R. v. Quesnelle

R. v. Quesnelle Collection Decisions of the Court of Appeal Date 2013-03-26 Neutral citation 2013 ONCA 180 Docket numbers C53116 Judges Rosenberg, Marc; Sharpe, Robert J.; MacFarland, Jean Louise Subject Criminal Decision Content WARNING The President of the panel hearing this appeal directs that the following should be attached to the file: An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide: 486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (a) any of the following offences; (i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347, (ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or (iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or (b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii). (2) In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall (a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and (b) on application made by the complainant, the prosecutor or any such witness, make the order. (3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way. (4) An order made under this section 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. 2005, c. 32, s. 15; 2005, c. 43, s. 8(3)(b). 486.6 (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction. (2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15. COURT OF APPEAL FOR ONTARIO CITATION: R. v. Quesnelle, 2013 ONCA 180 DATE: 20130326 DOCKET: C53116 Rosenberg, Sharpe and MacFarland JJ.A. BETWEEN Her Majesty the Queen Respondent and Vincent Quesnelle Appellant Najma Jamaldin and Paul Genua, for the appellant Janet MacEachen, as amicus curiae Christine Bartlett-Hughes, for the respondent Heard: December 21, 2012 On appeal from the conviction entered on June 4, 2010 by Justice Julie A. Thorburn of the Superior Court of Justice, sitting with a jury, and from the sentence imposed on July 27, 2010, with reasons reported at 2010 ONSC 3713. MacFarland J.A.: A. OVERVIEW [1] The appellant appeals his conviction on two counts of sexual assault and two counts of assault, entered after his trial before a judge and jury. He also appeals his sentence. [2] The critical question raised by this appeal is whether, in the context of a prosecution of an alleged sexual assault, an occurrence report prepared by police on an unrelated incident involving a complainant is subject to the disclosure regime set out in s. 278.2 of the Criminal Code, R.S.C. 1985, c. C-46. The answer to this question turns on whether such an occurrence report can be characterized as a “record” within the meaning of s. 278.1 – namely, one that “contains personal information for which there is a reasonable expectation of privacy” but was not “made by persons responsible for the investigation or prosecution of the offence.” B. THE FACTS [3] The appellant was charged with assault, sexual assault, sexual assault with a weapon, robbery, threatening to kill, and threatening serious bodily harm. The charges stem from two separate incidents involving two complainants: T.R., on December 29, 2006, and L.I., on March 5, 2007. [4] There are many similarities between the evidence given by T.R. and L.I. about the alleged assaults. Both complainants were addicted to drugs. They each gave similar descriptions of the appellant in their trial testimony. The appellant drove both complainants in a dirty, beige or copper-coloured van to the rear entrance of a laundry facility in a shopping plaza. The appellant led them both downstairs to a basement containing a dirty mattress. He used drugs and encouraged them both to use drugs prior to the assaults. The appellant also punched both women, and then forced anal intercourse on them. He told both women that he was a member of the Hell’s Angels, and expressed a preference for sexual activity by force. Finally, he dropped both women off at a bus stop in the same general neighbourhood after he committed the assaults. [5] The appellant denied all charges against him. This clearly was a case that turned on credibility. The versions of events attested to by the complainants bore little resemblance to the version of events described by the appellant. He says the sex with L.I. was consensual, although there was a disagreement on the price after the fact. He denies having sex of any description with T.R. on December 29, 2006. [6] At the conclusion of his trial, the jury convicted the appellant of two charges of simple assault and two charges of sexual assault. He appeals his conviction and his sentence. C. ISSUES [7] The appellant raises three grounds of appeal with respect to his conviction. 