Warning
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
(a) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant’s sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall
(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and
(b) on application made by the complainant, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
Ontario Court of Justice
Date: 2024 03 12 Court File: Toronto# 22-700002296
Between:
His Majesty the King
— AND —
Mashrul Chowdhury
Ruling on Disclosure Application
Before Justice Brock Jones
Counsel: K. Wong................................................................................................ counsel for the Crown J. Weisz....................................................................................... counsel for Mr. Chowdhury
Introduction
1Mr. Chowdhury is charged with sexual assault stemming from an incident that occurred on November 20, 2021.
2Mr. Weisz brought an application to obtain the records of municipal by-law officers who commenced the initial investigation into the events that culminated in Mr. Chowdhury being charged with sexual assault. He submits these records form part of the Crown’s first-party disclosure obligations and it was incumbent upon the Crown to obtain and produce them.
3Ms. Wong submits that a Mills application is required given the records likely engage the privacy rights of the complainant.
Background Facts and Procedural History
4The complainant, Ms. M.H., alleges she was sexually assaulted by Mr. Chowdhury while he was working as a cab driver and she was his passenger. She and her mother reported the incident that forms the basis of the criminal charges initially to Toronto municipal by-law officers on December 22, 2021. They made several complaints about Mr. Chowdhury’s conduct as a taxi driver that were investigated. These included that he overcharged M.H. and took an unnecessarily long route to bring her to her destination.
5Subsequently, on March 14, 2022, M.H. provided a statement to Toronto Police Service (“TPS”) officers alleging that she had been sexually assaulted by the accused during the cab ride on November 20, 2021. He was charged criminally on March 23, 2022.
6Mr. Chowdhury was notified by the by-law officers about the allegations made against him. Mr. Weisz therefore had the records of the Municipal Licensing and Standards division of the City of Toronto subpoenaed to court for what was originally contemplated to be a third-party records application. He also wrote to the Crown requesting disclosure of any communications between the TPS and the by-law officers about these parallel investigations.
7On December 14, 2023, Chris Alexander attended before me in response to the subpoena. He is a by-law enforcement officer with the city of Toronto. He explained that he, and the other by-law officers in his department, are municipal peace officers. While there had been some communication between himself and the TPS officers in charge of the criminal investigation, no formal request had been made for the records associated with his department’s investigation. If the TPS officers requested those materials, which included records of the initial complaint made against the accused by M.H., he would have voluntarily provided them. No such request was made before his appearance in court.
8Officer Alexander provided a sealed envelope to the court containing all the records produced by his office relating to their investigation into the allegations made by M.H. and her mother regarding the conduct of Mr. Chowdhury. He also included copies of email correspondence between himself and officers with the TPS.
9At that time, Ms. Wong confirmed the Crown did not have possession of these records. They did not form part of the Crown’s case against Mr. Chowdhury. Rather, that case was built upon M.H.’s statements made to the TPS on or after March 14, 2022.
10On February 5, 2024, after reconsidering the matter, Mr. Weisz changed the nature of his application. He submitted the records of the Municipal Officers were first-party disclosure materials and the Crown was obligated to obtain and provide them once placed on notice of their contents and relevance to the investigation. As a result, a third-party records application was not required.
11After hearing from the parties again, I released the records to Ms. Wong for her to review them and determine if the Crown agreed they constituted first-party disclosure. On March 8, 2024, she informed me that her position was the complainant retained a privacy interest in the records and that they should not be considered first-party disclosure. In particular, she brought to my attention that the documents contain “personal information” under the Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56. As a result, they fall within the definition of “record” in section 278.1 of the Criminal Code because they are protected by an Act of a provincial legislature.
First-Party v. Third-Party Disclosure
12When determining which production regime applies the trial court should consider both the nature of the information of which production is sought, and who is in possession or control of that information: see R. v. Jackson, 2015 ONCA 832, at para. 91.
