R. v. G.(S.), 2012 ONCJ 176

WARNING The court hearing this matter directs that the following notice should be attached to the file: A non-publication and non- broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code . This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) , read as follows: 486.4 Order restricting publication — sexual offences. —

(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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of (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) Mandatory order on application. — 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. . . . 486.6 Offence. —

(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. COURT FILE No. Toronto Citation: R. v. G.(S.) , 2012 ONCJ 176 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. M. Medeiros ) for the Crown ) — AND — ) ) S.G. ) ) Mr. C. Ruby and Mr. N. Hasan ) for the Accused ) ) Heard: December 9, 15, 2011 ) ) NAKATSURU J.:

[1] The accused, Mr. S.G., is charged with committing a number of sexual offences against a four year old girl. He has electedtrial in this court and has pleaded not guilty. During the voir dire into whether the video recorded police interview of the childcomplainant is admissible under the principled exception to the hearsay rule, the defence brought an application for further Crowndisclosure. I granted the defence request in part. These are the written reasons explaining my decision. INTRODUCTION [2] This case raises the issue of the scope of Crown disclosure.

The defence seeks material in the possession of the TorontoPolice Service that relate to the interviewing of child witnesses and the training of their police officers in that regard. The now five yearold child complainant was interviewed by the police on December 13, 2010. This interview was video recorded. During the interview,the young child made serious allegations of sexual abuse against the accused. Detective Constable Shannon McParland asked nearly allof the questions during this interview. [3] The child has testified before me at the accused’s trial. She has now recanted the allegations of abuse.

The Crown seeks to have her prior out-of-court video recorded statement given to the police on December 13th, admitted under the principled exception tothe hearsay rule. [4] The defence has brought a motion for further Crown disclosure.

The defence seeks an order compelling the Crown toproduce the following items: • Any training materials, policy manuals or other reference materials used by the Toronto Police Service relating to the properinterrogation and interviewing techniques of children; and • Any information relating to any formal or informal training that Detective Constable Shannon McParland has received relating tothe interrogation and interviewing techniques of children. [5] On behalf of the Crown, Mr. Medeiros has made inquiries of the Toronto Police Service with respect to the defencerequests.

He has been advised by the police force that it will not provide such materials to the Crown or the defence. The explanationprovided by the police is that disclosure of these materials could compromise police investigative techniques. ISSUES AND THE POSITIONS OF THE PARTIES A. Position of the Accused [6] Mr. Ruby submits that the Crown is under an obligation to disclose all material not clearly irrelevant in his possession orcontrol to the accused.

It is argued that information should not to be withheld if there is a reasonable possibility that the withholding ofthe information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law ofprivilege. [7] The defence relies on the cases of R. v. Stinchcombe, (SCC), [1995] 1 S.C.R. 754 and R. v. McNeil, 2009SCC 3 , [2009] 1 S.C.R. 66. In both cases, the Supreme Court of Canada recognized that although the police and the Crown aredistinct legal entities, relevant material in the possession of the police is treated as first party disclosure.

Corollary to the Crown’sdisclosure duty is the obligation of the police to disclose to the Crown all material pertaining to its investigation of the accused. [8] It is contended that in the case at bar, the police has failed in its obligation to disclose to the Crown. Since McNeil, morethan what has been traditionally regarded as the “fruits of the police investigation” must be disclosed.

All material pertaining to theinvestigation of the accused, even when not directly arising out of the police investigation, falls within the first party disclosureobligation. [9] It is submitted that the materials being sought are relevant to the investigation of the accused. Just like the disciplinaryrecords at issue in McNeil, the training manuals, policies, and reference materials pertain to the accused’s case since they impact uponthe reliability of the police interview of the child. If D.C.

McParland did not follow such training or material, this could undermine thereliability of the video recorded statement and also have an effect on the officer’s credibility. This would be relevant not only to the trialon the merits but also to the test for admission of the hearsay statement of the child under R. v. Khelawon, 2006 SCC 57 , [2006]2 S.C.R. 787. B. Position of the Crown [10] The Crown submits that the records sought by the defence are not in his possession and control. The records are in thepossession and control of the police force.

