R. v. T.S., 2021 ONCJ 299

Court File and Parties

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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 159, 160, 162, 163.1, 170, 171, 171.1,172, 172.1, 172.2, 173, 210, 211, 212, 212, 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: 2021 05 23 COURT FILE No.: Ottawa 17-SA5104

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

T. S.

Before: Justice P.K. Doody

Heard on: May 17, 2021

Reasons for decision on whether the Sexual Assault Evidence Kit is a “record” under s. 278.1 of the Criminal Code released May 23, 2021

Counsel: Meghan Cunningham........................................................................ counsel for the Crown Kate Irwin....................................................................................... counsel for the defendant

Endorsement

DOODY J.:

[1] The defendant is charged with two counts of sexual assault on November 15, 2017 – one count against each of two complainants, J.S. and K.K. During the course of the cross-examination of J.S. (who I will refer to hereafter as the complainant), defence counsel indicated that she wished to ask her questions about answers she had given to the nurse when she attended at the Ottawa Hospital on the date of the alleged assault. The answers were recorded in the Sexual Assault Evidence Kit (“the evidence kit”), a form completed by the nurse during J.S.’s attendance.

[2] Crown counsel took the position that no evidence could be adduced from the evidence kit without an order under s. 278.94 ruling that the evidence was admissible under s. 278.92, because it was a “record” under s. 278.1 relating to the complainant in which she had a reasonable expectation of privacy. Defence counsel took the position that the evidence kit was not a “record” under s. 278.1 and that no order was required, but that if it was she would bring an application under s. 278.93 for a hearing under s. 278.94 for a ruling that the evidence kit was admissible.

[3] The application before me is for a determination of whether the evidence kit is a “record”.

Statutory Regime

[4] The application to determine whether the evidence kit is a “record” arises out of the amendments to the Criminal Code brought about by Bill C-51 which came into force in December 2018. Those amendments made a number of significant changes in the law relating to trials of individuals accused of sexual offences.

[5] One of those changes was the introduction of s. 278.92, which prohibits the admission into evidence, without leave, of a “record” as defined in s. 278.1 relating to a complainant. Subject to a caveat which is in issue on this application, a “record” is something which contains personal information for which there is a reasonable expectation of privacy. The evidence is inadmissible unless the trial judge determines that it is relevant to an issue at trial and has significant probative value that is not substantially outweighed by the danger of prejudice to the proper administration of justice. In making that determination, the trial judge must consider a number of specified factors. They include the right of the accused to make full answer and defence and the potential prejudice to the complainant’s personal dignity and right of privacy.

[6] The Criminal Code provides a two stage process for the determination of whether evidence of “records” may be admitted into evidence. The first stage is a hearing under s. 278.93 to determine whether the evidence is “capable of being admissible”. If so, the matter proceeds to the second stage of a hearing under s. 278.94 to determine whether the evidence is admissible. If it proceeds to a s. 278.94 hearing, the complainant is entitled to notice, to be represented by counsel, and to appear and make submissions at the hearing. Where the issue arises, as it did here, in the midst of the cross-examination of the complainant, a s. 278.94 hearing requires that the trial be adjourned until the complainant has obtained counsel, the application can be heard, and a decision made by the trial judge.

[7] No application under s. 278.93 to determine admissibility is required, however, where the document in issue is not a “record” as defined in s. 278.1.

[8] The statutory definition of what constitutes a “record” for the purpose of deciding whether its admissibility must be determined under s. 278.92 is a combination of s. 278.1 and 2. 278.92(1).

[9] Section 278.1 is 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. [bolding added]

[10] Subsection 278.92(1) provides that “no record relating to a complainant that is in the possession or control of the accused” which the accused intends to adduce shall be admitted into evidence except after an application under s. 278.93 for a hearing under s. 278.94, and an order from the trial judge admitting the record into evidence, using the criteria I have described.

[11] The definition of a “record” in s. 278.1 was first enacted in 1977 and has, since then, been relevant to the issue of whether a defendant in a sexual offence is entitled to production of a document from a third party. If the document in issue is a “record”, it cannot be produced to the defendant unless he brings an application under s. 278.3 and the judge determines, in a process which engages issues similar to those on a s. 278.94 application, that the record is likely relevant to an issue at trial or the competence of a witness to testify, and the production of the record is necessary in the interests of justice (s. 278.5). Even if a “record” is in the possession of the Crown, it cannot be disclosed to the defendant unless the complainant has expressly waived the application of sections 278.1 to 278.91 (which govern the third party production regime (s. 278.2(2)) or the defendant has brought a successful application under s. 278.3. If no waiver has been given by the complainant, the Crown is required to notify the defendant that the record is in its possession, but is not permitted to disclose its contents (s. 278.2(3)). If the defendant wants to obtain the record and the complainant has not waived the application of sections 278.1 to 278.91, he must bring an application under s. 278.3 for its production.

