Court File and Parties

COURT FILE NO.: CR-19-1409

DATE: 2019-11-12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Y.S.

BEFORE: Stribopoulos J.

COUNSEL: Ms. J. Vlacic, for the Crown / Respondent

Mr. E. Mehrabi, for the Accused / Applicant

HEARD: October 11, 2019

ENDORSEMENT

Introduction

[1] The indictment charges Mr. S. with ten offences, all involving the same complainant, D.H.P. The allegations span a period commencing November 1, 2015, and ending February 4, 2018.

[2] Many of the offences charged are amongst those listed in s. 278.2(1)(a) of the Criminal Code, including s. 271 (sexual assault), s. 279.01(1) (trafficking in persons), s. 279.03(1) (withholding or destroying documents), s. 286.2(1) (obtaining a material benefit from sexual services), and s. 286.3(1) (procuring).

[3] The Crown will be applying to introduce “similar-fact” evidence at Mr. S.’s trial. The police memorialized that evidence during four separate investigations, including through witness statements, police notes, and occurrence reports.

[4] The question addressed in this brief endorsement is whether Mr. S. is entitled to disclosure of that evidence or if he must bring an application to compel its production.

The Issue in Context

[5] The critical issue at trial will be the nature of the relationship between Mr. S. and D.H.P. The Crown alleges that over a period that lasted slightly more than two years, Mr. S. systematically subjugated D.H.P under his authority to exploit her within the sex trade. In contrast, Mr. S. maintains that he was involved in nothing more than a romantic relationship with D.H.P.

[6] Over the same period that Mr. S. is alleged to have committed the offences charged in the indictment, on at least four separate occasions, D.H.P. was in contact with the police. During these interactions with police, D.H.P. made allegations against Mr. S. that led to his arrest and prosecution.

[7] At trial, the Crown hopes to elicit evidence from D.H.P. regarding the four prior incidents she reported to police that resulted in Mr. S. being arrested and prosecuted. These reports preceded Mr. S.'s arrest for the charges he is currently facing. The Crown contends that these incidents are integral to the narrative, to understanding the exploitative dynamic that existed between Mr. S. and D.H.P.

[8] The four incidents are not amongst the charges in the indictment, as each led to separate prosecutions. Therefore, these incidents are presumptively inadmissible: see R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 31. In seeking to introduce evidence of these four incidents at trial, the Crown will argue that their probative value outweighs their prejudicial effect.

[9] Mr. S. has requested disclosure of all materials in the Crown’s possession or control relevant to the four similar-fact incidents. Specifically, he has asked for (1) any statements given by D.H.P. to police during their investigations of these incidents; (2) any notes made by the investigating police officers who were responsible for taking her statements; and (3) any associated police occurrence reports. Although the Crown informed Mr. S. that it possesses these materials, it has declined to disclose them.

Positions of the Parties

[10] The Crown takes the position that the materials Mr. S. requested by way of disclosure qualify as “records” under s. 278.1. Given that several of the offences charged are amongst those listed in s. 278.2(1)(a), the Crown maintains that to gain access to the similar-fact materials, Mr. S. is required to bring an application to compel their production under s. 278.3 of the Criminal Code: see R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668.

[11] In contrast, Mr. S. takes the position that because the Crown intends to introduce evidence regarding these prior incidents, it has a constitutional obligation to provide disclosure of any information in its possession or control that is likely relevant to the similar-fact evidence: see R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.

Analysis

[12] The disagreement between the parties results from their differing interpretations of the Supreme Court of Canada’s decision in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390. In Quesnelle, the accused was facing charges of sexually assaulting two complainants. He sought disclosure of police occurrence reports involving one of the complainants. Unlike this case, in Quesnelle, the Crown was not planning on eliciting evidence at the trial memorialized in the police occurrence reports.

[13] In Quesnelle, the Supreme Court provided guidance on the proper interpretation of s. 278.1 of the Criminal Code. That section reads:

278.1 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.

