Her Majesty the Queen - v. -, 2020 SKPC 23

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 23 Date: Ju ne 22, 2020 Information: 90195454 Location: Fort Qu'Appelle _____________________________________________________________________________ Between: Her Majesty the Queen - and - Clifford Donald Oakes Appearing: Mr. Steven D. Robertson For the Crown Mr. Bruce Campbell For the Accused DECSION RE: APPLICATION TO COMPEL DISCLOSURE D. KOVATCH , J [ 1 ] The accused, Clifford Donald Oakes is charged with one count of sexual assault contrary to

section 271, and one count of sexual touching of a person under 16, contrary to

section 151 of the Criminal Code , RSC 1985, c C-46 [ Code ]. The Crown proceeded by indictment on both counts. Both counts relate to the same complainant. There is an order banning publication of information identifying the Complainant. The information alleges that the charges arose out of a single incident that occurred on September 7, 2019. [ 2 ] A warrant was issued for the arrest of the accused. He was arrested, and first appeared before the Court on September 12, 2019. He was released on bail on September 16, 2019.

[3] On September 29, 2019, Mr. Andrew Campbell, for the Crown, wrote to defence counsel. A copy of that letter was filedwith the Court. It reads in part as follows: Pursuant to sections 278.1 and 278.2 of the Criminal Code, RSC 1985, c C-46, the Crown acknowledges that it is in possession ofmedical record(

s) of the complainant . . . containing personal information for which there is a reasonable expectation of privacy. . . . These records were not prepared by any persons’ responsible for the investigation or prosecution of the alleged offence(s). Please acceptthis letter as notice that the Crown is in possession of the record pursuant to

section 278.2(3) of the Criminal Code. The Crown has determined that the medical record(

s) contain(

s) personal information for which there is a reasonable expectation ofprivacy. The Crown is not prepared to waive sections 278.2 or 278.3 to 278.91 of the Criminal Code. The Crown is not prepared todisclose the records’ full contents. . . . If defence counsel seeks disclosure of the record(

s) in their entirety the Crown submits that the accused must bring an application pursuant to the relevant sections of the Criminal Code. [4] Attached to that letter is a single page from an RCMP general occurrence report regarding the file. That general occurrencereport indicates in part that: at 22:31 hours (on September 7, 2019), Cst. Stregger (of the Fort Qu’Appelle Detachment of the RCMP)informed that the complainant “was referred to Regina for further examination”. The same occurrence report then states as follows: At 3:41 hours [sic] Cst.

Stregger was informed that Barbara Beaurivage had called inquiring about talking to Cst. Stregger. Cst. Streggercalled Barbara Beaurivage informed Cst. Stregger that there was a sexual assault kit going to be done. Barbara Beaurivage asked thatsomeone would come and pick up the evidence that is retrieved from the sexual assault kit. Cst. Stregger informed Barbara Beaurivagethat Cst. Stregger would come to Regina and retrieve the evidence. At 01:14 hours, (on September 8, 2019) Cst. Stregger seized 1A of the sexual assault kit. At 01:16 hours, Cst. Stregger seized 1B of the sexual assault kit. At 01:17 hours, Cst.

Stregger seized 1E of the sexual assault kit. At 01:18 hours, Cst. Stregger seized 6A and 6B, (external genatailia swab) of the sexual assault kit. At 01:20 hours, Cst. Stregger seized 7A and 7B, (vaginal swab) of the sexual assault kit. At 01:24 hours, Cst. Stregger seized the DNA reference sample of the sexual assault kit. At 01:26 hours, Cst. Stregger seized the box containing the entire sexual assault kit.

The nurse practitioner that performed the sexual assault kit was Barbara Beaurivage of Regina General Hospital. [5] Defence counsel then brought an application requesting an order directing the Crown to disclose the records of the sexualassault kit, together with related documents giving analyses of the exhibits and samples seized. The application was first advancedbefore His Honour Judge Wiegers, on February 24, 2020. The Court’s endorsement sheet for that day says the matter is adjourned: “ForArgument. 278 or Stinchcomb (Sp?)” Further: “Defence Requests further disclosure—Sex assault kit.

Judge Wiegers not seized.” [6] The matter came before me for argument on March 5, 2020. During this argument, defence counsel was very clear that hewas only seeking disclosure of the sexual assault kit, and forensic analysis of any samples seized. The major issue debated was whetherthe sexual assault kit should be disclosed pursuant to R v Stinchcombe, (SCC), [1991] 3 SCR 326 [Stinchcombe], ordefence counsel had to make an application under

section 278.3. Though unstated by the Court or either counsel, I would suggest therewas an implicit agreement, that if defence counsel wanted any medical records, an application under

section 278.3 would be required. [7] Defence counsel argued that the defence was entitled to receive these reports as part of the general disclosure of the Crown’scase pursuant to the common law developed since Stinchcombe. He argued that the defence has always been entitled to receive theresults of the sexual assault kit since Stinchcombe, and that the Crown’s refusal to provide this was the result of a fairly recent policychange, not founded in law.