As a result, the defence must bring a third party records application under the common lawregime as set out in the case of R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411. [11] In making the inquiries of the police, the Crown argues that he has discharged his obligation as a Crown in makingreasonable inquiries of other government agencies. The Toronto Police Service is distinct from the Crown and has, for its own reasons,

refused to provide the materials. Having not viewed the materials, the Crown is not in a position to argue any potential public interestprivilege arising from the disclosure of police investigative techniques. The Toronto Police Service should be a proper party to theproceeding so that it may raise such privilege should it choose to do so. The appropriate forum to facilitate this, in the Crown’s view,would be a third party records application. [12] It is the position of the Crown that the defence

interpretation of McNeil is overbroad. Records that do not comprise theCrown brief in prosecuting the accused are normally considered as third party records. The Supreme Court of Canada’s decision inMcNeil should be confined to its facts; that is, police discipline records that could affect an officer’s credibility. The decision to makethis a part of the first party disclosure obligation of the Crown was a pragmatic one, designed to bridge the gap between first partydisclosure and third party police records applications, given that an accused would not know of such records except by way ofhappenstance.

The effect of the decision should be limited to police discipline records or to other similar materials where the purposebehind the principle of disclosure can only be achieved given that it would simply be by way of happenstance the defence would gainknowledge of the material’s existence. In the case at bar, the defence is aware that the materials exist and can readily bring a third partyrecords application.

Thus, there is no reason to require the Crown to disclose the materials. [13] Practically speaking, the Crown also submits that since the police have refused to provide him with the materials, he is inthe same position as the defence. He can no more obtain the materials than the defence without bringing a third party recordsapplication. The efficient administration of justice would not be advanced by making these materials a part of the Crown’s first partydisclosure obligation given the non-cooperative attitude shown by the police.

ANALYSIS [14] Prior to addressing the central issue, it is worth emphasizing that the question of privilege does not arise on this motion. Both parties agree that since Mr. Medeiros has not seen any of the materials, he is unable to assess the existence of any privilege or toassert it in this court. As a result, the police claim of investigative privilege is not an issue that needs to be addressed at this point in time: see R. v. Trang, 2002 ABQB 19 , [2002] A.J. No. 119 (Alta. Q.B.).

When the Crown receives the material from the police, hecan then review it to determine if such a claim exists and to which documents it should attach. [15] A second preliminary point can also be readily disposed of. I have not been persuaded by the Crown’s argument that he isin no better position than the defence to obtain the disclosure from the police even if I hold that the materials fall under the first partydisclosure obligation. Once litigated, I expect the police authorities to comply with any order made by this court.

There areconsequences for non-compliance including a potential stay of these proceedings if the defence is unable to obtain the disclosure he hasrequested. I have no reason to believe that the police will not provide the materials to the Crown if I find this material to be a part of theCrown’s first party disclosure obligation. A. The Obligation of the Police to Disclose to the Crown [16] It is not controversial that the police have an obligation to disclose to the Crown relevant material in its possession.

Asstated in McNeil at para. 14: The Crown’s obligation to disclose all relevant information in its possession to an accused is well established at common law and is nowconstitutionally entrenched in the right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms. Thenecessary 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 samefirst party footing as the Crown. [17] In this case, Mr. Medeiros has made the inquiries of the police for the requested disclosure by the defence. The police haverefused to provide it. On its own initiative, the police have cast itself as a purported third party in relation to these disclosure requests.

However, when a request for disclosure properly falls within first party disclosure, the police cannot simply refuse to provide thedisclosure to the Crown and thereby convert the matter into a third party records application.

It merits harkening back to the Report ofthe Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions, the Martin Report, whichcommented at p. 199: From the perspective of the accused’s right to full disclosure, it makes no difference whether it is held that relevant informationdiscovered by the police in their investigation of a crime, but not revealed to Crown counsel, is in the control of Crown counsel, orwhether the true principle is that the prosecution is flawed because, while Crown counsel may not have failed in his or her duty, therehas been a failure of the machinery of justice to disclose relevant information to the defence.