[emphasis added]

[14] The Supreme Court recognized that police occurrence reports can sometimes contain highly personal information. For example, details about a person’s family status, their personal health information (i.e. their mental health, drug and alcohol use), housing and employment, personal conflicts and relationship details. Such reports will often reveal the extent of an individual’s engagement with the criminal justice system. This can include previous instances where an individual has been the victim of criminal activity, including sexual assaults: see Quesnelle, at paras. 31-33. Accordingly, the Supreme Court observed, “that there will generally be a reasonable expectation of privacy in police occurrence reports”: Quesnelle, at para. 44.

[15] Given this, the Supreme Court clarified in Quesnelle that police occurrence reports may qualify as a “record” under s. 278.1. If an offence listed in s. 278.2(1)(a) is charged, the accused who wants to access a police occurrence report may be required to bring a production application under s. 278.3. Whether or not the occurrence report comes within the exemption to what qualifies as a “record” under s. 278.1 is key. That section provides that a record “does not include records made by persons responsible for the investigation or prosecution of the offence.” (emphasis added)

[16] The Supreme Court in Quesnelle explained that because of the exemption 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”: Quesnelle, at para. 56 (emphasis added). As a result, “[t]here is no need to consider such records under the second step of Mills because they will always be produced anyway”: Quesnelle, at para. 56. In contrast, “for records unrelated to the offence at issue, the balancing exercise [under s. 278.5(2)] will often have important work to do”: Quesnelle, at para. 56 (emphasis added).

[17] To be sure, a convenient and efficient means for assessing whether or not particular information is subject to disclosure will often be if police collected it during their investigation of the offences for which the accused faces charges. But this alone is not determinative. The police are also under a positive obligation to furnish the Crown, who has a corresponding duty to disclose to the accused, any additional information that is obviously relevant to the accused’s case. This includes “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”: R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 35, at para. 23 (emphasis added). See also R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at paras. 25, 59.

[18] The Supreme Court’s decision in Quesnelle should not be understood as detracting from the Crown’s well-established disclosure obligations under Stinchcombe. In recognizing the importance of privacy in police occurrence reports, the Supreme Court was careful to point out that the exemption found s. 278.1 did not reach unrelated police occurrence reports. At the same time, it also made clear that, “Where the Crown plans to use information from police occurrence reports as part of its case against an accused, disclosure of that information will always be in the interests of justice”: Quesnelle, at para. 63 (emphasis added).

[19] The circumstances in Quesnelle illustrate the difference. The police occurrence reports that implicated the complainant’s privacy interests in Quesnelle neither formed part of the investigative file nor part of the case the accused had to meet. Unlike the prosecution of Mr. S., the Crown in Quesnelle was not relying on information from the prior occurrence reports to support its case against the accused. Given this, in Quesnelle, if the accused wanted to obtain unrelated occurrence reports, his only recourse was to bring an application to compel production under s. 278.3.

[20] In Mr. S.’s case, where the Crown intends to proffer evidence memorialized in witness statements, police notes, and occurrence reports, as part of its case, there is nothing to be gained and much to be lost in requiring the accused to bring an application under s. 278.3 to compel production of such materials.

[21] Given that the Crown intends to introduce the evidence at trial, even if a Mills application were necessary, the balancing of interests required by s. 278.5(2) would make an order for production inevitable. The Crown readily acknowledged this during submissions.

[22] From a practical standpoint, requiring an accused to apply for the production of evidence that the Crown intends to use as part of its case against him also comes at a real cost. Judicial resources are already stretched thin, and there are ever-increasing concerns about delays in the criminal justice system. Production applications consume precious time and resources.

[23] More importantly, there is no principled justification for requiring an accused to bring an application to compel the Crown to produce evidence that it is planning to use against him at trial. In the post-Stinchcombe era, the Crown is constitutionally obligated to provide disclosure of such evidence.

[24] Accordingly, an application for production under s. 278.3 is unnecessary for Mr. S. to obtain disclosure of information in the Crown’s possession or control likely relevant to the similar-fact evidence it will be applying to introduce against him at his trial.

Conclusion

[25] This court orders that the Crown disclose to Mr. S. all materials and information in its possession or control likely relevant to the similar-fact evidence that it will be seeking to introduce at his trial.

Signed: Stribopoulos J.

Released: November 12, 2019