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The Supreme Court of Canada (SCC) recently released a decision respecting the disclosure of evidence in criminal cases. In R. v. Quesnelle, the SCC was asked to determine the nature of police occurrence reports and whether their disclosure in a sexual offence case was properly refused at trial.

In this case, the accused, Quesnelle sought to obtain disclosure of previous police occurrence reports relating to one of the complainants. Information that may relate to a complainant or a witness in sexual offence cases is subject to the Mills regime, contained in sections 278.1 – 278.91 of the Criminal Code. The SCC found that occurrence reports that do not deal with the matter being investigated or prosecuted are “records” for the purposes of this regime. As such, the accused must apply for disclosure and the judge will review the records to determine if these are relevant and disclosure is in the interests of justice.

This regime aims to balance the privacy interests of complainants and witnesses with the right of the accused to make a full answer and defence.

Disclosure of evidence has been recognized in a number of SCC decisions as an essential component to the right of an accused to make a full answer and defence protected under s. 7 of the Canadian Charter of Rights and Freedoms. Generally the Crown bears an onus to disclose relevant information to the accused or, at least to give notice that such information exists though it may be held by third parties. In McNeil (2009) the SCC also found that the police have a duty “to disclose, without prompting, “all material pertaining to its investigation of the accused” as well as other information “obviously relevant to the accused’s case.”

However, in this case the SCC found that complainants and witnesses had a reasonable expectation of privacy in the information contained in police occurrence reports and would not expect that information to be disclosed to undermine their credibility in an unrelated case.

What can police forces take away from this decision?

The obligation to disclose evidence is limited to material relating to the case under investigation or that is being prosecuted. The police should inform the Crown of any information it has regarding the accused or that relates to any aspect of the case. However the courts will decide if information held by the police or third parties that may relate to the accused, a complainant or a witness is relevant to the matter at hand and, where appropriate, order the disclosure of this information. Police occurrence reports are records containing personal and private information that should be used only for the purposes for which they were created.


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This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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