1. The trial judge erred in allowing the Crown’s application to adduce similar fact evidence and in disallowing the appellant’s severance application; 2. The trial judge erred in admitting into evidence a statement made by the appellant to the police that was made without first speaking to counsel; 3. The trial judge erred in holding that access to occurrence reports and related materials is governed by the production regime set out under s. 278.1 to 278.9 of the Criminal Code. [8] The Crown was called upon to respond only to the second and third grounds of appeal. D. ANALYSIS (1) Did the trial judge err in allowing the Crown’s application to adduce similar fact evidence and in disallowing the appellant’s severance application? [9] The first ground of appeal can be dealt with summarily. Prior to the trial, the Crown joined the counts involving T.R. and L.I. and applied to have the evidence of each complainant admitted as similar fact evidence. The defence opposed the application and applied to sever the counts. The trial judge allowed the similar fact application and denied the severance application. The appellant argues that she erred in doing so. [10] I disagree. The arguments raised on the similar fact and severance applications were matters for the trial judge’s discretion, based on the evidence before her. In her careful reasons, the trial judge considered the law in relation to similar fact evidence and applied it to the facts before her. She thoughtfully weighed the risk of prejudice to the accused against the probative value of the evidence. She concluded that: … the Crown has discharged the onus of establishing on a balance of probabilities that [the similar fact evidence’s] probative value outweighs its undoubted prejudice. The acts complained of and the surrounding circumstances leading to and following those acts contain a high degree of similarity such that the likelihood of coincidence is objectively improbable. [11] Similarly, on the appellant’s severance application, the trial judge referenced the appropriate Criminal Code provisions and the authorities on severance and applied them to the evidence before her. She concluded that, although there was a risk of prejudice to the accused, there were “compelling countervailing reasons for having a joint trial.” [12] A trial judge’s decision to admit similar fact evidence is owed substantial deference by an appellate court: R. v. Handy, 2002 SCC 56, [2002] 2 S.C.R. 908, at para. 153. Deference is likewise afforded to a trial judge’s ruling on severance, so long as he or she acts judicially and the ruling does not result in an injustice: R. v. Last, 2009 SCC 45, [2009] 3 S.C.R. 146, at para. 14. In light of the applicable standards of review, it is my view that there is no basis for this court to interfere with the trial judge’s decisions. (2) Did the trial judge err in admitting into evidence a statement made by the appellant to the police that was made without first speaking to counsel? [13] Prior to trial, the appellant brought an application seeking to exclude a videotaped statement he gave to police on March 5, 2007. The trial judge denied his application. The appellant now argues that she erred in doing so. He says that his statement to police was involuntary, that it was the product of inducements, that the police denied him his right to consult with counsel at the station, and that his statement ought not to have been admitted into evidence. [14] The parties’ positions on the original application are aptly summarized by the trial judge in her reasons for denying the appellant’s application: The Appellant says that, while he had been advised four times of his right to counsel and cautioned that anything he did say could be used against him in court, he asked to speak to counsel twice before giving his statement and was denied the opportunity to exercise that right. He submits that police encouraged him to speak to them before he had a chance to speak to a lawyer. They suggested that they did not believe the Complainant’s story and that if he spoke to the Lead Detective and gave his version of events, he would be home by supper that day and would not be charged. Officer Dizon told him that if he “lawyered up” he would go to jail. The Crown submits that the Applicant’s statement to police was voluntary as the Applicant had been read his right to counsel and cautioned four times before giving his videotaped statement. Before arriving at the station, the Applicant had indicated he wanted to speak to a lawyer. However, once at the station, after being told by the Sergeant that he could speak to a lawyer, he shrugged his shoulders and said he just wanted to speak to the Detective as he had done nothing wrong. He was fully aware that any statement could be used against him in court. He confirmed the waiver of his right to counsel at the outset of the videotaped statement to police. [15] The trial judge carefully considered the evidence before her. She rejected the appellant’s evidence, and accepted the evidence of the interrogating officers. She concluded that neither officer told the appellant to speak to them without counsel, or used promises or inducements to compel the appellant to make a statement. Her conclusion in this regard is amply supported by the evidence she accepted. [16] The trial judge also concluded that the appellant was well-aware of his right to speak to counsel before he said anything to police. It is worth noting that the appellant was videotaped saying he did not need to speak to a lawyer so long as he had only been arrested, not charged. The relevant exchange between the appellant and the interrogating officers is as follows: Officer: “I am gonna caution you again we’ve already, we did this, I just want to make sure just to get it on the record that is.” Appellant: “I have the right to a lawyer.” Officer: “Yes exactly.” Appellant: “That I am waiving it.” … Appellant: “If I’ve just been arrested for this crime, just a minute, I mean, I have no problems talking with, if you’re charging me with it I want to speak to a lawyer please. Officer: “At this stage of