Issues

[12] There is no question but that the complainant had, at the time the evidence kit was completed, a reasonable expectation of privacy in the evidence kit. The issues are:

(a) whether the evidence kit is described by the exception to the definition – “records made by persons responsible for the investigation or prosecution of the offence”; or

(b) whether the complainant had a reasonable expectation of privacy in the contents of the evidence kit after she signed a form consenting to it being provided to the police – as Crown counsel expressed it, whether she had waived her privacy interests.

Facts

[13] I heard the application to determine whether the evidence kit was a “record” in a voir dire. Counsel agreed on certain facts. Crown counsel called one witness, Sarah Grégoire, the nurse who administered the evidence kit to the complainant and recorded the answers she gave to questions set out in the kit. I accept Ms. Grégoire’s evidence in its entirety.

[14] On November 15, 2017, at 2:50 p.m., the complainant went to the Ottawa Police Service station at 474 Elgin Street to report a sexual assault. She provided a written statement, but told the police she did not want to proceed with charges at that time. The officer who took the statement advised her of the sexual assault services available at the Civic campus of the Ottawa Hospital.

[15] At 4:28 p.m. that day, the complainant attended at the hospital. She met with Ms. Gregoire, who performed a sexual assault examination.

[16] The next day, November 16, the complainant spoke to a police officer and discussed the investigative process. She told him that she was uncertain about whether she wished to see criminal charges laid, and asked for more time to think about it.

[17] On November 22, 2017, the complainant called the officer and told him that she did wish to proceed with charges. On November 24, the case was assigned to Det. Riopel, who made arrangements for the complainant to attend the station on November 28 for a video-recorded interview. On November 28, the complainant went to the hospital and signed a form entitled “Consent to Release Sexual Assault Evidence Kit” to police. Her signature was witnessed by Tracie Parr, a nurse who, like Ms. Grégoire, worked in the sexual assault unit and had received special training to qualify her to do so.

[18] The form reads:

I consent to release the forensic evidence collected during this examination to the police includes:

(a) all samples collected during the course of the medical examination;

(b) copies of the Sexual Assault Evidence Kit forms;

(c) the Physical Examination form; and

(d) photographs of any injuries.

I am consenting to the above on the understanding that the forensic evidence may be used by the police in their investigation of the case of which I am the complainant. This evidence could be used at a trial.

I am consenting to provide the forensic evidence to the police voluntarily.

[19] The same day, after the complainant signed the consent form, a member of the Ottawa Police Service went to the hospital and took possession of the evidence kit.

[20] The defendant was arrested on these charges on July 12, 2018. On July 27, 2018, the defendant was provided with initial disclosure, which did not include the evidence kit. The Crown provided a notice which stated:

Please be advised that there are records in the possession of the Crown [SAEK] in which the witness [J.S.] has a reasonable expectation of privacy.

As these records are protected by s.278.2, they are not being provided to you as disclosure at this time. We are notifying you that the records are in our possession pursuant to s.278.2 (3). Unless the witness expressly waives the application of sections 278.3 to 278.91, you will have to make an application for production pursuant to s.278.3 in order to receive these records.

[21] On September 28, 2018, the complainant provided an express waiver under s. 278.2(2) and the evidence kit was disclosed to the defendant. That waiver was entitled “Disclosure of Private Records – Waiver of the application of Sections 278.1 to 278.91 of the Criminal Code”. It read:

I, [J.S.], confirm that the following has been explained to me:

1. There are special rules that apply to documents and records in which I have a reasonable expectation of privacy (such as medical records, phone records, or diary entries). My privacy rights in these records are protected by the procedures set out in ss. 278.1 to 278.91 of the Criminal Code;

2. Before these records can be disclosed, I have the right to independent legal advice to assist me in determining whether I wish to waive my privacy rights in relation to these records, and this legal advice will be provided to me free of charge.