In any event, the accused person has notbeen accorded his or her right to disclosure, and is, therefore, entitled to such remedy as may be appropriate in the circumstances. [18] The ultimate determination of this motion does not depend upon who has physical possession of the material or the attitudetaken by the police. Rather, the decision must rest upon a careful consideration of the case of McNeil and a close scrutiny of the natureof the materials sought by the defence. B. R. v. McNeil

[ 19 ] The Crown and defence have offered differing views of the Supreme Court of Canada’s decision in McNeil . In McNeil , the defence sought production of all documents relating to the arresting officer’s conduct that lead to both internal disciplinary proceedings and criminal charges. The accused in that case had brought a third party records application to obtain these materials in accordance with the procedure set out in R. v. O’Connor.

Despite the appeal being moot, the Supreme Court undertook a review and clarification of this area of law in order to resolve some uncertainties that existed in the jurisprudence. One such clarification was the determination that the records being sought in that case fell under the first party disclosure procedure pursuant to Stinchcombe rather than the third party records regime outlined in O’Connor . [ 20 ] The Crown seeks to limit the case of McNeil to its own facts. In other words, that aside from the type of disciplinary records and criminal briefs in issue in that case, the decision stands for no more.

The Crown argues that police records when they do not fall within the prosecutor’s brief should be subject to an application for the production of third party records. On the other hand, the defence closely focuses on Justice Charron’s choice of wording in making the disclosure order that she did. Justice Charron stated that all material “pertaining” to the investigation of the accused must be disclosed.

This would include material greater than that which “arises” from the investigation which traditionally comprises the prosecutor’s brief. [ 21 ] In my review of McNeil , perhaps unsurprisingly, I have come to the opinion that the decision is not as limited as argued by the Crown or as broad as contended for by the defence. It is clear to me that the Supreme Court of Canada attempted to provide an efficient, fair, and workable system for both third party records applications and the Crown disclosure regime.

Put another way, the decision posits a seamless transition where once the Crown disclosure obligation ends, streamlined third party records applications can proceed fairly and expeditiously. What the Court could not do, as Justice Charron expressly recognized, was to deal with the myriad of fact situations that potentially can lead to a dispute between the parties. This case is one example. Nonetheless, there are both expressed and implicit principles canvassed in McNeil that I have found to be of major assistance.

While Justice Charron also provides invaluable elucidation of the O’Connor regime, I will focus my comments on the first party disclosure process. [ 22 ] First of all, McNeil firmly rejects the notion that there is a single indivisible Crown for the purpose of the disclosure regime. Thus, the Crown obligation to disclose, as stated numerous times in the judgment, rests with the “prosecuting” Crown. Other Crown agencies and departments are third parties to the criminal trial and materials in their possession and control are not equated with possession and control of the prosecuting Crown.

Consequently, in general, third party records applications are required in order for the defence to secure relevant documents from such entities.

Justice Charron states that the Stinchcombe regime only extends to materials relating to the accused’s case that is in the possession and control of the prosecuting Crown entity, commonly referred to as the “fruits of the investigation” (at para. 22). [ 23 ] Secondly, Justice Charron recognizes the significant practical distinction between the O’Connor regime and the Stinchcombe regime when she said the following(at para. 47): While the accused will receive automatic disclosure of relevant material that finds its way into the hands of the prosecuting Crown, accessing relevant material in the hands of third parties will often be more happenstance.

To a certain extent, that is inevitable. Third parties are under no obligation to come forth with relevant information to assist the accused in his defence. However, the prosecuting Crown and the investigating police force are in a different position and can assist in bridging the gap between first party disclosure and third party production. [ 24 ] I agree with Mr. Medeiros that the Court in McNeil was significantly concerned about “bridging the gap” between the two regimes.

I also agree that the Court was troubled by the fact that the defence would often be in a poor position to know the existence of relevant information held by third parties unless it came upon it by “happenstance”. However, I cannot accept the Crown’s submission that the first party disclosure obligation should only be limited to relevant information that can only be uncovered by chance or happenstance. [ 25 ] Justice Charron resorted to two mechanisms to bridge the gap. The first is to elevate the duty on the Crown to make reasonable inquiries of other Crown agencies and departments.

If those inquiries provide information about the existence of potentially relevant evidence including evidence pertaining to the credibility or reliability of witnesses, the Crown may obtain possession of such materials or if refused access, the Crown can alert the defence who, if he or she chooses to do so, can bring an O’Connor application. In the case before me, Mr. Medeiros has commendably discharged his duty under this aspect of McNeil .

