Supreme Court Affirms Protection for Private Records: R v Quesnelle

This summer in R v Quesnelle, 2014 SCC 46, the Supreme Court of Canada held that police occurrence reports that relate to complainants or witnesses in sexual offence cases, and that are not directly related to charges an accused is facing, are subject to the Mills regime. As such, these records may only be released if they are “likely relevant” and disclosure is in the “interests of justice.”

The Legislative Scheme

Sections 278.1 to 278.91 of the Criminal Code contain the procedure for the disclosure of private records in the context of sexual offences. The regime was created by Parliament in response to the trend of defendants seeking to obtain such records to attack the credibility of witnesses and complainants. This legislative scheme has been called the “Mills regime” as its constitutionality was upheld in R v Mills, [1999] 3 SCR 668. As stated by the Court, the “regime reflects Parliament’s intention to accommodate and reconcile the right of the accused to make full answer and defence with the privacy and equality rights of complainants in sexual offence cases.”

If a record contains personal information for which there is a “reasonable expectation of privacy,” the regime applies. A list of exemptions is included in section 278.1 of the Code. Once the Crown receives a record subject to the Mills regime, it must inform the accused and provide an opinion on its possible relevance and the basis for this assessment. Such records can only be disclosed upon application by the accused. The records must be held to be “likely relevant” and their disclosure must be necessary in the “interests of justice.”

Facts

Mr. Quesnelle was charged with sexually assaulting two individuals. One of the complainants was involved with prior unrelated police occurrence reports. These reports generally contain notes and police observations regarding various incidents. As the Court notes, these can contain information regarding anything from disturbances to car accidents and may contain highly sensitive information such as prior allegations of sexual assault.

At trial, Justice Thorburn held that the reports were records under the Mills regime because they contained information for which there was a “reasonable expectation of privacy” and they did not fall into any one of the listed exemptions. Furthermore, she denied Mr. Quesnelle’s application for disclosure and he was ultimately convicted. However, the Court of Appeal held that these police records had information for which there was no reasonable expectation of privacy. Furthermore, in any case, section 278.1 of the Code exempts all records prepared by the police regardless of their relevance and a new trial was ordered.

Analysis

The Supreme Court of Canada had to decide whether police occurrence reports were “records” as defined in the Mills provisions. Mr. Quesnelle argued that these records should have been released through the Crown’s duty to “disclose all relevant, non-privileged information in its possession or control so as to allow the accused to make full answer and defence” as outlined in R v Stinchcombe, [1991] 3 SCR 326. Moreover, as stated by the Court in R v McNeil, [2009] 1 SCR 66, the Crown must not be passive in carrying out this duty.

Writing for the Court, Justice Karakatsanis agreed that the Mills regime did not obviate the Crown’s duties to disclose. However, she held that unrelated police occurrences reports are “records” within the definition of section 278.1 of the Code and therefore subject to the Mills regime. In her view, the concept of reasonable expectations of privacy is “not an all or nothing concept.” Moreover, there are tangible harms associated with the release of this information that may discourage complainants in future cases from coming forward. All in all, she held that individuals have a reasonable expectation that personal information in police records will not be disclosed in unrelated matters.

Additionally, carrying out a statutory interpretation analysis of the Mills regime, she rejected the argument that section 278.1 “excludes all documents made by third parties simply because they were placed in the investigative or prosecution file.” While the section states that a “record… does not include records made by persons responsible for the investigation or prosecution of the offence,” after looking at the purpose and context of the provision Justice Karakatsanis held that the exemption applies to records “only in relation to the offence being prosecuted.” As such, in her view, the Court of Appeal should not have interfered with the trial judge’s decision. Justice Karakatsanis restored the conviction entered by Justice Thorburn and remitted Mr. Quesnelle’s sentence appeal to the Court of Appeal.

All in all, the Court made a statement about the appropriate disclosure of sensitive records. As stated by Justice Karakatsanis, 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.” While the scheme’s constitutionality was not at issue in this case, the Supreme Court has interpreted the Mills regime in a way that preserves Parliament’s intention to preclude the inappropriate use of records.