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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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.
DATE: January 19, 2021 ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
MOHANARANJAN NAVARATNAM
Before: Justice M. Speyer Heard on: January 11, 2021 Reasons for Judgment released on: January 19, 2021
Counsel: Meghan Petrie..................................................................................... counsel for the Crown Emily Dixon.......................................................... counsel for Mohanaranjan Navaratnam Dawne Way............................................................................... counsel for the Complainant
M. Speyer J.:
Ruling on s. 7 Charter application for disclosure and Complainant’s application for standing
Background and basis for s. 7 application:
[1] Mr. Navaratnam is charged with sexual assault of V.H. The offence is alleged to have occurred on June 12, 2019. It is alleged by the complainant that the Applicant sexually assaulted her while she was sleeping. In her statement to police, she disclosed that she had consumed alcohol with the Applicant and had taken pain medication before going to bed. She told police she did not consent to any sexual activity with the Applicant. Mr. Navaratnam takes the position that V.H. consented to the sexual activity.
[2] The Applicant has filed a notice of application for third-party records under s. 278.1 to 278.91 of the Criminal Code seeking:
(a) all Toronto Police Service (“TPS”) occurrence reports wherein the complainant called police to make an allegation of sexual assault, both before and after the Applicant’s arrest on June 12th, 2019;
(b) all TPS occurrence reports in which the Complainant was investigated by police as a suspect or an accused person, both before and after the Applicant’s arrest on June 12th, 2019.
[3] Prior to this motion, the Crown inquired and disclosed:
- That the complainant does not have a criminal record;
- That the complainant does not have any outstanding charges;
- That there are police occurrence reports relating to the complainant, unrelated to the June 12, 2019 sexual assault investigation;
- That these occurrence reports are not in the Crown’s possession; and
- That none of these unrelated occurrence reports involve the complainant making an allegation of sexual assault against any other men.
[4] Subsequently, Mr. Navaratnam advised the Crown and the court that he was abandoning his application for production of occurrence reports wherein the complainant made allegations of sexual assault against other men. However, he is still seeking production of occurrence reports in which the complainant was investigated by police as a suspect or an accused person, both before and after the Applicant’s arrest on June 12th, 2019.
[5] In furtherance of his s. 278.2 application, Mr. Navaratnam has brought an application under section 7 of the Charter of Rights and Freedoms ("The Charter") for disclosure of a description of the police occurrence reports involving the complainant. Specifically, he seeks disclosure of the number of occurrences, their dates, the nature of the reports, and the outcome of the investigations. In doing so, he relies on the Crown’s duty to make reasonable inquiries and to disclose any potentially relevant evidence as required by the Supreme Court of Canada in R. v. Quesnelle, 2014 SCC 46 at para 18 and in R. v. McNeil, 2009 SCC 3, at paras 13, 48-51.
[6] The Crown opposes this application on the basis that it is essentially an attempt to circumvent the Criminal Code provisions in ss. 278.1 to 278.92 (the Mills regime) that govern the production of third-party records in sexual assault prosecutions. It submits that there is no duty on the Crown to obtain, review and summarize occurrence reports unrelated to the investigation for which no relevance has been established. It submits that it has fulfilled its disclosure obligation by notifying the Applicant of the existence of the records, but that providing further information concerning the content of the records is prohibited by and would defeat the very purpose of the Criminal Code provisions.
[7] Prior to hearing this application, I received a request from complainant’s counsel seeking standing on the s. 7 disclosure application. On January 11, 2021 I granted leave, with reasons to follow. My reasons for that ruling are included herein.
Complainant’s standing:
[8] The Applicant is seeking disclosure of a description of the police occurrence reports involving the complainant, including the number of police occurrence reports, their dates, the nature of the offence investigated, and the outcome of the investigations. I am satisfied that the information sought is a “record” pursuant to section 278.1 of the Code which states as follows:
For the purposes of sections 278.2 to 278.92, record means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
[9] In R. v. Quesnelle, 2014 SCC 46, supra, the Supreme Court of Canada held that police occurrence reports for unrelated incidents involving the complainant or a witness in a sexual assault case are “records” withing the meaning of s. 278.1 and are subject to the Mills regime governing production to the accused. In doing so, the court recognized that police records often contain highly sensitive information in which individuals retain a reasonable expectation of privacy. Disclosure of this information ought not be disclosed unless the accused has demonstrated that the records are likely relevant to an issue at trial and its disclosure is necessary in the interest of justice. At para. 2, the court stated:
I conclude 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.