I note that he has made these efforts without conceding before me that he was under any obligation to do so . [ 26 ] The other mechanism to bridge the gap between the two regimes is the strengthening of the police obligation to disclose material to the Crown by reinforcing the concept of relevance.

Put another way, the basket which originally contained the “fruits of the investigation” has become larger. [ 27 ] The starting point for this analysis is the recognition that while the police are fundamentally distinct from the prosecuting Crown, they are not true third parties to a prosecution (at para. 25): Even though, in this narrow sense, the police and the Crown may be viewed as one entity for disclosure purposes, the two are unquestionably separate and independent entities, both in fact and in law.

Hence, production of criminal investigation files involving third parties, and that of police disciplinary records, usually falls to be determined in the context of an O’Connor application. This is unsurprising because information about third party accused or police misconduct is not likely to make its way into the Crown’s Stinchcombe disclosure package unless such information is in some way related to the accused’s case.

I will come back to this point later in discussing the circumstances in which information about third party misconduct should properly form part of the police disclosure package to the Crown. [Emphasis added]. [ 28 ] Subsequently, in her discussion about the police’s corollary duty to disclose relevant information (at paras. 52 to 54), Justice Charron recognizes that there may, on occasion, be difficulty in identifying the contours of relevance when it came to the police’s first party disclosure obligation.

That being said, Justice Charron accentuates the concept of relevance as a key factor in the assessment of what should fall within the basket. On the facts of McNeil, evidence of misconduct by the police officer which hitherto did not always

form a part of the Crown brief, has now become what is commonly referred to as McNeil disclosure since the Court’s determination that this evidence is relevant to the defence. At the same time, other aspects of a police officer’s employment history or police disciplinary matters with “no realistic bearing” on the accused’s case, does not automatically have to be disclosed.

Resort to a third party records application is required for the defence to obtain such materials. [ 29 ] Therefore, speaking generally, in my opinion, any request for materials in the hands of the police must be assessed by the standard of relevance to the accused’s case. Justice Charron noted that some information may be “obviously” relevant to the accused’s case. Such information should be disclosed by the police to the Crown without prompting.

If the police are aware and appreciate that such information is clearly relevant, then it falls within first party disclosure obligations and should make its way into the prosecutor’s brief routinely even if it would not normally comprise a part of the police investigation into the crime. An example given by Justice Charron is a criminal record for perjury of a civilian material witness. This reasoning is not confined to police disciplinary records but to any information that meets the requisite standard of relevance.

Once met, this engages the corollary police duty to disclose. [ 30 ] Such a duty is moreover recognized in the Code of Conduct , O. Reg. 268/10 . Sch., enacted under the Police Services Act , R.S.O. 1990, c. P. 15: 2.

(1) Any chief of police or other police officer commits misconduct if he or she engages in, (

c) Neglect of Duty, in that he or she, vii) fails to report anything that he or she knows concerning a criminal or other charge, or fails to disclose any evidence that he or she, or any person within his or her knowledge, can give for or against any prisoner or defendant, It is worth mentioning that this duty as defined in the Code is not confined to the “fruits of the investigation.” [ 31 ] The prominence given to the notion of relevance addresses the “Catch-22” problem that Justice Charron referred to when she discusses the Ferguson Report commissioned by the Toronto Police Service relating to different aspects of police misconduct.

This report illustrated the problem with leaving the whole field of discipline records to the O’Connor regime since the defence would be in a very poor position to get beyond a fishing expedition in most cases. For third parties other than the police, including Crown agencies and departments, this may be an inevitable obstacle for the defence.

However, once more, by re-emphasizing the police obligation to disclose relevant information, Justice Charron bridges the gap between the first party disclosure and third party records applications when the information in question is held by the police. [ 32 ] Justice Charron comments that information that is “obviously relevant” should be disclosed. While she characterizes the records in this way, I do not see this as changing the Stinchcombe standard by which the test of relevance must be measured.

