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Summary

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Criminal law - Evidence - Disclosure - Whether the definition of “record” in the statutory regime under ss. 278.1 to 278.91 of the Criminal Code includes a police “occurrence report” which refers to a witness, but is unrelated to the offence(s) being prosecuted - In cases where the statutory regime is inapplicable, whether the Crown has a duty under Stinchcombe to obtain and disclose a “police occurrence report” which refers to a witness, but is unrelated to the offence(s) being prosecuted - Criminal Code, R.S.C. 1985, c. C-41, s. 278

Mr. Quesnelle was charged with assault, sexual assault, sexual assault with a weapon, robbery, threatening to kill, and threatening serious bodily harm. Mr. Quesnelle denied all charges against him. The case turned on credibility. As part of a radio documentary, the complainant and a police detective were interviewed. In the broadcast, the detective indicated that she reviewed the complainant’s police file in preparation for the trial and referred to a number of other police occurrence reports relating to the complainant. Mr. Quesnelle sought disclosure of all police occurrence reports reviewed by the police that pertained to the complainant. The issue in question was whether police-made occurrence reports that are unrelated to the specific offence being prosecuted but involving the same witness ought to be disclosed in accordance with the statutory protections set out in s. 278.2 of the Criminal Code or, alternatively, with the lower threshold for disclosure regime set out in R. v. Stinchcombe. Section 278.2 of the Criminal Code governs the production of “records” in offences of a sexual nature and provides that no record relating to a complainant or witness shall be produced to an accused in any proceedings in respect of offences of a sexual nature except in certain circumstances. The trial judge determined that the application must be brought pursuant to s. 278.2 of the Criminal Code as there was a reasonable expectation of privacy in those reports and the only exception was for records pertaining to the offence in question. The request for production of the reports was however ultimately denied as it was found that there was no evidentiary basis upon which to conclude that the documents requested were likely relevant or that their production was necessary in the interest of justice.

Mr. Quesnelle was convicted by a judge and jury of two charges of simple assault and two charges of sexual assault. The Court of Appeal found that the police occurrence reports did not qualify as “records” for the purpose of s. 278.2 and that the reports are part of the “fruits of the investigation” and are producible under Stinchcombe as part of the Crown’s disclosure obligations. Mr. Quesnelle’s appeal was allowed and a new trial was ordered.

Lower Court Rulings