He further argued that the records and information he seeks as part of this application are not “medicalrecords”, within the meaning of sections 278.1 to 278.95, inclusive of the Code. [8] The Crown argued that the sexual assault kit and forensic analyses of any samples seized were pieces of personal

information created with a reasonable expectation of privacy. Further, that sections 278.1 to 279.95 are applicable. The Crown submits that in the absence of an application pursuant to these sections, the Court does not have the jurisdiction to direct disclosure of the records. [ 9 ] In argument, I questioned Mr. Robertson why the results of the sexual assault kit are no longer routinely disclosed to defence counsel. Mr. Robertson advised the Crown’s view of the law had changed. I suggested that there should be some legal analysis to support the changed legal

interpretation and change of policy, and requested this be provided to the Court. Mr. Robertson asked for time to provide this and on April 7, 2020, served and filed a Brief of Law. In this Brief of Law, Crown Counsel spoke of a document entitled, “Child and Family Medical Services Report” and argued it was a medical report.

However, in my view, Crown counsel did not advance any legal reasoning or argument that the sexual assault kit, in and of itself, should not be disclosed. [ 10 ] For the following reasons, I am of the view that the prior policy of the Crown, to routinely disclose the results of the sexual assault kit, pursuant to Stinchcombe and the common law, was the proper and legal practice. The change in practice, as seen in this case, was not proper in that the results of the sexual assault kit and any forensic analyses are not medical records within the meaning of

section 278.1 of the Code . The Crown remains obligated to disclose the results of the sexual assault kit pursuant to Stinchcombe and the common law that has developed since then. In this case, there may have to be some editing, redaction or other revision of the disclosure package to eliminate any disclosure of “medical records”. But the disclosure of the sexual assault kit must be made. There will be an order accordingly. Analysis [ 11 ] I begin with some general observations and points about the development of the law in this area. The Supreme Court of Canada rendered its decision in Stinchcombe in 1991.

It provided that the Crown is obligated to disclose all relevant, non-privileged information in its possession or control so as to allow the accused to make full answer and defence. There were further cases and expansions in the common law as it developed and these principles were enshrined. Suffice it to say that the obligation of the Crown became fairly general and far reaching. Pursuant to that general development of the law, it became routine for the Crown to make disclosure of the sexual assault kit.

The Crown made that disclosure because it was legally obligated to do so, on the basis of the law as it had developed following Stinchcombe . [ 12 ] Clearly, the statutory regime created under sections 278.1 through 278.95 establishes an exception to the Stinchcombe disclosure regime. It seems to me that by these sections, Parliament generally recognized that all individuals have the right to seek assistance and services from professional counsellors, other helping professionals, the medical profession, etc.

Further, that when an individual engages one of those professionals, there is a reasonable expectation of privacy. Further, that an individual who becomes the victim of a criminal offence, does not give up the right to obtain such services or their reasonable expectation of privacy while obtaining such services.

These sections of the Code are designed to specifically deal with third party service providers and the records that are created by them. [ 13 ] I go through all of this to make the point that the sexual assault kit and the analyses from that kit does not neatly fit within the description of the documents described above. On the night of September 7 and in the early morning hours of September 8, a sexual assault kit was completed at Regina General Hospital. These samples were not obtained for medical diagnoses or treatment of the Complainant.

The sexual assault kit and all samples obtained were immediately turned over to police. In my view, the medical professionals were not creating medical records on the Complainant by completion of the sexual assault kit. Rather, they were acting as agents of the police and gathering evidence for the police to assist in their investigation and this prosecution. They took the samples, as opposed to the police, because they have the training and position to insure the samples are taken properly and professionally.

The simple fact that medical people took the samples, does not make these samples or the records medical records. They remain an essential part of the police investigation. [ 14 ] With these general and more theoretical observations, I now turn to look at the specific provisions of the Code .

Section 278.2(1) states in part as follows: Except in accordance with sections 278.3 to 278.91 , no record relating to a complainant or a witness shall be produced to an accused . . .