I interpret her remarks as simply being referable to information that should make its way automatically to the prosecutor. If relevance is so obvious to the police, there is no justification for the police not automatically making it a part of the disclosure package. However, there may be other information that the police may not know about or appreciate its relevance to the defence; its relevance being not so “obvious”. McNeil does not stand for the

interpretation that only “obvious” relevant material in addition to the fruits of the investigation need be forwarded to the prosecuting Crown. To hold so would create a two tier standard of Crown disclosure. Nowhere in the McNeil decision can one infer that Justice Charron contemplated such dramatic change in the law of disclosure by using the adjective “obvious”. It would be illogical in principle and unworkable in practice. [ 33 ] Professor David Paciocco (now Justice Paciocco) comes to the same conclusion in his

article “ Stinchcombe on Steriods: The Surprising Legacy of McNeil ”, (2009), 62 C.R. (6 th ) 26 at p. 29 where he states: Naturally, an “obviously relevant” standard would result in much more limited disclosure than Stinchcombe ’s “all but the ‘clearly irrelevant’” standard would. So what standard applies? There is no principled reason why the standard for police disclosure to the Crown should be less onerous than the standard of Crown disclosure to the accused, particularly given that the obligation of police disclosure is meant to service Crown disclosure.

Understood in context, the “obviously relevant” references in McNeil should be interpreted to be a commentary by the Court on the evidence at issue in the McNeil case itself, and not a statement of the standard for police disclosure to the Crown. Information in police files about the misconduct of police officers that is not clearly irrelevant should be furnished to the Crown. [ 34 ] In the instant case before me, the requested disclosure did not make it to the disclosure package prepared by the police and in the possession of the Crown.

It cannot be a requirement for relevance that the disclosure makes it into the Crown brief initially. This would be a circular argument. The test for disclosure, that is information that is reasonably possible to assist the defence, may only become apparent when the defence requests it. Of course, the defence must be duly diligent in making specific disclosure requests. Once the defence makes such a request, the Crown obligation to inquire and the police obligation to disclose relevant information is triggered.

Along these lines, Justice Charron encourages cooperation between police, the Crown, and defence counsel and advises a police force to seek the guidance of Crown counsel when unsure about the potential relevance of the information sought. [ 35 ] In

summary, McNeil focuses on the unique relationship between the police and the Crown and the nature of the information being sought from the police. With respect to the former, the police, while independent and separate from the Crown, is an indispensable partner in making first party disclosure. To permit the police to state whenever it chose to do so that it was third party in response to a defence request would make disclosure unworkable. Regarding the latter, what exactly should be disclosed can be a difficult question.

However, the Supreme Court of Canada held that it must be more than just what was traditionally defined as the “fruits of the investigation” or the prosecutor’s brief compiled by the police after the investigation of a crime. Otherwise, the discipline backgrounds of the police officers, information that cannot be so characterized, would not have been disclosed to the defence. In the end, these issues have to be decided on a case-by-case basis.

Finally, the Court was mindful of the potential of disputed disclosure requests of information in the possession of the police to unduly delay and complicate criminal trials. The Court reminds us that the

Crown, police, and the defence should not behave as single-minded adversaries; there should be a spirit of cooperation in dealing with disclosure issues. In fostering that, the judiciary plays an important role in encouraging the parties to resolve their differences. C.

Police Standards, Policies, and Protocols on Interviewing Young Children [ 36 ] Any written information in the possession of the Toronto Police Service that relate to standards, policies, and protocols on interviewing young child complainants/victims of physical and sexual abuse fall within the first party disclosure obligation of the Crown and must be disclosed to the defence. I have come to this conclusion after applying the principles set forth in McNeil . [ 37 ] At the outset, I would like to refer to O. Reg. 3/99 enacted under the Police Services Act , R.S.O. 1990, c.

P. 15 titled Adequacy and Effectiveness of Police Services . A

section of this regulation specifically deals with the obligation of the chief of police to develop such materials that are being sought by the defence: 12.

(1) Every chief of police shall develop and maintain procedures on and processes for undertaking and managing general criminal investigations and investigations into, (

a) physical and sexual abuse of children; In this case, the child complainant was interviewed by D.C. McParland. She would have been subject to those procedures and processes developed by the chief of police. [ 38 ] The Crown duty to disclose rests on the premise that material in possession of the prosecutorial authorities that is relevant to a criminal prosecution is not the “property” of the Crown, but is rather “the property of the public to be used to ensure that justice is done”: see Stinchcombe at p. 333.