the game you’ve just been arrested.” Appellant: “Okay.” Officer: “Okay, depending on the results here.” Appellant: “That’s fine.” Officer: “That will make the determination here, okay and oh do you wish to call a lawyer now?” Appellant: “No.” Officer: “Okay I’m just going to tell you, you don’t have to say anything to us. Anything you say I can use against you in court.” Appellant: “That’s fine.” [17] In my view, the trial judge’s determination was based on the evidence before her and there is no basis on which this court should interfere. The determination of whether a statement is voluntary is a question of fact, or mixed fact and law, and is thus owed deference, provided the trial judge considers all of the relevant circumstances and properly applies the law: see R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 22; R. v. Spencer, 2007 SCC 11, [2007] 1 S.C.R. 500, at paras. 16-17. I would not give effect to this ground of appeal. (3) Did the trial judge err in holding that access to occurrence reports is governed by the production regime set out under s. 278.2 of the Criminal Code? (a) Facts and the decision below [18] The issue relating to the occurrence reports arose from a radio documentary created about T.R. and the prosecution of certain alleged assaults against her. It was aired after the incident but before the trial. As part of the documentary, radio personnel interviewed both T.R. and one of the detectives who assisted in her case. In the broadcast, the detective says that she reviewed T.R.’s police file in preparation for the trial. She says she came across “four or five occurrences in relation to sexual assaults”. She said all were violent and involved weapons or being punched in the face. [19] When the defence learned from the radio documentary of the occurrence reports involving T.R., it brought a disclosure application to obtain them from the Crown. The central issue raised by that proceeding, and again in this appeal, is whether police-made occurrence reports that are unrelated to the specific offence being prosecuted but involve witnesses ought to be disclosed in accordance with s. 278.2 of the Criminal Code or, alternatively, with the regime set out in R. v. Stinchcombe, [1991] 3. S.C.R. 326. [20] In its application, defence argued that production of occurrence reports should be made in accordance with the Stinchcombe disclosure regime, which in essence requires the Crown to produce all relevant non-privileged information over which there is no privacy interest. The Crown argued that Stinchcombe did not apply because the information sought was personal information of a complainant in a proceeding wherein a sexual assault is alleged. Thus, the Crown submitted, the disclosure application should have been brought in accordance with the statutory protections set out in s. 278.2 of the Criminal Code. [21] The trial judge concluded that the occurrence reports were “records” within the meaning of s. 278.1 and were subject to the disclosure regime in s. 278.2. In her reasons, she noted: In this case, the police occurrence reports contain recorded information about the Complainant, including her knowledge or involvement in criminal activity. Such documents contain personal information protected by provincial legislation. As such, there is a privacy interest in those documents. “Record” as defined in s. 278.1 of the Criminal Code does not include “records made by persons responsible for the investigation or prosecution of the offence.” Toronto Police Services is a “person” pursuant to section 2 of the Code in which “person” is defined to include Her Majesty and an organization. As such, a “record” does not include records made by the Toronto Police Service for the investigation of this offence. The exclusion does not extend to all records in the possession of the person responsible for the investigation but only records for the investigation of the offence in question. The words “records made by persons responsible for the investigation or prosecution of the offence” must be limited by “the” offence at issue. She concluded: In my view, the wording of section 278 is clear. The Application must be brought pursuant to section 278.2 of the Criminal Code, as in this case, there is a reasonable expectation of privacy and the only exception is for records pertaining to the offence in question. [22] As the Crown has noted in her factum, the trial judge’s interpretation suggests that “any records made by the investigating police service that are not made in relation to the offence are covered under s. 278, even if they are accessed by the investigating officer and made part of the fruits of the investigation.” (b) The trial judge erred in holding that access to occurrence reports is governed by s. 278.2 [23] In my view, whether or not these occurrence reports are subject to disclosure pursuant to s. 278.2 is a matter of statutory interpretation. The Criminal Code provides a definition of a “record” for the purposes of ss. 278.2 to 278.9: 278.1 For the purposes of sections 278.2 to 278.9, “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, 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]. [24] I recognize that the preponderance of trial level decisions on this point adopts the view that police occurrence reports involving a complainant or a witness which are unrelated to the particular offence at issue are records “for which there is a reasonable expectation of privacy”. Such authorities have, in general, held that the exclusionary phrase at the end of the definition in s. 278.1 – “but does not include records made by persons responsible for the investigation or prosecution of the offence” – relates only to occurrence or investigation reports made in relation to the offence at issue. The courts have held that this phrase does not include police investigations or occurrence reports prepared in relation to unrelated matters involving the complainant or witnesses: see, for example, R. v. McAdam (2008), 172 C.R.R. (2d) 27. [25] As a matter of statutory interpretation, I cannot agree with the trial judge’s conclusion or the weight of the judicial authority to this point. In my view, the object of s. 278.2 and the intention of Parliament, as well as the words of s. 278.1 read in their grammatical and ordinary sense, indicate that police-made occurrence reports are excluded from the application of the s. 278 regime. [26] The Supreme Court of Canada instructs us that today there is but one principle of statutory interpretation: Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.[1] [27] In considering the “scheme of the Act, the object of the Act, and the intention of Parliament”, it is helpful to reference the preamble of the Bill adding the new disclosure regime to the Criminal Code: see Bill C-46, An Act to amend the Criminal Code (production of records in sexual offence proceedings), 2nd. Sess, 35th Parl. 1997 (assented to 25 April 1997). [28] In the preamble, Parliament recognizes that the compelled production of personal information in accordance with ordinary disclosure principles may deter victims of sexual offences from reporting and seeking “necessary treatment, counselling, or advice”. It also acknowledges that such unconstrained disclosure may detrimentally affect the work of those who provide services and assistance to complainants of sexual offences. [29] In R. v. Mills, [1999] 3 S.C.R. 668, the Supreme Court of Canada further elaborated on the nature of the personal information and the reasonable expectation of privacy contemplated by s. 278.1. Mills involved a constitutional challenge to ss. 278.1 to 278.9 of the Criminal Code. The accused in Mills was charged with the sexual assault of a thirteen-year old. Prior to trial, the accused sought disclosure of certain therapeutic records, including records held by a psychiatrist and an adolescent services association. In the interim, the Criminal Code was amended to include ss. 278.1 to 278.9. Upon learning of the amendment, the accused challenged the validity of the new provisions, claiming that they violated his rights under the Canadian Charter of Rights and Freedoms. [30] The majority of the Supreme Court of Canada ultimately upheld the constitutionality of the new disclosure regime. In doing so, the majority considered the important privacy interests at stake in the production of private records in the context of a trial for sexual assault. Discussing the fundamental aspects of privacy, at para. 81, the majority cited with approval Sopinka J.’s statement in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293: ...[I]t is fitting that s. 8 of the Charter should seek to protect a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination to the state. This would include information which tends to reveal intimate details of the lifestyle and personal choices of the individual. [31] The majority also stressed the importance of the protection of personal information to maintaining relationships of trust and confidentiality, at para. 89: The values protected by privacy rights will be most directly at stake where the confidential information contained in a record concerns aspects of one’s individual identity or where the maintenance of confidentiality is crucial to a therapeutic, or other trust-like, relationship. [32] The important thing to note about the scheme of the Act and intention of Parliament as evidenced in the preamble to Bill C-46 and the majority’s discussion in Mills is the nature of the privacy interest being discussed. The “personal information” and “expectation of privacy” in s. 278.1 is framed in reference to intimate information about one’s identity and lifestyle, of the type disclosed in the context of a trust-like, confidential, or therapeutic relationship. It is, in the words of Sopinka J., the type of information an individual would seek to withhold from the state. [33] When a victim of a sexual assault speaks to police about the attack, he or she is not doing so in the context of a trust-like, confidential, or therapeutic relationship. Nor is that individual seeking to withhold that information from the control or dissemination of the state. Indeed, an individual speaking to a police officer in this context is expressly sharing information with the state, for the purpose of having the assault investigated and addressed. [34] More specifically, a complainant cannot reasonably expect that the information, personal though it is because of the nature of the complaint, will remain a private matter between her and the officer. The complainant will know that the information she provides will be the basis for charges against and the prosecution of the person who assaulted her, and that the information will, in the usual course, come out at a public trial. In my view, there can be no “reasonable expectation of privacy” in information a complainant provides to police and which the police record in one form or another. Similar reasoning would apply to information provided to police by a witness. [35] With the nature of the privacy interest contemplated by s. 278 in mind, I will now turn to the “the words of [the] Act … read in their entire context and in their grammatical and ordinary sense.” The actual words used in s. 278.1, omitting only the language of example, read: … “record” means any form of record that contains personal information for which there is a reasonable expectation of privacy … but does not include records made by persons responsible for the investigation or prosecution of the offence. [36] The records excluded under this definition are those “made by persons responsible for the investigation or prosecution of the offence”. They are not records made by other persons which may be held by the police or the prosecution; the excluded records are only those “made” by those responsible for the investigation or prosecution of the offence. [37] Further, there is no language which limits the word “records” to only those records made in relation to the specific offence in issue. Had it been Parliament’s intention to limit the exclusion to only those records prepared in relation to the specific offence in issue, it could easily have employed language to accomplish that purpose. It did not. [38] Considering both the intention of Parliament in enacting Bill C-46 and the words of s. 278.1 read in their grammatical and ordinary sense, I must therefore respectfully disagree with the trial judge’s conclusion that occurrence reports qualify as “records” for the purposes of s. 278.2. In my view, occurrence reports do not fall within the realm of private records Parliament intended to target in enacting ss. 278.1 to 278.9. [39] The discussion above about the nature of the privacy interest at stake supports this view. Passages from Mills also support this view. At the outset of the majority’s judgment, at para. 50, it states: Bill C-46 begins by defining records to which it applies: “any form of record that contains personal information for which there is a reasonable expectation of privacy”, excluding investigatory or prosecutorial records... [Emphasis added.] [40] This statement reflects that police-made occurrence reports and investigative records are different in kind from the type of records contemplated by s. 278.1 or at issue in Mills. The types of records specifically referenced in s. 278.1 are medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social service records, personal journals and diaries and records containing personal information which is protected by legislation. [41] In Mills, the court was considering therapeutic records and notes that were in the possession of a counselling organization, and records held by a psychiatrist and by a child and adolescent services organization – “private records,” as the court referred to them throughout its judgment. For the reasons I have explained above, I do not accept that occurrence reports created by police implicate the types of privacy interests envisioned in s. 278.1 or in Mills. [42] More importantly, as a result of the plain wording of s. 278.1, it does not matter whether an occurrence report contains “personal information for which there is a reasonable expectation of privacy” or not. So long as a record was “made by persons responsible for the investigation or prosecution of the offence”, it is excepted from the definition of “record” by the language of s. 278.1. Even if such records should contain “personal information for which there is a reasonable expectation of privacy”, they are, by the concluding words of s. 278.1, excluded from its reach. [43] Here, it was clear that the detective featured in the radio documentary reviewed “four or five” occurrence reports relating to T.R in preparation for the trial of this case. Those reports are part of the “fruits of the investigation”, and are producible under Stinchcombe as part of the Crown’s first party disclosure obligations. If, as here, the defence seek copies of other occurrence reports relating either to T.R. or L.I., they must make a further request to the prosecuting Crown and the Crown is required to produce those records in accordance with its Stinchcombe disclosure obligation. [44] Because the occurrence reports were not produced to the appellant, we cannot know what effect, if any, the use of such records may have had on the appellant’s case. In such circumstances, the curative proviso under s. 686(1)(b)(iii) of the Criminal Code cannot be applied and, regrettably, there must be a new trial. D. Conclusion [45] In the result, the appeal is allowed and a new trial is ordered. [46] Because there will be a new trial, it is unnecessary to deal with the sentence appeal. Released: March 26, 2013 “MR” “J. MacFarland J.A.” “I agree M. Rosenberg J.A.” “I agree Robert J. Sharpe J.A.” [1]Rizzo and Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, adopting with approval the statement of Elmer Dreidger in Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87.