Supreme Court allows Crown appeal in complainant records disclosure case

July 9, 2014 - Ottawa - The Supreme Court of Canada has released its decision in R. v. Quesnelle respecting the disclosure of records of police contact with complainants to persons accused of sexual offences. The case before the Court involved a complainant who had made prior complaints of sexual assault to the police. The Court of Appeal for Ontario had held that police occurrence reports were not subject to the same expectation of privacy as psychiatric, child welfare and counselling records and were to be produced in accordance with the Crown's regular disclosure obligations. The Supreme Court has reversed the lower court with the result that complainants will have standing to oppose the disclosure of their records of prior police contact using the process under section 278.1 of the Criminal Code. The conviction of the accused Mr. Quesnelle was also restored by the Supreme Court.

The decision is of particular significance to those with a history of mental health contact with the police. In their article published by the Ontario Bar Association Health Law Section earlier this year, Karen Steward and Bernadette Maheandiran of Swadron Associates critiqued the decision of the Court of Appeal and identified the unintended impact of the decision upon the willingness of persons with prior mental health contact with police to report sexual offences. Swadron Associates regularly represents complainants facing the disclosure of their personal and health records in criminal proceedings. Steward and Maheandiran see the affirmation that records created by the police for reasons unrelated to the offence in question will not be disclosed unless it is established, on notice to the complainant, that the records are likely relevant to the prosecution or the defence as restoring fairness to the process.