The written standards, policies, and protocols used by the Toronto Police Service required to be developed by provincial regulation are quintessential property of the public. [ 39 ] In my judgment, this information is relevant to the defence and must be disclosed. The defence is challenging the reliability of the statements made by the child complainant to D.C. McParland. Reliability of the statements is relevant to any decision regarding the threshold determination of reliability on the voir dire with respect to their admissibility pursuant to the principled exception to the hearsay rule.

In addition, if admitted, the reliability of the statements will be a significant issue with respect to the weight to be placed on the video recorded statements made to D.C. McParland. Finally, depending on the how D.C. McParland may testify, her credibility may be challenged by the defence. [ 40 ] The Toronto Police Service has enacted standards, policies, or protocols dealing with the very type of interview that was conducted with a very young child complainant in a sexual abuse case.

Such interviews must be conducted with care to ensure a truthful and reliable statement is received from such a vulnerable and impressionable complainant. Where a police force has set out in writing certain standards, policies, and protocols that are applicable across the force for their officers to follow in doing something as important as interviewing child complainants of physical or sexual abuse, such material is clearly relevant to the defence in determining whether the interview in question was properly conducted in accordance with the police’s own standards. [ 41 ] This case can be analogized to McNeil.

In McNeil , the materials pertaining to the dishonesty of the arresting officer did not form a part of the Crown’s case as they were not “fruits of the investigation.” In other words, the information was not the steps taken in the investigation of the crime, the results of that investigation, or evidence regarding the offence or the offender.

This information, however, was very relevant to an issue at trial; the credibility of a potential key witness. [ 42 ] In the case at bar, standards, policies, and protocols used by the police officer in interviewing the child complainant are also not fruits of the investigation. However, they too are very relevant to an issue at trial and the voir dire : whether the child was unduly influenced in her disclosure to the police by the nature of the police interview. If the police did not knowingly observe their own standards, other issues related to credibility and potential police misconduct may arise.

As a result, they should form part of the first party disclosure obligations of the police and Crown. [ 43 ] It is true that these standards, policies, and protocols are not physically in the prosecutor’s Stinchcombe brief. I appreciate that they are not likely to become a routine part of the investigative package forwarded to the Crown. However, this is not an impediment to disclosure. In some ways, although not corporeally present in the investigative package, they are in spirit there in every brief.

I am not saying that in every case the police are required to customarily provide standards, policies, and protocols to the Crown. I would not hold so for perhaps, if for nothing else, very practical reasons, especially if there is no indication known to the police that a police officer had infringed any standard, policy, or protocol.

Nevertheless, having regard to the context of this prosecution, regardless of there being an indication the interview was not properly conducted, they should provided when requested to the defence. [ 44 ] The police have stated to the Crown that there are public interest concerns about releasing this material in that it may reveal investigative techniques. In my opinion, the police should not look for reasons to erect barriers to cooperation.

While the police remain independent of the Crown, as I have already commented upon, they are partners in the prosecution of the accused and in the administration of criminal justice. Any concerns that the police may have about the materials are subject to safeguards built in by the disclosure process. Once provided to the Crown, these concerns can be discussed with the prosecutor in a knowledgeable and open fashion.

The Crown can, if he or she feels it is warranted, raise those concerns with the defence and the court whether it is privilege or privacy. [ 45 ] It must be emphasized that what is being disclosed are police wide standards, policies, or protocols that govern the behaviour of each individual member. Disclosing such information can only enhance transparency and accountability in policing. Absent privilege concerns, the release of such information can only reinforce the ties between the police and the community it serves.

Knowing that such standards, policies, or protocols are followed by individual officers instils confidence in and increases the standing

and reputation of the police. When they are not followed, the relationship between the police and the community is strengthened by theknowledge that the police force acts with openness rather than secretiveness with respect to any shortcomings of its members. [46] Consequently, it is my order that the Crown disclose these materials to the defence. D. The Training and Reference Materials [47] The other information sought by the defence is not on the same footing and need not be disclosed.

This includes anytraining or reference materials used by the Toronto Police Service relating to the interviewing and interrogation of children and anyinformation relating to any formal or informal training that D.C. McParland has received regarding the interviewing and interrogation ofchildren. It is my view that such information is not relevant to the investigation of the accused and the charges before the court.

