McNeil: SCC to Examine the Reasonable Expectation of Privacy in Police Disciplinary Records

Last Thursday, the Supreme Court of Canada (“SCC”) granted leave to appeal to two cases, one of which was R v McNeil, [2006] OJ No 4746 (ONCA). This case involves an appeal from an Ontario Court of Appeal decision dealing with the proper balance between Crown disclosure obligations and the privacy interests of Crown and 3rd-party record holders in a criminal appeal.

In May of 2004, Mr. McNeil was convicted of various drug-related offences. On appeal, he made a R v O’Connor, [1995] 4 SCR 411 [O’Connor] application in conjunction with an application to admit fresh evidence. The Court of Appeal described an O’Connor-type procedure for disclosure in footnote 5 of the appeal decision as

a two-step procedure at the appellate level, in which the court makes an initial determination of relevancy before determining whether the records should be produced. If the relevancy threshold is met, in the second step, the records are produced to the court so that the court can balance the third party privacy interests and the interests of the applicant in determining whether to make an order for production to the applicant.

If the O’Connor application was recognized and successful, it would allow McNeil access to records relating to the criminal and disciplinary charges against his arresting officer that were held by the Provincial Crown and the Barrie Police Service. Since these records may speak to the credibility of the officer’s trial testimony and the purpose for which the arresting officer first approached McNeil, the Crown and the counsel for the Barrie Police Service resisted their production.

In ordering production of Crown documents, the Court of Appeal went through a two-part analysis: i) Do the records in issue meet the applicable relevancy threshold for appellate production, and ii) Does the O’Connor test even apply to the records?

In finding that records in the possession of the Provincial Crown did not fall within the scope of employment records, and thus are not afforded a presumption of an expectation of privacy, the Court of Appeal stated that these records do not come under the scope of the O’Connor test. In doing so, the decision seemingly sided in favor of the appellant’s ability to prosecute his or her appeal, to the detriment of the privacy interests of the arresting officer – to the extent that the privacy interests aren’t even weighed by the court.

It will be interesting to see whether the SCC will approve of this type of analysis. Will they affirm this decision in ensuring that those convicted of crimes will get access to relevant records that will help them with their appeal? Or, will they instead go with a more privacy-protective route, and subject these records to the O’Connor test (notably, a position that counsel for both sides in arguments to the Court of Appeal readily accepted (see para 85 of the appellate decision))? Only time will tell I suppose.