession any records touching each prosecution upcoming. It
would be impossible to carry out 1% of that task. It would take many years to
bring every case to trial if that were required.
Accordingly, the
Stinchcombe disclosure regime only extends to material relating to the
accused’s case in the possession or control of the prosecuting Crown entity.
This material is commonly referred to as the “fruits of the investigation”.
[23] Under
our Canadian system of law enforcement, the general duty to investigate crime
falls on the police, not the Crown. The fruits of the investigation against an
accused person, therefore, will generally have been gathered, and any resulting
criminal charge laid, by the police. While the roles of the Crown and the
police are separate and distinct, the police have a duty to participate in
prosecutions: see, for example, s. 42(1)(e) of the Ontario Police Services
Act. Of particular relevance here is the police’s duty to participate in
the disclosure process. The means by which the Crown comes to be in possession
of the fruits of the investigation lies in the corollary duty of police
investigators to disclose to the Crown all relevant material in their
possession. The police’s obligation to disclose all material pertaining to the
investigation of an accused to the prosecuting Crown was recognized long before
Stinchcombe. The state of the law was well summed up by the Honourable
G. Arthur Martin, Q.C., in his Report of the Attorney General’s Advisory
Committee on Charge Screening, Disclosure, and Resolution Discussions
(1993) (“Martin Report”), at pp. 167-68:
It is well settled and accepted by all, including the
police, that the police, although operating independently of Crown counsel,
have a duty to disclose to Crown counsel all relevant information uncovered
during the investigation of a crime, including information which assists the
accused. . . . As one commentator has observed, “the duty of the police to
disclose relevant information about a case, to the Crown, is a duty that
existed before [Stinchcombe, supra]”.
[24] The
corollary duty of the police to disclose to the Crown the fruits of the
investigation is now well recognized in the appellate jurisprudence. See R.
v. Jack (1992), 70 C.C.C. (3d) 67 (Man. C.A.), at p. 94; R. v. T.
(L.A.) (1993), 14 O.R. (3d) 378 (C.A.), at p. 382; R. v. Gagné (1998),
131 C.C.C. (3d) 444 (Que. C.A.), at p. 455; and Driskell v. Dangerfield,
2008 MBCA 60, [2008] 6 W.W.R. 615, at para. 17. It is also widely acknowledged
that the Crown cannot explain a failure to disclose relevant material on the
basis that the investigating police force failed to disclose it to the Crown.
See R. v. MacPherson (1991), 105 N.S.R. (2d) 123 (S.C.), at paras.
37-38; R. v. Oliver (1995), 143 N.S.R. (2d) 134 (S.C.), at para. 36; R.
v. Campbell, [1992] N.S.J. No. 702 (QL) (Prov. Ct.), at paras. 16-17.
[25] Even
though, in this narrow sense, the police and the Crown may be viewed as one
entity for disclosure purposes, the two are unquestionably separate and
independent entities, both in fact and in law. Hence, production of criminal
investigation files involving third parties, and that of police disciplinary
records, usually falls to be determined in the context of an O’Connor
application. This is unsurprising because information about third party
accused or police misconduct is not likely to make its way into the Crown’s Stinchcombe
disclosure package unless such information is in some way related to the
accused’s case. I will come back to this point later in discussing the
circumstances in which information about third party misconduct should properly
form part of the police disclosure package to the Crown. First, I will review
the principles governing the production of third party records under the O’Connor
regime.
5. The O’Connor Regime for Production
of Third Party Records
[26] In O’Connor,
this Court was concerned with the manner in which the accused, who was charged
with multiple sexual offences, could obtain production of the therapeutic
records of the complainants from third party custodians. O’Connor has
been overtaken by Parliament’s subsequent enactment of the Mills regime
contained in ss. 278.1 to 278.91 of the Criminal Code for the
disclosure of records containing personal information of complainants and
witnesses in sexual assault proceedings. In respect of any other criminal proceeding,
however, the O’Connor application provides the accused with a mechanism
for accessing third party records that fall beyond the reach of the Stinchcombe
first party disclosure regime.
