Law Times

Page 6 JuLy 22, 2013 • Law Times COMMENT u Editorial obitEr By Glenn Kauth Time to eliminate preliminary inquiries? S hould Canada's justice system move towards eliminating preliminary inquiries in all but the most serious cases? That's one of the questions as Alberta is touting the increased use of direct indictments in order to bypass preliminary inquiries and proceed more quickly to trial. The province made the change a few months ago following a high-profile stay in a sex-assault case and now credits the move with significant decreases in court delays. As with most things, the changes are controversial. Defence lawyers, for example, note the potential negative impacts on the rights of the accused and the fact that preliminary inquiries can help save time by narrowing the issues at trial. In addition, eliminating preliminary inquiries often merely punts a matter to a superior court and thereby crowds the docket there, D'Arcy DePoe, president of the Criminal Trial Lawyers' Association, told Postmedia recently. Given the results so far, the Alberta government is calling on the federal government to change the law to eliminate preliminary inquiries in all but the most serious cases. It argues they're no longer necessary, particularly since the advent of more stringent disclosure requirements largely eliminates one of the key reasons for having them. It's an interesting proposal that probably has some merit. But should Ontario follow Alberta's lead? This province already has a program, Justice on Target, that aims to improve court efficiency by, among other things, providing disclosure more quickly and eliminating unnecessary court appearances. The program has experienced difficulties but it has had some positive results despite concerns it could negatively affect the rights of the accused by inappropriately encouraging early guilty pleas. What's clear is that Ontario could implement the program more effectively, as is clear from Ontario Court Justice Melvyn Green's July 9 ruling in R. v. Huha. In that case, David Huha waited 19 months for an assault trial related to a Dec. 1, 2011, incident at a Toronto bus station. As the ruling notes, the sequence of events indicated significant and ridiculous disarray at the Crown's office. The prosecutorial mismanagement included sending defence counsel a DVD that had nothing to do with his client; failing to respond to the lawyer's inquiries; later asserting that the DVD didn't exist and then suggesting it wasn't relevant when it finally turned up; changing positions on whether a Crown or judicial pretrial was necessary; and not showing up for a scheduled judicial pretrial because the Crown was on vacation. Green, after taking the Crown to task for its gaffes, incomplete court briefs, and "dilatory disclosure," ultimately stayed the proceedings. While this case may be an exception, it's clear that more effectively implementing what we're already doing should come before more drastic changes such as eliminating preliminary inquiries. — Glenn Kauth Disclosure of police records a matter of national importance Y ou know that feeling that something's not quite right with a case. You haven't had all of the disclosure and your client is telling you the complainant is lying. She's a frequent flier who's known to the police, he says. He also claims she made a complaint of spousal abuse or, worse, sexual assault before. So you write to ask for disclosure. You request a list of contacts she has had with the local police force and the underlying police reports. They deny the requests. So what do you do now? The volley of letters is over and you have nothing to show for it except the Crown's assertion that she has no criminal record. Fortunately, the March 26  case of  R. v. Quesnelle  from the Ontario Court of Appeal is giving defence lawyers more access to information about complainants. In Quesnelle, there were two complainants. Prior to trial, the detective told a radio broadcast that when she reviewed one complainant's file, she had come across four or five occurrences in relation to sexual assaults. The provisions in ss. 278.1 to 278.9 of the Criminal Code protect the privacy interests of complainants in sexual Law Times the complainant. Defence matters and prohibit the disclosure of records. A Criminal counsel would then bring an  O'Connor  application for But what records? The law Mind materials in the possession of defines a record as "any form of the authorities. record that contains personal But even when acting in information for which there domestic assault or other viois a reasonable expectation of lent matters, the defence may privacy and includes, without run up against roadblocks. If limiting the generality of the you ask, the Crown will disforegoing, medical, psychiatclose any adult criminal reric, therapeutic, counselling, education, employment, child Rosalind Conway cord but usually not any outstanding matters. Commonly, welfare, adoption and social the Crown refuses to disclose services records, personal journals and diaries, and records contain- police reports when the same person ing personal information the production made a complaint about a third party. In Quesnelle, Justice Jean MacFaror disclosure of which is protected by any other act of Parliament or a provincial land noted that the bulk of earlier jurislegislature, but does not include records prudence had ruled that police reports made by persons responsible for the in- involving complainants or witnesses in vestigation or prosecution of the offence." unrelated matters are records for which Note how the provision specifically there's a reasonable expectation of privacy. Quesnelle  marks a major change for exempts records made by investigating defence counsel seeking disclosure of and prosecuting agencies. When defending a client in a sexual police occurrence reports and will be key matter, these provisions come into play. in preventing wrongful convictions. Since Authorities have even withheld police the investigating police officer examined reports in the Crown's possession where them, the four or five undisclosed there was no consent to disclosure by occurrences were first-party records. The Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 Tel: 416-298-5141 • Fax: 416-649-7870 • www.lawtimesnews.com Group Publisher . . . . . . . . . . . . . . . . . . . Karen Lorimer Editorial Director . . . . . . . . . . . . . . . . . . . Gail J. Cohen Editor. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . Charlotte Santry Copy Editor . . . . . . . . . . . . . . . . . . . . . . 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Law Times disclaims any warranty as to the accuracy, completeness or currency of the contents of this publication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd., 2075 Kennedy Rd., Toronto, ON, M1T 3V4 • 416-298-5141 clb.lteditor@thomsonreuters.com circulations & subscriptions $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing www.lawtimesnews.com Ontario Court of Appeal held that there's no privacy interest in police reports as the complainant expects that the matter will become public. And the court held that the defence could seek copies of other occurrence reports related to the two complainants and that the Crown must disclose them pursuant to its Stinchcombe disclosure obligation. A number of Ontario decisions have commented upon  Quesnelle. In  R. v. W.Y.,  for example, Justice Jane Kelly adopted its reasoning and ordered disclosure of all occurrence reports, records of arrest, synopses or similar documentation related to the complainant as produced by the Toronto Police Service. "When a complainant, such as this one, speaks to the police, she is not doing so in the context of a confidential relationship," she wrote. On May 23, the Crown filed a leave to appeal application with the Supreme Court in relation to Quesnelle. It seems likely the court will want to grant leave to deal with this pressing issue of national importance. Rosalind Conway is a certified specialist in criminal litigation. She can be reached at rosalind.conway@gmail.com. label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. Toronto ON, M1T 3V4. Return postage guaranteed. Contact Ellen Alstein at ............ 416-649-9926 or fax: 416-649-7870 ellen.alstein@thomsonreuters.com advertising Advertising inquiries and materials should be directed to Sales, Law Times, 2075 Kennedy Rd., Toronto, ON, M1T 3V4 or call: Karen Lorimer .................................... 416-649-9411 karen.lorimer@thomsonreuters.com Kimberlee Pascoe ...............................416-649-8875 kimberlee.pascoe@thomsonreuters.com Steffanie Munroe ................................416-298-5077 steffanie.munroe@thomsonreuters.com Sandy Shutt.......sandra.shutt@thomsonreuters.com

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