[15]

Section 278.3(1) reads in part: An accused who seeks production of a record referred to in subsection 278.2(1) must make an application to the judge . . . [16]

Section 278.4 speaks of a judge ordering the record be produced for review by the judge. Under

section 278.5, the judge mayorder the person who has possession of the record to produce it. The sections go on from there. Each of the sections refer to “therecord” and speak of a judge examining and making orders regarding “the record”. The Crown argues that the appropriate applicationunder

section 278.3 must be made, and then the Court will determine whether this is a medical record with a right of privacy anddetermine whether disclosure is appropriate. With all due respect, the Crown effectively ignores the definition of record contained insection 278.1 of the Code, and ignores the fundamental threshold question of whether the sexual assault kit is a medical record.

Section278.1 reads as follows: 278.1 For the purposes of sections 278.2 to 278.92, “record” means any form of record that contains personal information for whichthere is a reasonable expectation of privacy and includes medical, psychiatric, therapeutic, counselling, education, employment, childwelfare, adoption and social services records, personal journals and diaries, and records containing personal information the productionor disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made bypersons responsible for the investigation or prosecution of the offence. [emphasis added] [17] In my view, sections 278.2 and following, only apply to a “record”, as defined in

section 278.1. If this is a record as definedby

section 278.1, then the Crown is correct and the defence must make the application under

section 278.3. But, the defence does notneed to make a

section 278.3 application, and then have the Court determine that this is not a record within the meaning of 278.1. Rather, if the Court determines this is not a record within the meaning of

section 278.1, then

section 278.2 and following have noapplication, and the documents must be produced pursuant to the common law since Stinchcombe. [18] The underlined portion of

section 278.1 clearly indicates that “records made by persons responsible for the investigation orprosecution of the offence” are not a record so that

section 278.2 would have no application to them. The general occurrence reportquoted at length above, clearly states that the nurse practitioner performed the sexual assault kit and that the entirety of the sexualassault kit was immediately turned over to Cst. Stregger of the Fort Qu’Appelle RCMP. It is my understanding (from another case) thatthe Police prepare and provide the sexual assault kits to the hospitals. Medical personnel complete the kits and turn them over to thePolice. I do not know how it could be contended that this sexual assault kit was not prepared for a person responsible for theinvestigation or prosecution of this offence. [19] I believe I am supported in this

interpretation of the legislation by the case law. I refer firstly to R v McNeil, 2009 SCC 3, [2009] 1 SCR 66. The Court referred to the “fruits of the investigation”. It clearly concluded that the “fruits of theinvestigation” were to be disclosed pursuant to Stinchcombe. [20] R v Quesnelle, 2014 SCC 46, [2014] 2 SCR 390, also involved a sexual assault prosecution. During the course of thatprosecution, it became known that there were earlier complaints and police occurrence reports regarding the complainant and otheraccused or potentially accused persons.

In paragraph one of the judgment, the Court stated the issue as follows: [1] In sexual offence cases, the Criminal Code, R.S.C. 1985, c. C-46, limits the disclosure of private records relating to complainantsand witnesses. The relevant provisions, ss. 278.1 to 278.91, known as the Mills regime, permit disclosure only where a record is likelyrelevant and its disclosure is necessary in the interests of justice.

The regime applies to “records” that contain personal information forwhich there is a reasonable expectation of privacy, unless they are made by persons responsible for the investigation or prosecution ofthe offence. The issue on appeal is whether these provisions apply to police occurrence reports prepared in the investigation of previousincidents involving a complainant or witness and not the offence being prosecuted.

The question is whether these unrelated policeoccurrence reports count as “records” as defined in s. 278.1, such that the statutory disclosure limits apply. [21] The Court concluded that the prior made occurrence reports were records under

section 278.1 and were not exempted becausethey were not made by persons responsible for the investigation or prosecution of this offence. It seems to me to be implicit throughoutthe entire judgment that had the occurrence reports been prepared for the prosecution of “this offence”, they would not be records asdefined by

section 278.1, and would have been disclosable under Stinchcombe. [22] During the course of the judgment, the Court made the following statements, which are particularly relevant to the case atbar. In paragraph 41: [41] That is not to say that all disclosures of personal information by the police unreasonably intrude upon privacy. Where privateinformation becomes part of a criminal case, the disclosure of that information to the court, the accused, and to the public is reasonableand unavoidable. For example, police occurrence reports made in the course of the investigation of the offence being prosecuted must bedisclosed under Stinchcombe…

[46] Even records that give rise to a reasonable expectation of privacy are not covered by the Mills regime if they fall into the exemption contained in s. 278.1: 278.1 … “record’ … does not include records made by persons responsible for the investigation or prosecution of the offence… … [55] The definition of “record” in s. 278.1 serves a gatekeeping function within the regime. The reasonable expectation of privacy test sweeps in records that merit the protection afforded by the Mills regime. The exemption further contributes to the gatekeeping role of the

section by bypassing the balancing process for records that Parliament recognized should always be produced. [56] Records created in the investigation of the offence are presumptively relevant to an issue at trial and it is in the interests of justice for the case against the accused to be disclosed to the defence.