[27] Stated
briefly, the procedure to be followed on an O’Connor application is
the following:
(1) The accused first obtains a subpoena
duces tecum under ss. 698(1) and 700(1) of the Criminal Code and
serves it on the third party record holder. The subpoena compels the person to
whom it is directed to attend court with the targeted records or materials.
(2) The accused also brings an
application, supported by appropriate affidavit evidence, showing that the
records sought are likely to be relevant in his or her trial. Notice of the
application is given to the prosecuting Crown, the person who is the subject of
the records and any other person who may have a privacy interest in the records
targeted for production.
(3) The O’Connor application is
brought before the judge seized with the trial, although it may be heard before
the trial commences. If production is unopposed, of course, the application
for production becomes moot and there is no need for a hearing.
(4) If the record holder or some other
interested person advances a well-founded claim that the targeted documents are
privileged, in all but the rarest cases where the accused’s innocence is at
stake, the existence of privilege will effectively bar the accused’s
application for production of the targeted documents, regardless of their
relevance. Issues of privilege are therefore best resolved at the outset of
the O’Connor process.
(5) Where privilege is not in question,
the judge determines whether production should be compelled in accordance with
the two-stage test established in O’Connor. At the first stage, if
satisfied that the record is likely relevant to the proceeding against the
accused, the judge may order production of the record for the court’s inspection.
At the next stage, with the records in hand, the judge determines whether, and
to what extent, production should be ordered to the accused.
The question of
privilege is beyond the scope of this appeal. However, I will elaborate on
each stage of the O’Connor test for production of third party records in
turn.
5.1 First Stage: Screening for Likely
Relevance
5.1.1 Burden Is on the Applicant
[28] The
first step in any contested application for production of non-privileged
documents in the possession of a third party is for the person seeking
production — in this case the accused — to satisfy the court that the documents
are likely relevant to the proceedings. This threshold burden simply reflects
the fact that the context in which third party records are sought is different
from the context of first party disclosure. We have already seen that the
presumptive duty on Crown counsel to disclose the fruits of the investigation
in their possession under Stinchcombe is premised on the assumptions
that the information is relevant and that it will likely comprise the case
against the accused. No such assumptions can be made in respect of documents
in the hands of a third party who is a stranger to the litigation. The
applicant must therefore justify to the court the use of state power to compel
their production — hence the initial onus on the person seeking production to
show “likely relevance”. In addition, it is important for the effective
administration of justice that criminal trials remain focussed on the issues to
be tried and that scarce judicial resources not be squandered in “fishing
expeditions” for irrelevant evidence. The likely relevance threshold reflects
this gate-keeper function.
5.1.2 Burden on Applicant Is Significant but
not Onerous
[29] It is
important to repeat here, as this Court emphasized in O’Connor, that
while the likely relevance threshold is “a significant burden, it should not be
interpreted as an onerous burden upon the accused” (para. 24). On the one
hand, the likely relevance threshold is “significant” because the court must
play a meaningful role in screening applications “to prevent the defence from
engaging in ‘speculative, fanciful, disruptive, unmeritorious, obstructive and
time-consuming’ requests for production” (O’Connor, at para. 24, quoting
from R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 32). The importance
of preventing unnecessary applications for production from consuming scarce
judicial resources cannot be overstated; however, the undue protraction of
criminal proceedings remains a pressing concern, more than a decade after O’Connor.
On the other hand, the relevance threshold should not, and indeed cannot,
be an onerous test to meet because accused persons cannot be required, as a
condition to accessing information that may assist in making full answer and
defence, “to demonstrate the specific use to which they might put information
which they have not even seen” (O’Connor, at para. 25, quoting from R.
v. Durette, [1994] 1 S.C.R. 469, at p. 499).