3. If I choose not to waive my privacy rights in relation to the records, the Accused must bring an Application in court for disclosure of the records. I have the right to legal advice and representation in regards to any such Application, this legal representation will be provided to me free of charge.

(circle and initial one)

I have received independent legal advice on _________ (date)

Or:

I do not wish to receive independent legal advice.

I, [J.S.] authorize and consent to the disclosure to the Accused or to Counsel for the Accused [T.S.] (name of accused), by the Crown Attorney’s Office, of records in its possession (describe records) “SAEK records”

I understand that these records are being provided to the Accused or his/her Counsel in relation to the criminal proceedings against [T.S.] (name of accused)

[J.S.] Name of Person to whom Records pertain (please print)

“J.S. [complainant’s signature]”

“September 28, 2018”

[22] All nurses working as a sexual assault / domestic violence nurse receive special training. They receive two weeks of in class training, and complete further training online. They then to go to Toronto, where they undergo further training. They receive a designation as a “sexual assault nurse examiner”.

[23] The training is provided and overseen by the Ontario Sexual Assault Domestic Violence Network, which oversees all sexual assault and domestic violence programs in Ontario. There are approximately 45 sexual assault and domestic violence programs in cities across the province. They all operate under the same guidelines and have the same mandate. One of those clinics is at the Civic campus of the Ottawa Hospital. Anyone who has been a victim of sexual assault or domestic violence is welcome to receive care at any of these clinics.

[24] Ms. Grégoire did not remember dealing with the complainant. She did, however, recognize her writing on the evidence kit and testified as to her normal practice in dealing with persons who complain of sexual assault. I find that she followed that practice when she dealt with the complainant.

[25] If a person comes to Ms. Grégoire (and I infer if a person were to see any sexual assault nurse examiner at one of the clinics which is part of the Ontario Sexual Assault Domestic Violence Network) with a complaint of sexual assault, she advises them that they have options. They do not have to complete the evidence kit – it is entirely their choice. If they agree to the evidence kit procedure, she takes blood and urine samples and sends them for testing. She then goes through the steps dictated by the evidence kit.

[26] The evidence kits are prepared by the Centre for Forensic Science and distributed, in sealed cardboard boxes, to each clinic. At the Ottawa Hospital, they are all stored in locked cupboards in the offices of the sexual assault and domestic violence clinic, which is separate from the rest of the hospital. The clinic includes separate examination rooms containing the necessary equipment to conduct the examination required by the evidence kit.

[27] The evidence kit form is 12 pages. The examination and administration of the questionnaire takes about 4 hours to complete if it is not complicated. The nurse is required to note whether police accompanied the person to the hospital and, if so, the police service, officer’s name, and badge number. (Approximately 25% of complainants are accompanied by police when they attend at the hospital.) The location of the alleged assault is set out. A series of questions is asked – whether and when particular sexual activities occurred (either before or after the assault), whether a condom was used, and whether the person had bathed, showered, douched, voided, or defecated between the assault and the evidence collection. The nurse is required to describe the body site(s) of any bleeding injuries. The person is required to state whether the clothes she is wearing were worn during the assault and, if not, whether the clothes worn then are available and if they had been washed. She is asked whether the assailant potentially transferred bodily fluids such as ejaculate, saliva, or blood, to her clothing. Evidence such as pieces of clothing are taken and itemized on the form. The patient is asked whether there was penetration or attempted penetration of her mouth or anus by the assailant’s penis, whether there was ejaculation, and whether a condom, object, or lubricant was used. She is asked if the assailant potentially transferred bodily fluids to a non-genital area on her skin. Swabs are taken of potential evidence on the patient’s body, including her genitalia and vagina. She is asked if alcohol or drugs had been used in the 24 hours before the assault. DNA, urine, and blood samples are taken. Diagrams of female and male bodies, including genitalia, are provided for the nurse to mark injuries and other marks relevant to the issue of whether the patient had been assaulted.

[28] When the questionnaire is completed, it is locked in a cupboard with all the swabs used to collect samples. It is kept there until the patient decides whether to have the evidence kit provided to the police. If the patient asks that the evidence kit be destroyed, that is done, without notice to the police. The evidence kits are kept locked in the cupboard for a year. If the patient has not told the hospital to either destroy it or provide it to the police within the year, it is destroyed, in accordance with a consent which the patient is asked to sign when she is being examined and questioned. The hospital will refuse to produce the evidence kit to a police officer if the patient has not consented to its release.

[29] The consent which the complainant signed at the hospital is part of the standard evidence kit. As I have noted, it states that the complainant is aware that “the forensic evidence may be used by the police in their investigation of the case of which I am the complainant. This evidence could be used at a trial.” Ms. Grégoire testified that she does not volunteer any information to the patient about how the evidence could be used at trial, but if she is asked if something said could be brought up in court, she tells the patient that anything she writes down can be brought up in court. She does not tell the patient what steps, if any, might be required before questions about this can be asked or the evidence led. If the patient has questions about the consent form, she is put in touch with a program called the “victim quick response program” which connects her with legal counsel.

[30] At the same time as the evidence kit protocol is followed, the nurse takes a second set of swabs to test for sexually transmitted disease. Those swabs are noted on the hospital chart, which is a separate document from the evidence kit. The nurse also inquires whether a condom was used and whether the assailant ejaculated. She has a discussion with the patient about medications and treatment, including emergency contraception, if the patient had unprotected sexual relations with the assailant. That information is also noted on the hospital chart, and not on the evidence kit. Any advice given to the patient about follow up care is put only on the hospital chart.

[31] The samples taken by the sexual assault nurse are time sensitive. Bodily fluids and blood samples can degrade over time. They can be washed away from skin and clothing. Injuries change over time – sometimes becoming more noticeable, and usually eventually healing. Ms. Grégoire agreed that, as long as the patient agrees, it is very important that the evidence be obtained as quickly as possible. As she put it, she has to get crucial pieces of evidence and then the patient can take a moment to breathe and decide what to do with it. The work the sexual assault nurse does is not something that the patient could do herself. Ms. Grégoire said that she would never give the questionnaire to the patient and ask her to fill it in herself because some of the questions require a lot of explanation and they need to be answered with a full understanding.

[32] One copy of the evidence kit form is sent to the hospital records office to be kept with the hospital chart. It is not part of the hospital chart, but is kept regardless of whether the patient asks the hospital to destroy the evidence kit. If the evidence kit is destroyed, the samples are destroyed along with two other copies of the evidence kit form. Ms. Grégoire was asked what use the hospital could make of the evidence kit form if the samples and other copies were destroyed, and she said that the hospital would never use it for anything else and she did not know why it was kept other than as a record of the patient having come in and providing that information. In re-examination, however, she agreed that some of the information on the evidence kit form could be relevant to a patient’s future medical care, such as when patients have been affected by past trauma. The evidence kit form could be useful to understand the patient’s history.

Analysis

The evidence kit was made by a person responsible for the investigation of the offence

[33] Crown counsel submitted that the evidence kit was not made by a “person responsible for the investigation of the offence” because only a police officer or a person acting on behalf of a police officer or at a police officer’s request was responsible for the investigation of the offence. She relied on the decision of the Supreme Court of Canada in R. v. Quesnelle, 2014 SCC 46, in which Karakatsanis J. wrote at para. 51 that

the exemption applies to records made by police or prosecutors in relation to the offence at issue.

[34] Defence counsel submitted that Ms. Grégoire was a “person responsible for the investigation of the offence” because that was the task in which she was engaged when the evidence kit was completed. She submits that the exemption is not limited to police or police agents because it does not use language which could have easily been used to achieve that purpose.

[35] In Quesnelle, the court was asked to determine whether the third party production regime created by s. 278.1 to 278.91 applied to police occurrence reports for offences other than the charge faced by the defendant which were relevant to that charge – whether those reports were “records” or whether they were covered by the first party disclosure requirements set out in Stinchcombe. The issue before the Supreme Court in Quesnelle was not whether the exemption to the definition of “record” applied only to police. It was whether all records made by police were exempted from the s. 278 regime, or whether it was only police records related to the offence in issue. The Court was not asked to, and did not, decide that the exemption applied only to police created records.

[36] I have been provided with three cases that relate to this issue. In R. v. Oakes, 2020 SKPC 23, the Crown argued that it was prohibited by s. 278.2 from disclosing to the defence the sexual assault evidence kit prepared by medical professionals who examined the complainant, because the complainant had a reasonable expectation of privacy in those records. Kovatch Prov. Ct. J. held that the sexual assault evidence kit did not come within the s. 278 regime, and must be disclosed to the defence pursuant to the principles set out in Stinchcombe. He wrote at para. 18:

The underlined portion of section 278.1 clearly indicates that "records made by persons responsible for the investigation or prosecution of the offence" are not a record so that section 278.2 would have no application to them. The general occurrence report quoted at length above, clearly states that the nurse practitioner performed the sexual assault kit and that the entirety of the sexual assault kit was immediately turned over to Cst. Stregger of the Fort Qu'Appelle RCMP. It is my understanding (from another case) that the Police prepare and provide the sexual assault kits to the hospitals. Medical personnel complete the kits and turn them over to the Police. I do not know how it could be contended that this sexual assault kit was not prepared for a person responsible for the investigation or prosecution of this offence.

[37] This decision does not expressly conclude that a “person responsible for the investigation or prosecution of the offence” need not be a police officer. It rests on a conclusion that the medical professionals who compiled the record did so as agents of the police. Crown counsel submitted before me that records created by a police agent would be covered by the exemption. However, as she submitted and as I agree, Ms. Grégoire was not acting on behalf of the police when she completed the evidence kit form. She did so at the request of the complainant.

[38] In Gravel c. R., [2019] J.Q. No. 12220, Simon J. ordered that the sexual assault evidence kit be disclosed to the defendant, ruling that it was not a “record” under s. 278.1 because it came within the exception, having been prepared by a “person responsible for the investigation or prosecution of the offence”.

[39] He concluded that the kit was generated for the purposes of the investigation and was not independent of it. In reaching that conclusion, he relied on the following (as set out at paras. 110 to 117):

• the kit was prepared by the police and ended up in the hands of the prosecutor;
• the police usually accompanied the complainant to the hospital to meet the nurse to allow the evidence kit to be completed;
• the complainant agreed to the evidence kit being handed over to the police so it could be used in the investigation, which he likened to filing a complaint with the police;
• the police immediately took possession of the kit, forwarded the samples to the laboratory for testing and keeping the medical examination form to give to Crown counsel; and
• it was separate and distinct from the hospital files created as a result of injuries to the victim.

The facts in the case before me are not the same as those before Simon J.

[40] Simon J. also relied on the following excerpt from the text Prosecuting and Defending Sexual Offence Cases: A Practitioner’s Handbook, by Daniel Brown and Jill Witkin (Toronto, Emond, 2018):

The records covered under section 278.1 of the Criminal Code are those that are not generated by the authorities for the purpose of investigation or prosecution of the offence in question, and that contain a reasonable expectation of privacy. Therefore, they would not reasonably include records generated from a Sexual Assault Evidence Kit (SAEK). In other words, in practice the Crown should disclose the SAEK as first-party disclosure under Stinchcombe. However any other medical records generated at a hospital, even during the same visit, should properly fall under section 278.1 and be subject to an application before the court prior to being disclosed, or if in the possession of the Crown, an informed waiver from the victim. [emphasis added by Simon J.]

[41] In R. v. K.T., [2020] O.J. No. 4788, I held that the documents created by an independent investigator hired by the complainant’s employer to investigate her allegations of sexual harassment and sexual assault made under the employer’s legally mandated workplace harassment policy (the same allegations which formed the basis of the charge of sexual assault against the defendant) were “records” under s. 278.1. I held that the exception did not apply because the documents were created for a purpose which was separate from the investigation of the offence before the court. I therefore rejected the defence submission that the exception covered all documents prepared for the purpose of an investigation into the same facts which underly the criminal prosecution, no matter the purpose for which that investigation took place. I also held, however, contrary to the submission of Crown counsel, that the exception for documents made by “persons responsible for the investigation or prosecution of the offence” was not limited to documents made by or for the police.

[42] As I held in K.T., it is useful to consider the purpose of the exemption. As Watt J.A. wrote in R. v. Stipo, 2019 ONCA 3:

It is well settled that statutory interpretation cannot be founded on the wording of the legislation alone. Instead, the approach is that advocated by Elmer Driedger in his Construction of Statutes (2nd ed, 1983):

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

See, Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21; Wilson v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 47, [2015] 3 S.C.R. 300, at para. 18.

This preferred approach recognizes the significant role that context must play when courts construe the written words of a statute. No statutory provision is an island in itself. Its words take their colour from their surroundings: Bell ExpressVu, at para. 27. All issues of statutory interpretation involve the fundamental question of what Parliament intended. To discover what Parliament intended, we look at the words of the provision, informed by its history, context and purpose: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at para. 20.

[43] Karakatsanis J. explained the purpose of the exemption contained in the definition of "record" at paras. 54 to 56 of Quesnelle:

54 The Mills regime serves two goals: first, the regime protects the privacy of complainants and witnesses, and second, it preserves the fair trial rights of the accused.

55 The definition of "record" in s. 278.1 serves a gatekeeping function within the regime. The reasonable expectation of privacy test sweeps in records that merit the protection afforded by the Mills regime. The exemption further contributes to the gatekeeping role of the section by bypassing the balancing process for records that Parliament recognized should always be produced.

56 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. However, for records unrelated to the offence at issue, the balancing exercise will often have important work to do. The rationale for the exemption does not apply, and to bypass the balancing process on the grounds that the document was made by the same police force that investigated the claim would not accord with the goals of the scheme.

[44] I concluded in K.T. that the determining factor in the issue of whether the exemption applies is the same as it was for the issue before the Supreme Court in Quesnelle – the purpose for which the document was created. If the document in issue was made for the purpose of investigating the criminal offence before the court, it is exempted from the application of the regime which requires the particular scrutiny and procedures mandated by s. 278 to s. 278.92. If the document in issue was made for another purpose – such as to investigate a complaint under a workplace harassment policy, or a complaint of child abuse to the Children’s Aid Society, it is not exempted and will be subjected to that scrutiny and those procedures so long as it is a document in which the complainant has a reasonable expectation of privacy.

[45] Crown counsel submitted in the case now before me that this approach ignores the words “persons responsible for the investigation or prosecution of the offence” in the s. 278.1 definition. She submitted that the persons responsible for the investigation and prosecution of the offence in Canada are the police and the Crown, respectively. She conceded that documents prepared at the request of, or by persons acting as agents of, the police, were “records”, because the principles of agency identified the agent’s actions with the principal. However, she submits, documents made by persons other than the police or their agents investigating the very offence now before the court are not covered by the exclusion.

[46] I did not accept that submission in K.T. and I do not accept it now. It is an accepted principle of statutory interpretation that Parliament uses words carefully and consistently. Within a statute, the same words are taken to have the same meaning and different words have different meanings. (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625 at para. 134) The word “police” appears in the Criminal Code 90 times. A “police officer” is a defined term by s. 2. The term “peace officer” is also commonly used in the Criminal Code, and is defined in s. 2 to include a police officer. Parliament could have used either of these terms in s. 278.1 if it had intended to limit the exception to documents made by or on behalf of police or peace officers.

[47] I conclude that the evidence kit is a document prepared by a person responsible for the investigation of the offence. I reach that conclusion for the following reasons.

• The purpose of the preparation of the evidence kit was to investigate the sexual assault allegation against the defendant.
• It is only completed if the complainant has told the nurse that she was sexually assaulted.
• It is prepared as soon as possible after that allegation is made so that evidence which may be important to the investigation of that allegation is not lost by the passage of time.
• The patient could not do this herself – it requires training.
• It is separate and apart from the hospital record and has limited therapeutic utility.
• The samples are kept in a locked cabinet and destroyed if the complainant does not ask the police to proceed with the investigation.
• The questions asked and samples taken are specifically directed at the issues which could be very relevant to a criminal investigation.
• The kit and questionnaire which forms part of the kit are designed by the Centre for Forensic Sciences, a laboratory whose purpose is to conduct scientific investigations in criminal cases.

[48] I also conclude that Ms. Grégoire was a “person responsible for the investigation of the offence” now before the court. She received special training to ensure, among other things, that the samples were collected, and the questions asked, in an appropriate manner. In my view, she had a public responsibility to ensure that the evidence kit was completed in a manner suitable for its purpose. That was one of the purposes for which she was trained, and one of the purposes for which she had been placed in that role in that institution. She was responsible for that part of the investigation of the offence. The only purpose of this work, for which she was responsible, was to ensure that there had been a timely and appropriate investigation of the allegation of sexual assault should the complainant decide to proceed.

Conclusion

[49] I conclude that the Sexual Assault Evidence Kit was prepared by a person responsible for the investigation of the offence. It is not a “record” within the meaning of that term in s. 278.1 of the Criminal Code. No application under s. 278.93 is required for the defendant to adduce the evidence kit, or any information contained in it, into evidence.

[50] As a result of this conclusion, I need not determine whether whether the complainant had a reasonable expectation of privacy in the contents of the evidence kit after she signed the form consenting to it being provided to the police.

Released: May 23, 2021 Signed: Justice P. K. Doody