13The Crown has a constitutional obligation to disclose all relevant information in its possession to an accused. In R. v. McNeil, 2009 SCC 3, the Supreme Court of Canada addressed whether the “Crown” for disclosure purposes encompasses other state authorities. The Court held that “the investigating police force, although distinct and independent from the Crown at law, is not a third party”: see para. 14. Accordingly, the Crown does not dispute that all materials in the possession of the TPS related to the investigation of the accused form first-party disclosure, which includes some of the email correspondence between the TPS and the by-law officers.
14What remains in dispute is whether the other materials generated by the municipal by-law officers, as an entirely separate state authority, should also be considered first-party disclosure. While those officers investigated what occurred between M.H. and Mr. Chowdhury based on the information they received, they are not criminal investigators. Ms. Wong therefore argues the municipal by-law officers were not investigating the offence before the court and therefore any records in their possession or control should be deemed third-party records. To accept the defence position would cast the net of first-party disclosure too far and risk compromising the privacy rights of complainants. Rather, a Mills application is required in this case. [1]
15The duty of the Crown to inquire about potentially relevant evidence was considered in R. v. Quesnelle, 2014 SCC 46. The Supreme Court affirmed the principle in McNeil that the Crown cannot merely be a passive recipient of disclosure material. Instead, the Crown has a duty to make reasonable inquiries when put on notice of material in the hands of the police or other Crown entities that is potentially relevant to the prosecution of defence.
16Furthermore, the Crown’s duty to inquire, and the corresponding policy duty to disclose to the prosecuting Crown, applies notwithstanding the Mills regime. In Quesnelle at para. 18, the Supreme Court stated (my emphasis added):
The Crown’s McNeil duty to make reasonable inquiries and the corresponding police duty to supply relevant information and evidence to the Crown apply notwithstanding the Mills regime. 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.
17The Crown’s duty to inquire is therefore triggered when it is informed of potentially relevant evidence: see R. v. Navaratnam, 2021 ONCJ 28, at para. 18. In my view, the relevance of the records at the core of this application has been obvious for several appearances. The records arose out of an investigation by one class of peace officers into the very incident that forms the basis of the criminal charges. In Quesnelle at para. 56 the Supreme Court held that:
Records created in the investigation of the offence are presumptively relevant to an issue at trial and it is in the interests of justice for the case against the accused to be disclosed to the defence. There is no need to consider such records under the second step of Mills because they will always be produced anyway ― the exemption is eminently logical.
18Initially, I was under the impression that while the municipal officers investigated Mr. Chowdhury’s conduct on November 20, 2021, that was confined to disputes about his compliance with the regulations governing a taxi driver, including whether he charged an excessive fare. Ms. Wong informed me on March 8, 2024, that after reviewing the records she learned M.H. gave an additional statement to the municipal officers after the initial report was made by her mother. In that additional statement, M.H. made allegations of sexual abuse. In that sense, while the municipal officers were not necessarily investigating “the offence” itself at first (that is the charge of sexual assault subsequently laid by the TPS), eventually they were provided with information of that nature.
19What the complainant told those officers, or did not tell them, about Mr. Chowdhury’s conduct may be relevant to my assessment of her testimony. It is not in dispute that credibility will be a central issue at the trial.
20In R. v. Gubbins, 2018 SCC 44, the Supreme Court of Canada held that “obviously relevant” material refers to “information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused's ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: see para. 23.
21When put on notice of relevant evidence in the possession of another public investigatory body, the Crown must take reasonable steps to obtain that evidence pursuant to its disclosure obligations: see R. v. Schirmer, 2022 BCCA 214, at para. 54. Several reported decisions have held the Crown has such an obligation and failure to adhere to it can constitute a breach of an accused’s rights under section 7 of the Charter: see, for example, R. v MacGarvie, Nagy and Wilson, 2017 ONSC 2745, at paras. 21-24 (regarding occurrence reports of witnesses contained in a police database); R. v. Clarke, Colpitts and Potter, 2013 NSSC 386, at paras. 19 and 72-73 (regarding documents in the possession of the Nova Scotia Securities Commission); and R. v W.S., 2019 NSPC 54, at para. 39 (regarding the records of a social worker employed by the Nova Scotia Department of Community Services which contained a prior statement of a complainant in a sexual assault case not originally provided to the defence.)