5.1.3 O’Connor Common Law
Threshold Is Significantly Different From Mills Statutory Regime
[30] It is
important to note that the common law likely relevance threshold in O’Connor
differs significantly from the statutory likely relevance threshold set by
Parliament for the production of records containing personal information in
sexual assault proceedings under the Mills regime (see s. 278.3(4) of
the Criminal Code ). As this Court explained at some length in Mills,
a range of permissible regimes can meet constitutional standards. It was
therefore open to Parliament to craft its own solution to address the
particular concerns arising from disclosure of third party records in sexual
proceedings. In doing so, Parliament “sought to recognize the prevalence of
sexual violence against women and children and its disadvantageous impact on
their rights, . . . and to reconcile fairness to complainants with the
rights of the accused” (Mills, at para. 59). The following
differences between the two regimes are particularly noteworthy.
[31] First,
the likely relevance standard adopted by Parliament under the Mills
regime is tailored to counter speculative myths, stereotypes and generalized
assumptions about sexual assault victims and about the usefulness of private
records in sexual assault proceedings. Such generalized views need not be
countered at large in respect of all third party records that fall outside the Mills
regime. The general common law threshold of likely relevance under O’Connor
is intended rather to screen applications to ensure the proper use of state
authority in compelling production of third party records and to establish the
appropriateness of the application so as to avoid squandering scarce judicial
resources.
[32] Second,
while the Mills regime retains the two-stage framework set out in O’Connor,
it differs significantly in that much of the balancing of the competing
interests is effected at the first stage in determining whether production
should be made to the court for inspection. This reflects Parliament’s
assumption that a reasonable expectation of privacy exists in the types of
records targeted by the statutory regime: see R. v. Clifford (2002),
163 C.C.C. (3d) 3 (Ont. C.A.), at paras. 48-49. An equivalent presumption of
privacy does not attach in respect of all third party records that fall outside
the Mills regime. Hence, any balancing of competing interests is
reserved for the second stage of the O’Connor regime, when the documents
can be inspected by the court to better ascertain the nature of the privacy
interest, if any. Because of these significant differences, it is important
not to transpose the Mills regime into the O’Connor production
hearing in respect of documents to which the statutory dispositions do not
apply.
5.1.4 Likely Relevance Under the Common Law
Regime
[33] “Likely
relevant” under the common law O’Connor regime means that there is “a
reasonable possibility that the information is logically probative to an issue
at trial or the competence of a witness to testify” (O’Connor, at para.
22 (emphasis deleted)). An “issue at trial” here includes not only material
issues concerning the unfolding of the events which form the subject matter of
the proceedings, but also “evidence relating to the credibility of witnesses
and to the reliability of other evidence in the case” (O’Connor, at
para. 22). At this stage of the proceedings, the court cannot insist on a
demonstration of the precise manner in which the targeted documents could be
used at trial. The imposition of such a stringent threshold burden would put
the accused, who has not seen the documents, in an impossible Catch-22
position.
5.2 Second Stage: Balancing the Interests
at Play
[34] If
likely relevance is demonstrated by the applicant, the third party record
holder may be ordered to produce the documents for inspection by the court in
order to determine whether production should be ordered to the accused.
[35] In O’Connor,
this Court provided the following list of factors for consideration in
determining whether or not to order production to the accused (at
para. 31):
. . . “(1) the extent to which the record is
necessary for the accused to make full answer and defence; (2) the probative value
of the record in question; (3) the nature and extent of the reasonable
expectation of privacy vested in that record; (4) whether production of the
record would be premised upon any discriminatory belief or bias” and “(5) the
potential prejudice to the complainant’s dignity, privacy or security of the
person that would be occasioned by production of the record in question” . . .
.
The factors set
out in O’Connor should not be applied mechanically. It should be kept
in mind that O’Connor involved the production of the complainant’s
private records in proceedings for a sexual offence, an area of law
subsequently overtaken by Parliament’s enactment of the Mills regime.
Some of the factors listed in O’Connor, in particular items 4 and 5 above,
were obviously tailored to meet the exigencies in sexual assault proceedings
and, consequently, are unlikely to be of assistance in other contexts.
