ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR13-300000-62-00
DATE: 20130416
BETWEEN:
HER MAJESTY THE QUEEN
- and -
L.M.N.
Respondent
- and -
W.Y.
Applicant
Soula Olver, for the Crown
Karen Steward, for the Respondent L.M.N.
Jeffrey F. Mazin, for the Applicant
HEARD: April 11, 2013
Subject to any further Order by a court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way pursuant to s. 486.4 of the Criminal Code of Canada.
KELLY J.
Ruling Re: Third Party Records
[1] The Applicant, W.Y., is charged with a number of Criminal Code offences that are said to have occurred between January 1, 2011 and September 21, 2012. It is alleged that he assaulted the complainant during this period of time.[^1]
[2] The Applicant seeks production of all occurrence reports, records of arrest, synopses or similar documentation relating to the complainant as produced by the Toronto Police Service. He seeks such documentation for the period of January 1, 2011 to September 21, 2012 – the period of time covered by the indictment.
[3] It is the position of the Applicant that the records may demonstrate that the injuries alleged to have been inflicted on the complainant were caused by someone other than himself. As such, the records are likely relevant to challenge the credibility of the complainant. Counsel for the complainant submits that such records are not relevant to the issues before the Court.
[4] The first issue to be decided with respect to the production of the records is this: Is production of these records governed by the principles set out in R. v. Stinchcombe[^2] (i.e. first party disclosure) or R. v. O’Connor[^3] (i.e. third party disclosure)? For the reasons set out below, I am of the view that such records are producible pursuant to Stinchcombe, supra.
[5] I adopt the reasoning of the Court of Appeal in R. v. Quesnelle[^4]. I share its view that the type of information to be protected by the regime set out in O’Connor (and sections 278.1 to 278.9 of the Criminal Code) is information that is “intimate information about one’s identity and lifestyle, of the type disclosed in the context of a trust-like, confidential, or a therapeutic relationship” and “the type of information an individual would seek to withhold from the state”[^5].
[6] In this case, it cannot be said there is a reasonable expectation of privacy in the records. When a complainant, such as this one, speaks to the police, she is not doing so in the context of a confidential relationship. The complainant is providing information to the state for the purpose of an investigation and possible criminal charges, following which the statement and other documents generated will be disseminated as part of disclosure. Put simply, police records such as occurrence reports are not private records that should be protected by the O’Connor, supra, regime.
[7] For these reasons, I find that the Crown is required to produce the records generated by the police in accordance with Stinchcombe, supra. The records will be subject to the same screening process undertaken by the Crown prior to disclosure being made in any prosecution. As such, the records will be produced subject to the appropriate redactions, resolution of any privilege claims and relevance.
Kelly J.
Released: April 16, 2013
COURT FILE NO.: CR13-300000-62-00
DATE: 20130416
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and -
L.M.N.
Respondent
- and -
W.Y.
Applicant
Ruling re: Third Party Records
Kelly J.
Released: April 16, 2013
[^1]: Specifically, the Applicant is charged with the aggravated assault, three counts of assault causing bodily harm, one count of assault with a weapon and three counts of assault contrary to the Criminal Code, R.S.C. 1985, c. C-46.
[^2]: (1995), 1995 130 (SCC), 96 C.C.C. (3d) 318 (S.C.C.)
[^3]: (1995), 1995 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.)
[^4]: 2013 ONCA 180 (Ont. C.A.)
[^5]: See: R. v. Mills, 1999 637 (SCC), [1999] 3 S.C.R. 668 (S.C.C.) and R. v. Quesnelle, supra, at para. 32