[10] The court drew a distinction between occurrence reports which are made during the investigation of the offence being prosecuted, and which must be disclosed pursuant to Stinchcombe as first party disclosure, and occurrence reports that are unrelated to the offence. At para. 42, it stated:
But what of police occurrence reports that were made in connection with separate incidents, rather than as part of the investigation into the offence being prosecuted? There will certainly be times when the disclosure of such records is necessary to ensure a fair trial. Consequently, the Mills regime gives trial judges the power to disclose records under such circumstances. The judge must balance the privacy of complainants and witnesses against ensuring the disclosure necessary to make full answer and defence. However, the fact that a record might be disclosed under appropriate circumstances does not nullify the expectation of privacy in that record in general.
[11] Section 278.4(2) of the Code gives the complainant, or witness or any other person to whom the record relates, standing to appear and make submissions on applications for production of such records.
[12] In R. v. Oleksiuk, [2013] O.J. No. 5011 (SCJ) Justice M.S. James, relying on L.L.A. v. A.B., [1995] 4 S.C.R. 536, paras. 27, 28 held that “Natural justice principles are engaged when a party with a discernible interest in the outcome seeks an opportunity to be heard”. In that case, Justice James permitted the OPP to intervene on an application for certiorari quashing an order of a lower court ordering disclosure of records in the possession of the OPP relating to an Intoxylizer 8000C breath testing device.
[13] In L.L.A. v. A.B., supra, the Supreme Court of Canada considered the complainant’s right to be heard on an appeal from an interlocutory order for disclosure of her medical records to the accused. At para. 27 and 28, Justice L'Heureux-Dubé held that the rule of natural justice, an important tenet of our legal system, requires that courts provide those who will be affected by their decisions an opportunity to be heard. In granting the complainant standing in such appeals, the court recognized that the complainant has an interest in making representations, since an order for disclosure of the records would directly impact on her privacy rights.
[14] In the case at bar, the Applicant argues that he is not seeking production of the records, but merely a general summary of their contents. This is a distinction without a difference. The privacy right of the complainant is rooted in the information contained in the reports. Disclosure of any information contained in the reports, whether detailed or a general summary, will have a direct impact on her privacy rights. By enacting s. 278.4(2), Parliament intended to grant the complainant a right to make submissions independently of those made on behalf of the Crown. In my view, this right ought not to be disregarded simply because the remedy sought is not for the record itself, but for a general description or summary of the record. Either way, the complainant has a direct interest in the outcome of the application, and she should be provided the opportunity to make submissions.
Disclosure of summaries of the occurrence reports:
[15] It is well established that the Crown has a duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory. The duty, which is triggered upon request and does not require an application to court, applies only to the prosecuting Crown. Relevant information is any information that may reasonably assist the accused in making full answer and defence to the charge. It includes not only evidence that will form part of the case against the accused, but any information, whether admissible or not, that might possibly assist the accused in her defence. Where the Crown refuses to disclose evidence for reasons of privilege or irrelevance, the defence can request a review by the court and the Crown must justify its refusal to disclose by showing that the information is "clearly irrelevant" or privileged: Stinchcombe, [1991] 3 S.C.R. 326, supra.
[16] Even where the material is in the possession of the prosecuting Crown, an accused’s right to disclosure and the reciprocal duty of the prosecuting Crown to disclose are not absolute. The accused is not entitled to receive, and no Crown is required to disclose, information that is irrelevant, subject to privilege, or is otherwise subject to a separate or discrete disclosure regime: see R. v. Stipo, 2019 ONCA 3 at para. 174.
[17] In R. v. McNeil, 2009 SCC 3, supra, the Supreme Court of Canada dealt with whether police disciplinary records and criminal investigation files relating to the Crown’s main witness, are subject to the Crown’s first party disclosure obligations. The court reiterated that under Stinchcombe, the Crown’s first party disclosure obligation extends to material relating to the accused’s case that is in the possession or control of the prosecuting Crown. This material is commonly referred to as the “fruits of the investigation”.