22Ms. Wong relied upon the decision of R. v. K.T., 2020 ONCJ 496. The accused and complainant were both employees of a hospital. K.T. was charged with sexual assault for touching the complainant without her consent in a stairwell. The complainant reported the incident under the hospital’s workplace harassment policy and the hospital retained a lawyer to investigate the allegations.
23The defence argued that the records were not governed by the Mills regime because the documents in question were subject to the exemption contained in section 278.1 of the Criminal Code. That section defines what constitutes a “record”, and expressly excludes “records made by persons responsible for the investigation or prosecution of the offence.” Because the lawyer hired by the hospital conducted an internal investigation into the allegations themselves, which also formed the basis of the criminal charges, K.T. argued that they fell within this exemption.
24Justice Doody disagreed, holding that the determining factor on the issue of whether the exemption applied was the purpose for which the records were created. As the documents in question were not created for the investigation of the offence before the court – that is the criminal charge of sexual assault – the exemption did not apply. The Mills regime applied: see para. 62.
25Ms. Wong therefore argues that since the complainant may have a reasonable expectation of privacy in the records created by the municipal officers, I should similarly conclude that a third-party records application is required. The records at issue do not fall within the exemption contained in section 278.1.
26I find K.T. is distinguishable. Justice Doody also held that the exemption is not limited to records created during the course of a police investigation. Records created by other persons may qualify in an appropriate case: see para. 63.
27In this case, it bears repeating that the complainant first reported her concerns to a municipal by-law enforcement unit which was responsible for investigating the accused’s conduct as the operator of a taxi. It is a public body whose officers are peace officers.
28I agree with Ms. Wong that the Municipal Freedom of Information and Protection of Privacy Act applies and must be considered. However, that statute has an exception that permits one law enforcement agency (the municipal by-law officers) to release otherwise protected information to another law enforcement agency (the Toronto Police Service): see section 32(f). The uncontested evidence of Officer Alexander is that he would have provided the documents to the Toronto Police Service had that request been made.
29Regarding the Crown’s legitimate concerns surrounding any potential reasonable expectation of privacy the complainant has in these records, the Supreme Court in Quesnelle wrote the following in para. 39 about one set of law enforcement officials cooperating with another:
Where an individual voluntarily discloses sensitive information to police, or where police uncover such information in the course of an investigation, it is reasonable to expect that the information will be used for the purpose for which it was obtained: the investigation and prosecution of a particular crime. Similarly, it is reasonable to expect individual police officers to share lawfully gathered information with other law enforcement officials, provided the use is consistent with the purposes for which it was gathered.
30Here, the complainant made allegations of a criminal nature about Mr. Chowdhury’s conduct to the municipal officers. It was entirely reasonable to expect that information would be shared with a police force.
Conclusion
31I conclude that the records are first-party records, and that they are presumptively relevant to an issue at trial or otherwise consider how to defend the case. M.H.’s privacy interests in these records cannot displace the accused’s right to presumptively relevant material arising from the investigation of the events that ultimately concluded with him being charged criminally.
32They are therefore granted to the Crown for vetting and disclosure under its Stinchcombe obligations.
33This application went through several changes throughout multiple appearances, driven by the uncertainty surrounding which disclosure regime was applied. I appreciate the efforts of both counsel to ensure the trial will still be concluded within the Jordan timelines.
Released: March 12, 2024 Signed: Justice Brock Jones
1It is not in dispute that the fact the Crown now has possession of these records, as I released them to Ms. Wong for review, does not automatically convert them into first-party disclosure: see Criminal Code section 278.2(2).