Thus,the Toronto Police Service which has possession and control over such materials do not have a duty to disclose this to the Crown. [48] These records do not enjoy the same status as standards, polices, or protocols. They are not universal standards governingpolice conduct. Undoubtedly the Toronto Police Service have an abundance of materials in written, digital, or audio/video form for thetraining and edification of its members. There may be a significant variance in their content. They may be of greater or lesser value anduse depending on the case and on the predilections of an individual officer.

They may differ from reference material to referencematerial, course to course, instructor to instructor, mentor to mentor. With respect to some of the materials, it may be that individualofficers are at liberty to disagree with the advice or guidance in them. Some officers may not follow the training received if thecircumstances are such to do so would be inappropriate. Deviation may be inconsequential. Some material may be seriously out of date.

The large body of information sought, its inherent variability, and the absence of any authoritative quality distinguishes these materialsfrom that which I have decided should be disclosed. This is true with respect to the materials pertaining to the Toronto Police Service asa whole and with respect to the D.C. McParland’s individual experience. [49] Secondly, these materials, like the employment records in McNeil that the Supreme Court held did not fall under first partydisclosure obligations, have purposes that have little if anything to do with the investigation of the accused.

They were created primarilyfor the purpose of training and educating police officers in the interview of children. [50] Thirdly, it only takes a moment’s reflection to realize the breadth of the defence’s request. Police officers acquireknowledge and skill through both training and experience. If the defence is correct, any form of training or information that a policeofficer is exposed to throughout his or her career would fall under the first party disclosure obligation of the police.

This would includeany materials used to train raw recruits at the police college to conference materials attended by a more experienced police officer. Torequire the police to investigate and track down every item of information that could fall within the defence request as a component of itsfirst party disclosure obligation would be subject to the type of criticism explained in R. v. Gingras (1992), (AB CA),120 A.R. 300 (C.A.) at para. 14. [51] From a certain perspective, I admit it would be helpful for the defence to know the limits of a police officer’s investigativeknowledge and ability.

To explore that has always been a fertile ground for cross-examination. This utility does not mean that suchinformation should fall under the first party disclosure duty of the Crown. I have found useful the comments made by the Ontario Courtof Appeal in a different but related context in R. v. Yumnu (2010), 2010 ONCA 637 , 260 C.C.C. (3d) 421. In that case, theaccused appealed his conviction on the basis that the jury selection process was flawed due to the failure by the Crown to disclose theresults of criminal record checks conducted on prospective jurors prior to jury selection.

The Crown had an obligation to disclose theresults of those criminal record checks on prospective jurors. However, on the facts of the case, the Court held that the non-disclosuredid not affect the reliability of the verdicts rendered nor did it compromise the actual or apparent fairness of the trial. In the course oftheir reasoning, the justices concluded that not everything that could be of benefit to the defence which was in the possession of theCrown would fall under the disclosure obligation of the prosecutor (at para. 76): The disclosure obligations of the prosecutor are well defined.

Circumscribed, not infinite. Those obligations are not co-extensive withthe entire storehouse of information, knowledge and experience, in brief the stock-in-trade a prosecutor may acquire by exposure to dailyappearances in the courts and interactions with the police witnesses, victims and the communities at large in their jurisdiction.

Equalityof knowledge and community intelligence, like equivalence in skill and experience as between opposing counsel in a criminal trial, is nota constitutional requirement or a principle of fundamental justice. [52] While the defence request here, especially in oral submissions, is more specific and narrow, I see no fundamental differencein principle why the materials sought by the accused should be treated in another way. I accept that the interrogation of young childrenmay require special skill.

However, it is not a constitutional requirement that the defence know everything about the training and skill ofpolice officers in general and D.C. McParland in particular in this area. Many other types of investigations conducted by the police, forexample, surveillance, maintenance of the integrity of a crime scene, interrogation of accused persons, undercover work, also involvespecific skill and extra training.

Merely because a prosecution involves one or more aspects of that police technique does not mean thatthe whole library of information and materials police officers are exposed to in their lifetime in relation to that investigative techniqueshould fall under the first party disclosure obligation of the Crown. In my opinion, the detrimental consequences of such an inordinatelybroad

interpretation of what falls within the Crown disclosure obligation are patent. [53] For these reasons, I find that the police have not failed in their obligation to disclose to the Crown these materials soughtand the motion in this respect is dismissed. That being said, the defence is free to bring an O’Connor application if he chooses. Released: March 29, 2012. Signed: