DATE: 20210505
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.L.
A. Linds, for the Crown
M. Sengupta-Murray, for L.L.
HEARD: 26 April 2021
RESTRICTION ON PUBLICATION: Subject to any further Order by a Court of competent jurisdiction, pursuant to s. 486.4(1) of the Criminal Code no person shall publish any document, or broadcast or transmit in any way the contents of the application record in this matter, the evidence taken and representations made, which could identify the victim or a witness in this matter. This order does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. This ban does not apply to publication of these reasons in law reports nor to a discussion of the underlying legal principles in other publications.
s.a.Q. akhtar j.
RULING ON DISCLOSURE MOTION
FACTUAL BACKGROUND AND OVERVIEW
Introduction
[1] L.L. is charged with two counts of sexual assault which allegedly occurred in summer/autumn 2017 and November 2019.
[2] On 23 November 2019, whilst the complainant was asleep at the applicant’s home, she was woken by the applicant’s phone. Checking the phone’s notifications, the complainant discovered text messages sent by another woman.
[3] She woke the applicant telling him that she was leaving. In response, the applicant forced the complainant against a wall and raped her from behind. Afterwards, both of them showered together.
[4] Before leaving, the complainant asked the applicant to delete all intimate images of them on his phone but he refused. The complainant departed telling the applicant that he would not see her again.
[5] On 23 December 2019, the complainant reported the sexual assault to police. On 5 May 2020, she provided a detailed account of the events of 23 November 2019 as well as disclosing an additional sexual assault that had occurred sometime in the summer or autumn of 2017 in a parking lot in Toronto.
The Requested Disclosure
[6] After the breakdown of the relationship on 23 November 2019, the police were contacted on four different occasions by the complainant and the applicant. The applicant requests the occurrence reports and investigative notes in relation the following incidents:
• On 24 November 2019, the complainant contacted police to request assistance in retrieving her belongings and money from the applicant’s residence. She told the police that she had broken up with the applicant because of his lies and infidelity. She also communicated her worries that the applicant had not deleted intimate images she had sent to him during the relationship. Due to the lateness of the hour and the lack of lights in the home, officers chose not to knock on the applicant’s door.
• Some time between 23 November 2019 and 23 December 2019 the complainant attended the applicant’s home with the police. According to an I/CAD event report made on 22 December 2019 there had been a domestic report taken about two weeks prior. Neither the complainant nor the applicant recalls the exact date of the incident although the applicant remembers the complainant showing up with the police at his residence.
• On 22 December 2019, the applicant complained to the police about the complainant harassing him. This incident was noted by the police when they met with the complainant on 23 December 2019 and the sexual assault allegations were disclosed. The complainant denied the allegations telling the police that the applicant’s girlfriend was harassing her and that she had received a picture of someone holding a gun.
• On 23 December 2019, when being visited by officers regarding allegations of criminal harassment by the applicant and his girlfriend, the complainant disclosed the sexual assault alleged to have occurred on 23 November 2019. The complainant only provided full details of the assault in her video statement on 5 May 2020.
[7] The applicant submits that these incidents form first party disclosure guaranteed under the Charter of Rights and Freedoms by the rules in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326.
The Failure to Elect
[8] As a preliminary point, there remains the issue of jurisdiction to make an order requested by the defence. I accept that as a court of inherent jurisdiction I am able to grant the applicant’s application. However, I do not agree with the manner in which the applicant has proceeded.
[9] This matter remains at the Ontario Court of Justice awaiting an election for mode of trial and the setting of a hearing date. The applicant submits that he requires disclosure of the items that are the subject matter of this application prior to making his election pursuant to the principles set out in R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.).
[10] I disagree. Girimonte made clear, at para. 17, that initial disclosure had to be provided before the accused was required to elect or plead so that the accused could make “an informed decision as to the mode of trial and the appropriate plea.” The court recognised the reality that in the initial stages, disclosure will rarely be complete. What is required is sufficient disclosure to allow an accused to make an informed decision about election.
[11] In this case the accused had more than enough information to make an informed decision, having received the complainant’s videotaped statement which set out in detail the allegations that he faced.
[12] In R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, and R. v. Cody, 2017 SCC 31, [2017] 1 S.C.R. 659, a new regime was created governing unreasonable delay in the criminal process. At paras. 137-138 of Jordan, the court expressed its view that all players must play a part in ensuring that delay is avoided when setting hearing dates for criminal matters.
[13] Here, the defence could and should have made its election without the disclosure it now seeks to obtain. There was no reason to delay matters pending the outcome of this application. Accordingly, in my view, that election should be made by or on the next appearance date.
Do the Materials Constitute Disclosure or Third Party Records?
[14] The central dispute in this application rests upon the characterisation of the occurrence reports sought by the applicant.
[15] As noted, he submits they constitute first party disclosure and should be provided pursuant to Stinchcombe. The Crown, on the other hand, argues that the reports and accompanying investigative materials are third party records as defined by s. 278.1 of the Criminal Code, R.S.C. 1985, c. C-46 and, as such are subject to the regime set out in s. 278.3 of the Code.
[16] Section 278.1 of the Criminal Code defines “records” in the following manner:
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.
[17] The question of whether an occurrence report or other investigative document falls within the third party records regime was discussed in R. v. Quesnelle, 2014 SCC 46, [2014] 2 S.C.R. 390. There, the court held that, in general, third party records unrelated to the case should be the subject of an application outlined in s. 278.3 of the Criminal Code. As explained by the Court, at para. 17, “[t]he 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.”
[18] The Court found that even records that gave rise to a reasonable expectation of privacy would not be subject to the Criminal Code regime if they fell into the exception set out in s. 287.1 that exempts “records made by persons responsible for the investigation or prosecution of the offence.”
[19] The operation of the s. 278.3 regime was summarised, at paras. 54-56 of Quesnelle:
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.
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.
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.
[20] The Court’s concern, it seems, was for records unrelated to the offence and where a reasonable expectation of privacy existed.
[21] In R. v. Jackson, 2015 ONCA 832, 332 C.C.C. (3d) 466, at para. 82, the court described Stinchcombe disclosure as extending only to material in the possession of the Crown that is relevant in that it is “related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence”. See also: R. v. Gubbins, 2018 SCC 44, [2018] 3 S.C.R. 32, at para. 22.
[22] For the following reasons, I find that the investigative materials sought by the applicant constitute first party disclosure and are subject to Stinchcombe rules.
[23] First, it is clear that when investigating the sexual assault offences, the police looked at the prior history between the complainant and the applicant, as might be expected. This is shown by reference to the previous incidents in the police synopsis provided to the Crown and subsequently to the defence. Indeed, it would be extremely unusual for the police not to check to see what, if any, prior complaint history existed between the two parties.
[24] Secondly, the four incidents are not separate and distinct from the allegations, but rather are events intertwined with them. The first occurrence report happened on the day after the sexual assault was supposed to have occurred. The next set of occurrence reports dealt with allegations of harassment by both the complainant and the accused which led to the sexual assault allegations being disclosed in the final incident in December 2019.
[25] A review of the occurrences makes it apparent that these occurrence reports and accompanying police material are related to the allegations made on 23 December 2019.
[26] The fact that the police saw fit to search for and reference the occurrences makes them fruits of the investigation in this case. As described in Jackson, at para. 92:
The descriptive "fruits of the investigation" accurately captures the subject-matter of first party/Stinchcombe disclosure. The term embraces relevant, non- privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make full answer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet.
[27] Finally, the Crown’s submission that the material carries with it a reasonable expectation of privacy carries little weight in this case. The complainant reported harassment allegations to the police in the expectation that charges would be laid. That did not happen because after hearing a voice recording that the complainant alleged to be harassment, the police declined to proceed. Moreover, one of the reports sought by the applicant is his own complaint to the police. The entire subject matter is the dispute and acrimony that existed between the parties - reports created because one side or the other wanted the police to intervene. Viewed through this lens, the complainant could hardly have expected the reports to remain secret or carry a reasonable expectation of privacy.
[28] For these reasons, I find that the material sought by the applicant falls within the Stinchcombe parameters and should be disclosed by the Crown in a timely fashion.
S.A.Q. Akhtar J.
Released: 5 May 2021
DATE: 20210505
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
L.L.
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.