R. v. McNeil (L.) (2009), 246 O.A.C. 154 (SCC)
MLB headnote and full text
[French language version follows English language version]
[La version française vient à la suite de la version anglaise]
…………………….
Temp. Cite: [2009] O.A.C. TBEd. JA.136
Attorney General of Ontario, 3rd Party Record Holder (appellant) v. Lawrence McNeil, Her Majesty The Queen and Chief of Barrie Police Service, 3rd Party Record Holder (respondents) and Attorney General of Alberta, Matthew Marshall, Police Association of Ontario and Criminal Lawyers’ Association (Ontario) (intervenors)
(31852; 2009 SCC 3; 2009 CSC 3)
Indexed As: R. v. McNeil (L.)
Supreme Court of Canada
McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ.
January 16, 2009.
Summary:
An accused appealed his drug-related convictions. The accused learned that the officer who arrested him and testified against him at trial was subject to pending charges under the Criminal Code and Police Services Act, and a guilty plea under the Police Services Act, for alleged dishonest conduct resulting from the officer’s involvement with narcotics. The accused brought an O’Connor application for disclosure of records in the hands of the provincial Crown and the Barrie Police Service relating to the criminal charges and disciplinary proceedings against the officer. The Barrie Police Service opposed disclosure on the ground of a third party privacy interest in its records. The accused submitted that he required the records to assist him in developing material for an application to admit fresh evidence on his appeal. At issue was (1) the relationship between the Trotta test (Crown’s disclosure obligation on appeal) and the O’Connor test (disclosure of records involving third party privacy interests at trial); (2) whether the requested records met the requisite relevancy threshold for production; and (3) whether an O’Connor procedure was required for records that met the relevancy threshold.
The Ontario Court of Appeal, in a judgment reported (2006), 218 O.A.C. 1, allowed the motion in part. On a motion brought on appeal for production of records subject to third party privacy interests, the court must first apply the Trotta test to determine if the relevancy threshold was met. If so, it then fell to be determined whether the third party privacy interest trumped the accused’s disclosure claim. The court held that some of the records in the hands of the provincial Crown and the Barrie Police Service met the relevancy threshold. For most of the records in the Crown’s hands an O’Connor-type procedure was unnecessary. Further submissions were required to determine whether an O’Connor-type procedure was required for the records in the hands of the Barrie Police Service. The Ontario Attorney General appealed. The proceedings against the accused had since been discontinued, the accused withdrew his participation in this appeal and the production issue was now moot.
The Supreme Court of Canada first decided to hear the appeal notwithstanding it was now moot, as issues concerning the production of police disciplinary records and criminal investigation files relating to third party accused occur frequently and, because the proceedings where these issues arose were generally interlocutory, production orders were often evasive of appellate review. Further, the third parties in this case had a subsisting interest in clarifying some of the uncertainties that arose from the appeal court’s decision. On the merits, the court allowed the appeal and set aside the Court of Appeal’s order. The court stated, inter alia, that “records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the ‘first party’ disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third party production”.
Civil Rights – Topic 1444
Security of the person – Right to privacy – Expectation of privacy – [See third
Criminal Law – Topic 5372
].
Courts – Topic 3040
Supreme Court of Canada – Jurisdiction – General – Moot issues – An accused appealed his drug-related convictions – The accused learned that the officer who arrested him and testified against him at trial was subject to pending charges under the Criminal Code and Police Services Act, and a guilty plea under the Police Services Act, for alleged dishonest conduct resulting from the officer’s involvement with narcotics – The accused brought an O’Connor application for disclosure of records in the hands of the provincial Crown and the Barrie Police Service relating to the criminal charges and disciplinary proceedings against the officer – The Ontario Court of Appeal allowed the O’Connor application in part – The Ontario Attorney General appealed – After the officer was convicted, the proceedings against the accused were discontinued – Accordingly, the accused withdrew his participation in the appeal and the production issue was now moot – The Supreme Court of Canada decided to hear the appeal notwithstanding it was moot, as issues concerning the production of police disciplinary records and criminal investigation files relating to third party accused occurred frequently and, because the proceedings where these issues arose were generally interlocutory, production orders were often evasive of appellate review – Further, the third parties in this case had a subsisting interest in clarifying some of the uncertainties that arose from the Court of Appeal’s decision – See paragraphs 1 to 2.