[18] The police must also disclose to the prosecuting Crown any additional information that is “obviously relevant” to an accused’s case. This would include any information that is not in the investigative file but would nonetheless be required to be disclosed under Stinchcombe, because it relates to the accused’s ability to make full answer and defence. Moreover, the Crown cannot be a passive recipient of disclosure material provided by the police. Where the Crown is informed of potentially relevant evidence pertaining to the credibility and reliability of a witness in its case, it has a duty to inquire further and obtain such material from the police or other Crown agencies. The court concluded that police records relating to findings of serious misconduct by police officers involved in the investigation of the charges against an accused are subject to first party disclosure as they are “obviously relevant” to the accused’s case and must be included in the first party disclosure package (para. 59).
[19] The issue of what is “obviously relevant” and subject to first party disclosure was considered by the Supreme Court of Canada in R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35. At para 23, the court held that this 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. McNeil requires the police to hand such information to the Crown.
[20] However, as was recognized in R. v. Gubbins and R. v. McNeil, not all police records will be subject to first party disclosure. At para. 59 of McNeil, the court held"not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused's case". Only records of misconduct that are obviously relevant form a part of first party disclosure. If the record of police misconduct is not obviously relevant, an accused person can still gain access to it by relying on the O'Connor process for third party disclosure. This would include files relating to complaints of criminal activity by Crown witnesses: (Gubbins, para 23-24).
[21] Thus, the route to disclosure of records that are neither part of the investigative file nor obviously relevant, and fall outside of the Stinchcombe regime, is through an application to the court for disclosure of third-party records, either through the O’Conner process, or in sexual assault cases, through the Mills regime (see too R. v. Stipo, supra, at para. 87).
[22] In R. v. Pascal, 2020 ONCA 287, para 129, Justice Watt held that “obviously relevant” included the criminal record of Crown witnesses and all information about any outstanding charges they faced. He concluded that this information is obviously relevant, and subject to Stinchcombe first party disclosure, because it is evidence that can be used by the defendant to impeach the credibility of Crown witnesses.
[23] In this case, the information sought is not obviously relevant because it is not a criminal record of the complainant or a record of any outstanding charges. Nonetheless, there may still be a duty on the Crown to inquire about and assess the potential relevancy of the information sought by the Applicant.
[24] The duty of the Crown to inquire about potentially relevant evidence was considered in R. v. Quesnelle, 2014 SCC 46, supra, para 12. The 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 police or other Crown entities that is potentially relevant to the prosecution or the defence.
[25] Furthermore, the Crown’s duty to inquire, and the corresponding police duty to disclose to the prosecuting Crown, applies notwithstanding the Mills regime. In Quesnelle at para. 18 the Court stated:
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. The Mills regime simply replaces the obligation to produce relevant records directly with an obligation to give notice of their existence: Criminal Code, s. 278.2(3).
[26] While the Crown may be prohibited by virtue of s. 278.2(3) of the Code from disclosing the contents of police occurrence reports unrelated to the investigation into the charge being prosecuted, it still has an obligation in appropriate cases to notify the accused of their existence. Quesnelle para 16:
While the Crown may not disclose the contents of the record, it should in appropriate circumstances give an assessment of the likely relevance of a record in its possession, as well as indicate the basis of its relevance. At a minimum, the Crown should advise if it intends to use any information contained in records protected by Mills as part of its case against an accused. The Crown’s assessment that the record is relevant for a specific reason will likely establish a basis for the judge to order production to the court.
[27] In assessing whether information is relevant, the court in Quesnelle cautioned as follows, at para. 17:
The mere fact that a police occurrence report concerns a complainant or witness is not enough to make the report relevant to an otherwise unrelated prosecution. The Mills provisions echo this Court’s frequent warnings against relying on myths and stereotypes about sexual assault complainants in assessing the relevance of evidence in the context of sexual assault trials. For example, the fact that a complainant has reported sexual violence in the recent or distant past, provides sexual services for money, or suffers from addiction is not, without more, enough to render a police occurrence report “relevant”: see, e.g., R. v. Esau, [1997] 2 S.C.R. 777, at para. 82 (per McLachlin J., dissenting); R. v. Ewanchuk, [1999] 1 S.C.R. 330, at paras. 86-97 (per L’Heureux-Dubé J.); R. v. Osolin, [1993] 4 S.C.R. 595, at pp. 670-72 (per Cory J.). However, occurrence reports which raise legitimate questions about the credibility of the complainant or a witness, or some other issue at trial, will be treated as relevant.
