R. v. Quesnelle 2014 SCC 46 – this decision was just handed down today by the Supreme Court of Canada. The respondent, Vincent Quesnelle, was charged with sexually assaulting two complainants, T.R. and L.I. Prior to trial, CBC Radio aired a documentary about the complainant T.R. (a street sex worker), during which the lead investigator in this case indicated that she had obtained and reviewed four or five police occurrence reports which involved T.R. but were not made in the course of the investigation that resulted in the charges against the accused. The detective did not include the reports in the investigatory file.
Before trial, the accused made an application seeking disclosure of certain police occurrence reports which involved a complainant, but which were not made in the course of the investigation of the charges against him. The trial judge ruled that the occurrence reports at issue were “records” under the Mills regime, specifically s. 278.1 of the Criminal Code . As such, the accused applied for disclosure of the occurrence reports pursuant to s. 278.3 of the Code. The trial judge dismissed the application and the accused was ultimately convicted. The Ontario Court of Appeal allowed the accused’s appeal on the basis that the police occurrence reports were not “records” under the Mills regime and should have been part of regular Crown disclosure under R. v. Stinchcombe,  3 S.C.R. 326. The Court of Appeal therefore ordered a new trial and the matter was appealed to the SCC.
In sexual offence cases, the Criminal Code limits the disclosure of private records relating to complainants and witnesses. The relevant provisions, ss. 278.1to 278.91 , known as the Mills regime, permit disclosure only where a record is likely relevant and its disclosure is necessary in the interests of justice. The regime applies to “records” that contain personal information for which there is a reasonable expectation of privacy, unless they are made by persons responsible for the investigation or prosecution of the offence. The issue on appeal was whether these provisions apply to police occurrence reports prepared in the investigation of previous incidents involving a complainant or witness and not the offence being prosecuted. The question was whether these unrelated police occurrence reports count as “records” as defined in s. 278.1 , such that the statutory disclosure limits apply.
The Mills regime establishes a two-part process through which accused persons may apply for disclosure of such records. First, a record ― whether in the hands of the Crown, the police, or a third party (s. 278.2(2)) ― will only be produced to the court where the trial judge is satisfied that the record is likely relevant to an issue at trial or to the competence of a witness to testify, and that disclosure to the court is necessary in the interests of justice: s. 278.5 . Second, after reviewing the record, the judge may only order disclosure to the accused if the record is likely relevant and disclosure is in the interests of justice: s. 278.7 .
The ONCA ruled that 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 and that police occurrence reports do not qualify as “records” for the purposes of s. 278.2, and therefore do not fall within the realm of private records Parliament intended to target in enacting ss. 278.1 to 278.9.
A unanimous SCC disagreed with the ONCA. The SCC concluded that the Mills regime applies to police occurrence reports that are not directly related to the charges against the accused:
“Privacy is not an all or nothing right. Individuals involved in a criminal investigation do not forfeit their privacy interest for all future purposes; they reasonably expect that personal information in police reports will not be disclosed in unrelated matters. Moreover, while the regime exempts investigatory and prosecutorial records, that exemption applies only to records made in relation to the particular offence in question.”
Accordingly, the SCC agreed with the trial judge that the unrelated police occurrence reports at issue were “records” within the definition of s. 278.1and thus subject to the Mills regime. The trial judge was entitled to conclude that the reports should not be disclosed. The SCC allowed the appeal, set aside the order for a new trial, and restored the conviction, and remitted the sentence appeal to the Ontario Court of Appeal.