Ultimately, what is required at this second stage of the common law regime is a
balancing of the competing interests at stake in the particular circumstances
of the case. No exhaustive list can be crafted to suit every situation;
however, I will elaborate somewhat on the balancing process.
5.2.1 A Useful Starting Point: Assessing True
Relevance
[36] As we
have seen, by the time the court embarks on the second stage of an O’Connor
hearing, the application has been screened for likely relevance and the judge
is satisfied that compelling the production of the documents for inspection by
the court is warranted in the circumstances. Once the documents are before the
court, the final question to be determined is whether production should be made
to the accused.
[37] The amicus
curiae submits that the starting point for determining whether to order
production to the accused of documents in the hands of third parties,
including, as in this case, Crown briefs, police briefs and police disciplinary
files, requires a determination of the nature of the records to define the
existence or absence of a reasonable expectation of privacy (factum, at para.
19). There is some merit to the proposal of looking first at whether there is
any expectation of privacy in the targeted records. Indeed, if it is clear
upon inspection of the documents and their contents that there is no basis upon
which the third party record holder or any other interested person could claim
a reasonable privacy interest, there is no balancing of interests left to
perform. Given that likely relevance has by this point been established, the
sole remaining interest at stake is the accused’s right to make full answer and
defence. A production order should therefore issue. It is in this sense that
the Court of Appeal’s finding in the present case, that an “O’Connor-type
procedure” is only required in cases where the third party records attract a
reasonable expectation of privacy, must be understood.
[38] The
difficulty with this approach, however, is that it is largely premised on the
conclusion that the existence of a reasonable expectation of privacy may be
determined solely by characterizing the type of record at issue. While
this may be possible in respect of some records, determining whether an
expectation of privacy attaches to a particular record usually requires a more
contextual approach. As we have seen, even in the context of the Crown’s Stinchcombe
obligation of disclosure, there exists no presumption that all expectations of
privacy are lost just because a record has found its way into the prosecuting
Crown’s file.
[39] The amicus
curiae submits, and I agree, that determining the existence of a reasonable
expectation of privacy requires a contextual assessment having regard to
numerous factors, including but not limited to: how the record was created;
who created the record; the purpose of the record; the context of the case in
which the record would be used; who holds the privacy interest; how the record
was obtained by the Crown or police; the presence or absence of waiver; any
applicable legislation; and whether the privacy interest extends to all or part
of the record. As one can readily appreciate from this non-exhaustive list,
determining whether there is any residual expectation of privacy in a document
may be a complex and time-consuming exercise that has the potential to
significantly delay and detract from the actual proceeding before the court — the
trial of the accused. For that reason, it is my view that in most cases, a
more useful starting point for courts in balancing competing interests at the
second stage of an O’Connor application will be to assess the true
relevancy of the targeted record in the case against the accused. This
approach allows the court to remain focussed on the trial of the accused and,
given the competing interests at stake, the relevancy assessment will usually
be largely determinative of the production issue. I will explain.
[40] On the
one hand, because the accused will not have seen the documents that he or she
seeks to have produced, it may be readily apparent upon inspection by the
court that the claim of likely relevance established at the first stage of the O’Connor
application is simply not borne out. If the court is satisfied that the
documents are clearly irrelevant, there is no basis for compelling
production to the accused, and the application can be summarily dismissed.
[41] On the
other hand, if the claim of likely relevance is borne out upon inspection, the
accused’s right to make full answer and defence will, with few exceptions, tip
the balance in favour of allowing the application for production. Recall that
at this stage of the proceedings, the court has confirmed that the production
application concerns non-privileged documents. The existence of any privacy interest
in third party records relevant to an accused’s defence of a criminal charge
may well warrant, in appropriate circumstances, some redactions or the
imposition of conditions to ensure that no unnecessary invasion of privacy
follows from production to the accused. However, absent an overriding statutory
regime governing the production of the record in question, a third party
privacy interest is unlikely to defeat an application for production.
[42] Once a
court has ascertained upon inspection that third party records are indeed
relevant to the accused’s case, in the sense that they pertain to an issue in
the trial as described above, the second stage balancing exercise is easily
performed. In effect, a finding of true relevance puts the third party records
in the same category for disclosure purposes as the fruits of the investigation
against the accused in the hands of the prosecuting Crown under Stinchcombe.
It may be useful to pose the question in this way: If the third party record in
question had found its way into the Crown prosecutor’s file, would there be any
basis under the first party Stinchcombe disclosure regime for not
disclosing it to the accused? If the answer to that question is no, there can
be no principled reason to arrive at a different outcome on the third party
production application. As we have seen, the Crown’s obligation under Stinchcombe
to disclose to the accused the fruits of the investigation in its
possession does not signify that no residual privacy interest exists in the
contents of the file. However, it does mean that, with few exceptions
(including the Mills statutory scheme), the accused’s right to access
information necessary to make full answer and defence will outweigh any
competing privacy interest. The same applies with respect to relevant material
in the hands of third parties. This is particularly so in respect of criminal
investigation files concerning third party accused. 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.
(David M. Paciocco, “Filling the Seam between Stinchcombe and O’Connor:
The ‘McNeil’ Disclosure Application” (2007), 53 Crim. L.Q. 161,
at pp. 199-200)
5.2.2 Guarding Against Unnecessary Intrusions
Into Privacy Interests
[43] That
is not to say, however, that residual privacy interests in the contents of
criminal investigation files should be disregarded. As concluded in the Martin
Report, at p. 181 (reference in Attorney General of Ontario’s factum, at para.
24):
The privacy of the victim and any other witnesses
must yield to preparing a full answer and defence. But it need not yield any
further. The Committee considers that, provided the making of full answer and
defence is not impaired, it is desirable to permit limitations on the use of
disclosure materials that recognize the privacy interests of victims and
witnesses.
[44] The
same applies in respect of police disciplinary records, or any other third
party records. The court should ensure that a production order is properly
tailored to meet the exigencies of the case but do no more. As we have seen,
likely relevance for disclosure purposes has a wide and generous connotation
and includes information in respect of which there is a reasonable possibility
that it may assist the accused in the exercise of the right to make full answer
and defence. In considering the ambit of the information that can assist in
the trial, regard must be given to the particular issues in the case and to the
governing rules of evidence and procedure. This does not mean that only
material that would be admissible at trial should be produced. Material that
would not, on its own, be admissible may nonetheless be of use to the defence,
for example, in cross-examining a witness on matters of credibility or in
pursuing other avenues of investigation. An O’Connor application must,
however, lay a foundation for the relevance of the material sought, having
regard to the issues in the case. In large part, this is the reason why such
applications should be brought before the judge seized with the trial. Doing
so allows production issues to be effectively disposed of by the judge and
counsel who are sufficiently appraised of the issues in the case. Of course,
production applications can be heard prior to the commencement of the trial,
and the judge, when appropriate to do so, may enlist the assistance of counsel
in determining the relevance of a particular record for the purposes of
production.
[45] Ascertaining
the true relevancy of records targeted for production may become particularly
important when the information on the production application concerns police
disciplinary records. The contentious nature of police work often leads to
public complaints, some legitimate and others spurious. Police disciplinary
proceedings may also relate to employment issues or other matters that have no
bearing on the case against the accused. The risk in this context is that disclosure,
and by extension trial proceedings, may be sidetracked by irrelevant
allegations or findings of police misconduct. Disclosure is intended to assist
an accused in making full answer and defence or in prosecuting an appeal, not
turn criminal trials into a conglomeration of satellite hearings on collateral
matters.
[46] Hence,
to ensure that only relevant material is produced and that no unwarranted
invasion of privacy interests occurs, the court may find it necessary to make
a production order subject to redactions or other conditions. In addition,
when just and appropriate to do so, the court may well impose restrictions on
the dissemination of the information produced for purposes unrelated to the
accused’s full answer and defence or prosecution of an appeal: see, for
example, recommendations 34 and 35 in the Martin Report (at p. 179) and P.
(D.) v. Wagg (2004), 239 D.L.R. (4th) 501 (Ont. C.A.), at para. 46.
Absent unusual circumstances, however, the crafting of a production order
should not necessitate any detailed inquiry into the precise nature or extent
of the privacy interest in question. The O’Connor hearing should remain
focussed on the criminal proceeding at hand.
6. Bridging the Gap Between First Party
Disclosure and Third Party Production
[47] As the
preceding discussion makes clear, once the true relevance of the targeted
records has been ascertained on an O’Connor application for production
of third party records, the ultimate question of production is essentially
governed by the same principles that apply to the disclosure of material in the
possession of the Crown under Stinchcombe. To the accused, however, the
distinction between these two regimes is significant. While the accused will
receive automatic disclosure of relevant material that finds its way into the
hands of the prosecuting Crown, accessing relevant material in the hands of
third parties will often be more happenstance. To a certain extent, that is
inevitable. Third parties are under no obligation to come forth with relevant
information to assist the accused in his defence. However, the prosecuting
Crown and the investigating police force are in a different position and can
assist in bridging the gap between first party disclosure and third party
production. I will deal firstly with the Crown.
6.1 Crown Counsel’s Duty to Inquire
[48] As
stated earlier, the suggestion that all state authorities constitute a single
entity is untenable and unworkable. In order to fulfill its Stinchcombe
disclosure obligation, the prosecuting Crown does not have to inquire of every
department of the provincial government, every department of the federal
government and every police force whether they are in possession of material
relevant to the accused’s case. However, this does not mean that, regardless
of the circumstances, the Crown is simply a passive recipient of relevant
information with no obligation of its own to seek out and obtain relevant
material.
[49] The
Crown is not an ordinary litigant. As a minister of justice, the Crown’s
undivided loyalty is to the proper administration of justice. As such, 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 to do so. Ryan J.A. in R. v.
Arsenault (1994), 153 N.B.R. (2d) 81 (C.A.), aptly described the Crown’s
obligation to make reasonable inquiries of other Crown agencies or
departments. He stated as follows:
When disclosure is demanded or requested, Crown counsel have a duty to
make reasonable inquiries of other Crown agencies or departments that could
reasonably be considered to be in possession of evidence. Counsel cannot be
excused for any failure to make reasonable inquiries when to the knowledge of
the prosecutor or the police there has been another Crown agency involved in
the investigation. Relevancy cannot be left to be determined by the
uninitiated. If Crown counsel is denied access to another agency’s file, then
this should be disclosed to the defence so that the defence may pursue whatever
course is deemed to be in the best interests of the accused. This also applies
to cases where the accused or defendant, as the case may be, is unrepresented .
. . . [para. 15]
[50] 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. As the amicus curiae rightly states, “[t]he Crown and the defence
are not adverse in interest in discovering the existence of an unreliable or
unethical police officer” (factum, at para. 62). Doherty J.A. made the
point forcefully in R. v. Ahluwalia (2000), 138 O.A.C. 154, commenting
on the Crown’s failure to inquire further when confronted with the perjury of
its own witness as follows (at paras. 71-72):
For reasons not shared with this court, the Crown does not appear to
have regarded itself as under any obligation to get to the bottom of this
matter. . . .
The Crown has obligations to the administration of
justice that do not burden other litigants. Faced with its own witness’s
perjury and the fact that the perjured evidence coincided with the incomplete
disclosure that the Crown says it innocently passed to the defence, the Crown
was obliged to take all reasonable steps to find out what had happened and to
share the results of those inquiries with the defence. In my view, the Crown
did not fulfill its obligations to the administration of justice by
acknowledging the incomplete disclosure discovered by the defence, and after
making limited inquiries, professing neither a responsibility for the
incomplete disclosure nor an ability to provide any explanation for it. The
Crown owed both the appellant and the court a fuller explanation than it chose
to provide.
[51] Hence,
by properly fulfilling its dual role as an advocate and officer of the court,
Crown counsel can effectively bridge much of the gap between first party
disclosure and third party production. I now turn to the police corollary duty
to participate in the disclosure process.
6.2 The Police’s Corollary Duty to Disclose
Relevant Information
[52] We
have already seen that the police have a corollary duty to disclose to the
prosecuting Crown all material pertaining to the investigation of an accused.
This disclosure obligation accords with police codes of conduct enacted in many
jurisdictions across the country. For example, under s. 2(1)(c)(vi) of the Code
of Conduct found in O. Reg. 123/98, Sch., enacted pursuant to the Ontario Police
Services Act, a police chief or other police officer commits neglect of
duty if he or she “fails to report anything that he or she knows concerning a
criminal or other charge, or fails to disclose any evidence that he or she, or
any person within his or her knowledge, can give for or against any prisoner or
defendant”. See also Code of Professional Conduct Regulation, B.C. Reg.
205/98, s. 5(e); Police Service Regulation, Alta. Reg. 356/90, s.
5(2)(h)(vii); Code of ethics of Québec police officers, (1990) 122 G.O.
II, 1760, s. 7(2); and Code of Professional Conduct Regulation — Police Act,
N.B. Reg. 2007‑81, s. 36(1)(d)(iii).
[53] While
the obligation itself is firmly established, the difficulty lies in identifying
the contours of relevance for the purposes of the police’s first party
disclosure obligation. The particular question that this case exemplifies is
whether information of misconduct by a police officer involved in the case
against the accused should form part of the first party disclosure package
provided to the Crown for its assessment of relevance according to the edicts
of Stinchcombe. Obviously, the accused has no right to automatic
disclosure of every aspect of a police officer’s employment history, or to
police disciplinary matters with no realistic bearing on the case against him
or her. However, where the disciplinary information is relevant, it should
form part of the first party disclosure package, and its discovery should not
be left to happenstance.
[54] When
the police misconduct in question concerns the same incident that forms the
subject-matter of the charge against the accused, the police duty to disclose
information concerning police disciplinary action taken in respect of that
misconduct is rather self-evident. To state an obvious example, if a police
officer is charged under the applicable provincial legislation for excessive use
of force in relation to the accused’s arrest, this information must be
disclosed to the Crown. Where the misconduct of a police witness is not
directly related to the investigation against the accused, it may nonetheless
be relevant to the accused’s case, in which case it should also be disclosed.
For example, no one would question that the criminal record for perjury of a
civilian material witness would be of relevance to the accused and should form
part of the first party disclosure package. In the same way, findings of
police misconduct by a police officer involved in the case against the accused
that may have a bearing on the case against an accused should be disclosed.
[55] The
need for guidance in this area prompted a review commissioned by the Chief of
the Toronto Police Service. The review was conducted by the Honourable George
Ferguson, Q.C., and culminated in his January 2003 report entitled Review
and Recommendations Concerning Various Aspects of Police Misconduct, vol. I
(the “Ferguson Report”). The terms of reference included the mandate to review
“when, in what manner and under what circumstances does the Police Service have
an obligation to bring to the attention of the Crown, alleged or proven acts of
misconduct of a police officer who will be a witness or was otherwise involved
in an investigation that has led to a criminal proceeding” (p. 1).
[56] The
Ferguson Report noted that the question of disclosure of such information was
usually left to be determined in the context of an O’Connor application
for third party production and that this often gave rise to a “Catch-22”
problem, stating as follows (at p. 12):
Once into O’Connor, it is difficult, if not impossible, for the
defence to meet the threshold required to access the records. Unless the
officer is notorious or the defence personally knows details of the officer’s
files, the defence will be found to be on nothing more than a fishing
expedition and access will be denied. A diligent officer‑in‑charge
will not likely know the full employment history of each police witness, and,
currently, is not required to make any inquiries. Short of a criminal
conviction for dishonesty, nothing is likely to be provided to the Crown for
disclosure analysis. Even convictions for dishonesty may not always be
revealed. This is clearly unsatisfactory.
[57] The
Ferguson Report concluded that leaving the entire question of access to police
disciplinary records to be determined under the O’Connor regime for
third party production “is neither efficient nor justified” (p. 15). In order
to assist in bridging the gap between first party disclosure and third party
production, the Ferguson Report made a number of recommendations, including the
automatic disclosure by the police upon request by the Crown of the following
information regarding acts of misconduct by a member of the Toronto Police
Service who may be a witness or who was otherwise involved in a case before the
court (at p. 17):
a. Any conviction or finding of guil[t] under the Canadian
Criminal Code or under the Controlled Drugs and Substances Act [for
which a pardon has not been granted].
b. Any outstanding charges under the Canadian Criminal Code
or the Controlled Drugs and Substances Act .
c. Any conviction or finding of guilt under any other federal or
provincial statute.
d. Any finding of guilt for misconduct after a hearing under the Police
Services Act or its predecessor Act.
e. Any current charge of misconduct under the Police
Services Act for which a Notice of Hearing has been issued.
[58] The
Ferguson Report recommended that upon receiving this information from police,
the Crown act as “gate-keeper”, sorting out what parts of this material, if
any, should be turned over to the defence in compliance with the Crown’s Stinchcombe
obligation of disclosure. The Ferguson Report made the further
recommendation that any concerned officer who was the subject of disciplinary
records produced to the Crown be notified in writing and be given the
opportunity to make submissions to the Crown.
[59] I
agree that it is “neither efficient nor justified” to leave the entire question
of access to police misconduct records to be determined in the context of the O’Connor
regime for third party production. Indeed, as discussed earlier, the
disclosure of relevant material, whether it be for or against an accused, is
part of the police corollary duty to participate in the disclosure process.
Where the information is obviously relevant to the accused’s case, it should
form part of the first party disclosure package to the Crown without
prompting. For example, as was the case here, if an officer comes under
investigation for serious drug-related misconduct, it becomes incumbent upon
the police force, in fulfilment of its corollary duty of disclosure to the
Crown, to look into those criminal cases in which the officer is involved and
to take appropriate action. Of course, not every finding of police misconduct
by an officer involved in the investigation will be of relevance to an accused’s
case. The officer may have played a peripheral role in the investigation, or
the misconduct in question may have no realistic bearing on the credibility or
reliability of the officer’s evidence. The kinds of information listed in the
Ferguson Report can provide useful guidance on those types of matters in
respect of which a police force may well be advised to seek the advice of Crown
counsel.
[60] With
respect to records concerning police disciplinary matters that do not fall
within the scope of first party disclosure obligations, procedures such as
those recommended in the Ferguson Report, tailored to suit the particular needs
of the community in which they are implemented, can go a long way towards
ensuring a more efficient streamlining of O’Connor applications for
third party production. Trial courts seized with motions for disclosure under Stinchcombe
or applications for third party production are well placed to make
appropriate orders to foster the necessary cooperation between police, the
Crown and defence counsel.
7. Disposition
[61] The
appeal is allowed and the order in the court below is set aside. The
application having become moot, the Court makes no further order.
Appeal allowed.
Solicitor for the appellant: Attorney General of Ontario,
Toronto.
Solicitor for the respondent Her Majesty the Queen: Public
Prosecution Service of Canada, Halifax.
Solicitors for the respondent the Chief of Barrie Police Service, 3rd
Party Record Holder: Caswell & Watson, Toronto.
Solicitor for the intervener the Attorney General of
Alberta: Attorney General of Alberta, Edmonton.
Solicitor for the intervener Matthew Marshall: Gary R.
Clewley, Toronto.
Solicitors for the intervener the Police Association of
Ontario: Paliare Roland Rosenberg Rothstein, Toronto.
Solicitors for the intervener the Criminal Lawyers’ Association
(Ontario): McCarthy Tétrault, Toronto.
Solicitors for the amicus curiae: Henein & Associates,
Toronto.
Bastarache J. took
no part in the judgment.