Case Report – Crown violates section 8 by obtaining employment records via subpoena

On July 16th, Mr. Justice Gary Trotter (formerly of Queen’s University Law School) held that the Crown conducted an unlawful search and seizure by obtaining an accused person’s employment records via subpoena rather than search warrant.

While noting that subpoenas are issued within a judicial process, he accepts the defence argument that proceeding by way of subpoena to seek records belonging to an accused person deprives the accused person of the procedural safeguards embedded in the Criminal Code search warrant provisions.  He states:

The police should have applied for a search warrant to obtain Ms. Incognito-Juachon’s employment records.  In failing to do so, the police denied her the protections of the search warrant provisions of the , which are now underwritten by s.8 of the Charter.  The police were no more entitled to access Ms. Incognito-Juachon’s employment records with a subpoena than they were entitled to subpoena her legal file from her current or former counsel: see Lavallee, Rackel & Heintz v. Canada (Attorney General); White, Ottenheimer & Baker v. Canada (Attorney Genera): Regina v. Fink, (2002), 167 C.C.C. (3d) 1 (S.C.C.).  A search warrant is required in both instances. This is not to suggest that the police cannot use the subpoena process for investigative purposes, once judicial proceedings are afoot.  However, in this case, where the sole purpose in obtaining the subpoena was to obtain the private records of an accused person, an application to obtain a search warrant was required.  The failure to obtain a search warrant infringed Ms. Incognito-Juachon’s rights under s.8 of the Charter.

There’s a significant discussion of an employee’s interest in his or her employment records, which Trotter J. notes are deemed to be “private records” for certain purposes under the Criminal Code.  While finding that an accused person’s interest in his or her employment records is of such a character to demand the Crown retrieve them via search warrant, he also notes that employment files are kept by employers subject to a broad right of use (and therefore, in the circumstances, the Crown’s breach was less serious).  

Most employers would have a different view about employment records than Trotter J. – at least regarding non-medical employment records.  They would say they “own” the records subject to any employee rights granted under contract or by privacy statute. This position is not threatened by this case, which has a significance that’s defined to its criminal context.

R. v. Incognito-Juachon, 2008 CanLII 36164 (Ont. S.C.J.).