There is no need to consider such records under the second step of Mills because they will always be produced anyway -- the exemption is eminently logical… At paragraph 65: [65] Because the Crown is an officer of the court, with undivided loyalty to the administration of justice, the Crown is not in an adversarial role in relation to its disclosure obligations. The information obtained through investigation is “not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done” ( Stinchcombe , at p. 333).

The Crown has an obligation under s. 278.2(3) of the Criminal Code , to notify the accused of records in its possession covered by the Mills regime. Moreover, as discussed above, both police and Crown have common law duties aimed at ensuring proper disclosure, which apply notwithstanding the application of the Mills regime. [66] For these reasons, I conclude that s. 278.1 exempts records made in relation to the offence being prosecuted not other records made by the same police or prosecution agencies. [ 23 ] R v R.M.R. , 2019 BCSC 1093 deals with an application for a ban on publication.

In the Introduction to the decision, the Court set out certain facts and agreements. At para 7, the Court stated: R.M.R.’s notice of application also referred to his intended use of the sexual assault nurse examiner’s (“SANE”) records from her examination of D.H. All parties agreed that the SANE records were disclosed to R.M.R. as part of the Crown’s disclosure and are part of the investigative records with respect to this offence and, as a result, exempted from the definition of “record” under s. 278.1.

The Dual Purpose Records [ 24 ] During the course of my research, I was made aware of R v Walker , 2012 SKQB 224 , 397 Sask R 266 [ Walker ]. Madam Justice Schwann, as she then was, dealt with an application for a stay, based upon unreasonable delay of the trial. Much of the delay was related to adjournments for disclosure of the sexual assault kit and related medical records.

At para. 39, she states: The records seized with the sexual assault kit were prepared by medical staff employed by for the dual purpose of both gathering evidence to be used in the potential prosecution of an offence and with examining and treating a patient who attended the hospital for treatment. As such, the medical records seized with the sexual assault kit were medical records. [ 25 ] It seems to me that the record prepared at Regina General Hospital in the early morning hours of September 8, 2020, may have been such a dual purpose record.

It is entitled, “Child and Family Medical Services Report.” With this name, the report may have contained diagnostic information on the Complainant and proposed treatment or therapy. If this is indeed the situation, based upon the Walker case, this report would be a medical record and a

section 278.3 application would be required to obtain disclosure of this report. [ 26 ] However, in Walker , Madam Justice Schwann only indicated that the dual purpose report was a medical record. At no time did she indicate that the sexual assault kit was a medical record or that it should not be disclosed pursuant to Stinchcombe . In fact, the Judgment indicates disclosure had previously been made of the sexual assault kit together with some of the analyses. As a result, in this case, I would determine that the sexual assault kit is not a medical record and it remains disclosable under Stinchcombe .

[ 27 ] By way of future reference, it might be advisable for medical personnel to prepare two sets of records: One dealing with only the sexual assault kit, and a separate record dealing with clinical observations and treatment of the Complainant. [ 28 ] Until fairly recently, the sexual assault kit had been routinely disclosed to the defence. This is required by law. The defence is entitled to receive disclosure of the sexual assault kit and related analyses. I can think of no reason why records regarding the sexual assault kit must be mixed together with other medical records.

Moreover, I have held the defence is entitled to obtain disclosure of the sexual assault kit. Surely, this right of the accused is not lost merely because records of the sexual assault kit have been inadvertently mixed together with other medical records. It is my understanding that when making disclosure, the Crown will fairly regularly redact or otherwise remove information that should not be provided to the defence. In this case, I see no reason why the Crown cannot disclose the sexual assault kit and redact or otherwise remove personal or medical information that should not be disclosed.

Conclusion [ 29 ] There will be an Order that the Crown shall forthwith make available to defence counsel, the records regarding the sexual assault kit and the forensic analyses of any samples taken. This does not include personal or medical records not obtained for this investigation. Such information shall be redacted or otherwise removed from the disclosure package. [ 30 ] During the course of this matter, nothing was said about the allegations or the facts of the offence. I have made no determinations or findings regarding those facts.

Accordingly, I regard this ruling as nothing more than a ruling on the obligation of the Crown to disclose certain information. I do not regard myself as in anyway seized with further proceedings or hearings in this matter. Dated at the City of Regina, the Province of Saskatchewan this 22 day of June, 2020. _______________________ Kovatch, J