Criminal Law – Topic 129
General principles – Rights of accused – Right to discovery or production (disclosure) – [See first
Criminal Law – Topic 4505
].
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – An accused appealing drug-related convictions learned that the arresting officer was subject to pending charges under the Criminal Code and Police Services Act, and a guilty plea under the Police Services Act, for dishonest conduct resulting from the officer’s involvement with narcotics – The accused brought an O’Connor application for disclosure of records in the hands of the provincial Crown and the Barrie Police Service relating to the criminal charges and disciplinary proceedings against the officer – Disclosure was opposed on the ground of third party privacy interests – The Supreme Court of Canada held that disclosure of the records was governed by Stinchcombe (records in the Crown’s possession), not O’Connor (records in the possession of third parties) – The court stated that “records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the ‘first party’ disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first party disclosure package is governed by the O’Connor regime for third party production”.
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – The Supreme Court of Canada stated that “to the extent that the operative terms of the production order below may suggest that records in possession of one Crown entity are deemed to be in the possession of another, this interpretation should be discarded. The notion that all state authorities constitute a single indivisible Crown entity for the purposes of disclosure finds no support in the law and, moreover is unworkable in practice. Accordingly, Crown entities other than the prosecuting Crown are third parties under the O’Connor production regime. As I will explain, however, this does not relieve the prosecuting Crown from its obligation to make reasonable inquiries of other Crown entities and other third parties, in appropriate cases, with respect to records and information in their possession that may be relevant to the case being prosecuted. … The necessary corollary to the Crown’s disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused. For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party. Rather, it acts on the same first party footing as the Crown. … The Stinchcombe disclosure regime only extends to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly referred to as the ‘fruits of the investigation'” – See paragraphs 13, 14, 22.
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – The Supreme Court of Canada stated that “The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is well established. The duty is triggered upon request and does not require an application to the court. Stinchcombe made clear that relevant information in the first party production context includes not only information 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. … The Crown’s obligation survives the trial and, in the appellate context, the scope of relevant information therefore includes any information in respect of which there is a reasonable possibility that it may assist the appellant in prosecuting an appeal. While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest. The Crown’s exercise of discretion in fulfilling its obligation to disclose is reviewable by a court.” – See paragraphs 17 to 18.
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – The Supreme Court of Canada stated that “the accused’s interest in obtaining disclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material” – See paragraph 20.
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – Relevant information in the Crown’s possession had to be automatically disclosed to the accused under Stinchcombe – At issue was the duty of the Crown to seek out and obtain relevant information in the hands of other state agencies, such as the police – The Supreme Court of Canada held that the Crown was not a passive recipient of relevant information with no obligation to seek out or obtain relevant information – The court agreed with the statement that “Crown counsel have a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence” – The court stated that “the same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case” – See paragraphs 48 to 50.
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – The Supreme Court of Canada held that the police had a duty to disclose to the prosecuting Crown all material pertaining to the investigation of an accused – At issue was whether information of misconduct by a police officer involved in the case against the accused should form part of the first party disclosure package provided to the Crown for its assessment of relevance under Stinchcombe – The court stated that “the accused has no right to automatic disclosure of every aspect of a police officer’s employment history, or to police disciplinary matters with no realistic bearing on the case against him or her. However, where the disciplinary information is relevant, it should form part of the first party disclosure package, and its discovery should not be left to happenstance. When the police misconduct in question concerns the same incident that forms the subject-matter of the charge against the accused, the police duty to disclose information concerning police disciplinary action taken in respect of that misconduct is rather self-evident. … Where the misconduct of a police witness is not directly related to the investigation against the accused, it may nonetheless be relevant to the accused’s case, in which case it should also be disclosed.” – See paragraphs 52 to 60.
Criminal Law – Topic 4905.5
Appeals – Indictable offences – Procedure – Crown disclosure on appeal – [See first
Criminal Law – Topic 4505
].
Criminal Law – Topic 4989.3
Appeals – Indictable offences – Powers of Court of Appeal – Power to order production of evidence – [See first
Criminal Law – Topic 4505
].
Criminal Law – Topic 5371
Evidence and witnesses – Documents and reports – Documents in possession of Crown – [See first
Criminal Law – Topic 4505
].
Criminal Law – Topic 5372
Evidence and witnesses – Documents and reports – Documents in possession of third parties – [See first
Criminal Law – Topic 4505
].
Criminal Law – Topic 5372
Evidence and witnesses – Documents and reports – Documents in possession of third parties – The Supreme Court of Canada held that “by limiting the applicability of the O’Connor production regime to those cases where a third party has an expectation of privacy in the targeted documents, the decision under appeal raises some uncertainty concerning the appropriate mechanism for accessing third party records when it is unknown whether a reasonable expectation of privacy attaches. As I will explain, the procedure set out in O’Connor provides a general mechanism at common law for ordering production of
any
record beyond the possession or control of the prosecuting Crown. Whether or not a targeted record is subject to a reasonable expectation of privacy is one of the questions that must be determined at the hearing of an O’Connor application. For that pragmatic reason alone, the operation of the common law production regime cannot be premised on the existence of a reasonable expectation of privacy.” – See paragraph 11.
Criminal Law – Topic 5372
Evidence and witnesses – Documents and reports – Documents in possession of third parties – The Supreme Court of Canada stated that “to the extent that the decision in the court below suggests that there can be no expectation of privacy in the contents of a criminal investigation file, it is in error. As this court stated in R. v. Mills … ‘privacy is not an all or nothing thing. It does not follow from the fact that the Crown has possession of the records that any reasonable expectation of privacy disappears’ … This principle holds equally in respect of criminal investigation files relating to third party accused that are
not
in the possession or control of the prosecuting Crown. There can be no assumption that criminal investigation files relating to third party accused persons do not attract an expectation of privacy absent consideration of their particular contents and other relevant factors. The existence of a reasonable expectation of privacy and its impact, if any, on a third party’s obligation to produce is always a contextual, fact-based inquiry. Likewise, no blanket ruling can be made in respect of privacy interests in police disciplinary records without regard to their contents.” – See paragraph 12.
Criminal Law – Topic 5372
Evidence and witnesses – Documents and reports – Documents in possession of third parties – The Supreme Court of Canada stated that “the procedure to be followed on an O’Connor application is the following: (1) The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third party record holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials. (2) The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant in his or her trial. Notice of the application is given to the prosecuting Crown, the person who is the subject of the records and any other person who may have a privacy interest in the records targeted for production. (3) The O’Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. If production is unopposed, of course, the application for production becomes moot and there is no need for a hearing. (4) If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest cases where the accused’s innocence is at stake, the existence of privilege will effectively bar the accused’s application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O’Connor process. (5) Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O’Connor. At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court’s inspection. At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused.” – See paragraph 27.
Criminal Law – Topic 5384
Evidence and witnesses – Documents and reports – Police employment and disciplinary records – [See first
Criminal Law – Topic 4505
and third
Criminal Law – Topic 5372
].
Police – Topic 2212
Duties – General duties – Disclosure of information – [See sixth
Criminal Law – Topic 4505
].
Cases Noticed:
R. v. O’Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1, refd to. [para. 1].
R. v. Mills (B.J.), [1999] 3 S.C.R. 668; 244 A.R. 201; 209 W.A.C. 201, refd to. [para. 12].
R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 14].
R. v. Stinchcombe, [1995] 1 S.C.R. 754; 178 N.R. 157; 162 A.R. 269, refd to. [para. 22].
R. v. Gingras (1992), 120 A.R. 300; 8 W.A.C. 300 (C.A.), refd to. [para. 22].
R. v. Jack (B.G.) (1992), 76 Man.R.(2d) 168; 10 W.A.C. 168; 70 C.C.C.(3d) 67 (C.A.), refd to. [para. 24].
R. v. L.A.T. (1993), 64 O.A.C. 380; 14 O.R.(3d) 378 (C.A.), refd to. [para. 24].
R. v. Gagné (1998), 131 C.C.C.(3d) 444 (Que. C.A.), refd to. [para. 24].
Driskell v. Dangerfield et al., [2008] 6 W.W.R. 215; 228 Man.R.(2d) 116; 427 W.A.C. 116; 2008 MBCA 60, refd to. [para. 24].
R. v. MacPherson (1991), 105 N.S.R.(2d) 123; 284 A.P.R. 123 (S.C.), refd to. [para. 24].
R. v. Oliver (C.W.) (1995), 143 N.S.R.(2d) 134; 411 A.P.R. 134 (S.C.), refd to. [para. 24].
R. v. Campbell, [1992] N.S.J. No. 702 (Prov. Ct.), refd to. [para. 24].
R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 29].
R. v. Durette et al., [1994] 1 S.C.R. 469; 163 N.R. 321; 70 O.A.C. 1, refd to. [para. 29].
R. v. R.C. (2002), 155 O.A.C. 367; 163 C.C.C.(3d) 3 (C.A.), refd to. [para. 32].
D.P. v. Wagg (2004), 187 O.A.C. 26; 239 D.L.R.(4th) 501 (C.A.), refd to. [para. 46].
R. v. Arsenault (J.) (1994), 153 N.B.R.(2d) 81; 392 A.P.R. 81 (C.A.), refd to. [para. 49].
R. v. Ahluwalia (B.) (2000), 138 O.A.C. 154 (C.A.), refd to. [para. 50].
Authors and Works Noticed:
Ferguson Report – see Ontario, Toronto Police Service, Review and Recommendations Concerning Various Aspects of Police Misconduct.
Martin Committee Report – see Ontario (Attorney General), Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of.
Ontario (Attorney General), Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions, Report of (Martin Committee Report) (1993), pp. 167, 168 [para. 23]; 179 [para. 46]; 181 [para. 43].
Ontario, Toronto Police Service, Review and Recommendations Concerning Various Aspects of Police Misconduct (Ferguson Report) (2003) (online: http://www.toronto police.on.ca/publications/files/reports/ferguson1.pdf), vol. 1, pp. 1 [para. 55]; 12 [para. 56]; 15, 17 [para. 57].
Paciocco, David M., Filling the Seam between Stinchcombe and O’Connor: The “McNeil” Disclosure Application (2007), 53 Crim. L.Q. 161, pp. 199, 200 [para. 42].
Counsel:
Christine Bartlett-Hughes and Elise Nakelsky, for the appellant;
James C. Martin and Rick Visca, for the respondent, Crown;
H. Reginald Watson and Jill Sexsmith, for the respondent, Chief of Barrie Police Service (third party record holder);
Gary R. Clewley and Henry S. Brown, Q.C., for the intervenor, Matthew Marshall;
James A. Bowron, for the intervenor, Attorney General of Alberta;
Ian J. Roland and Danny Kastner, for the intervenor, Police Association of Ontario;
David M. Porter and Christopher A. Wayland, for the intervenor, Criminal Lawyers’ Association (Ont.);
Marie Henein and Jordan Glick, for the amicus curiae.
Solicitors of Record:
Attorney General of Ontario, Toronto, Ontario, for the appellant;
Public Prosecution Service of Canada, Halifax, N.S., for the respondent, Crown;
Caswell & Watson, Toronto, Ontario, for the respondent, Chief of Barrie Police Service (third party record holder);
Gary R. Clewley, Toronto, Ontario, for the intervenor, Matthew Marshall;
Attorney General of Alberta, Edmonton, Alberta, for the intervenor, Attorney General of Alberta;
Palaire Roland Rosenberg Rothstein, Toronto, Ontario, for the intervenor, Police Association of Ontario;
McCarthy Tétrault, Toronto, Ontario, for the intervenor, Criminal Lawyers’ Association (Ont.);
Henein & Associates, Vancouver, B.C., for the amicus curiae.
This appeal was heard on March 19, 2008, before McLachlin, C.J.C., Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein, JJ., of the Supreme Court of Canada.
On January 16, 2009, Charron, J., delivered the following judgment for the Court.
Editor’s Note: Bastarache, J., did not participate in the judgment.