[28] Accordingly, the Crown’s duty to inquire about and assess material is triggered when it is informed of potentially relevant evidence. However, nothing in McNeil or Quesnelle requires the Crown to obtain and review records that do not fall within the ambit of first party disclosure and have not been shown to be potentially relevant to an issue. Where the accused fails to demonstrate that the record contains potentially relevant evidence, the Crown’s duty to inquire about and assess the material for relevance is not triggered; R. v. Essel, [2019] ONCA 918, paras. 51 – 54.
[29] In the recent case of R. v. Bilachi, unreported, SCJ January 7, 2020, Justice Davies considered the phrase “potentially relevant”:
[20] The phrase “likely relevance” was defined by the Supreme Court of Canada in R. v. O’Connor, [1995] S.C.R. 411 at para. 22 to mean 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.” The Crown’s duty to inquire is engaged when they are notified that another agency has “potentially relevant” information. Potential relevance is a lower threshold than likely relevance. However, the threshold cannot be so low as to meaningless or to require the Crown to make inquiries if there is any possibility, no matter how remote or speculative, that the records contain relevant information.
[30] In this case, the Applicant argues that the occurrence reports are potentially relevant to the credibility and reliability of the complainant. He is seeking a general description of the reports to permit him to better frame his application for production of the police reports under sections 278.2 - 278. 91.
[31] The Applicant submits that the relevancy of the occurrence reports is premised on the fact that the complainant told the police that prior to the alleged sexual assault, she had consumed alcohol and had taken pain medication. In his affidavit in support of the third-party records application, the Applicant states:
[7] [V.H.] can sometimes be violent and erratic when she is intoxicated and on her medication. It is not uncommon that when drunk and high she is mad and aggressive.
[8] On June 11th, 2019, the complainant received her steroid injection. That night, I came over and made her and her son dinner. She took her medication. We started drinking ouzo. She was smoking marijuana. Later that night, we were lying in bed together. We then had consensual sex.
[9] I was subsequently arrested on June 12th, 2019, for sexual assault.
[10] I believe that the complainant reported me to police because she was upset and jealous about me spending time with Savannah. In her statement to police, she reports that I was hitting on Savannah the evening of June 11th, 2019.
[15] In addition, from discussions with [V.H.], I know that she has had other interactions with the police regarding her aggressive behaviour. She often gets into fights at the local bar. I believe disclosure of police occurrence reports regarding the complainant as a suspect are necessary for my full answer and defence.
[32] I agree with the Crown that this does not establish a basis for a finding that the occurrence reports are potentially relevant. Relevance cannot be based on speculative or stereotypical assumptions: Quesnelle at para. 17 and Essel, at paras 15 to 17. The mere assertion that the complainant may suffer from a substance addiction is not enough to establish relevancy. Certainly, the complainant’s credibility will be central at trial. Defence counsel may attempt to undermine her credibility by cross examining her on the factual basis for previous bad conduct: R. v. Abdo, 2016 ONSC 7240, par 11. However, the attack on her credibility will not be without limit and must not be based on stereotypical assumptions about sexual assault complainants that are not logically connected to, or probative of, an issue at trial.
[33] In this case, the central issue will be whether the complainant consented to the sexual activity in question. There is nothing in the record before me to suggest that V.H. behaved erratically or aggressively on June 11, 2019, or on June 12, 2019 when she confronted the Applicant about his conduct. Nor is there any suggestion that the complainant was intoxicated, or irrational or aggressive when she made her police report. Accordingly, whether or not she acted aggressively or irrationally on other occasions will not assist me, as the trier of fact, to assess her credibility or reliability about whether she consented to the sexual activity in question.
[34] The Applicant asserts in his affidavit that that the complainant’s motive to fabricate a sexual assault is that she was jealous of his attentions to another woman. He does not claim that the complainant’s aggressive and irrational behaviour was the motivating factor for her report to police. Even if police records exist that reveal that on other occasions the complainant acted irrationally and aggressively when intoxicated by substances, how is her conduct on those occasions potentially relevant to her motive to fabricate a sexual assault against the Applicant? Without more, there is no potential logical nexus between the information sought and the issues of credibility and motive to fabricate. A bare assertion that unrelated occurrence reports may reveal something about the complainant’s behaviour on other occasions, is not enough to establish potential relevance to an issue at trial.
[35] In conclusion, I am satisfied that the Crown is not obliged to inquire about, obtain and assess police occurrence reports unrelated to the June 12, 2019 sexual assault investigation. The application for disclosure of a description of those reports is dismissed.
Released: January 19, 2021 Signed: Justice M. Speyer
