Ontario Div. Ct. says POA defendants get the benefit of McNeil disclosure notwithstanding inspector privacy claim

30 May

On May 3rd, the Divisional Court held that defendants to regulatory prosecutions under the Provincial Offences Act receive the benefit of “McNeil disclosure” notwithstanding a claim made by OPSEU on behalf of provincial regulatory inspectors.

McNeil disclosure” is a form of Crown disclosure facilitated by a 2009 Supreme Court of Canada decision. The Court held that the Crown has a positive duty to build-out the Crown brief by making “reasonable inquiries” of other Crown agencies and departments. This duty, said the Court, includes a duty to collect and disclose records of police misconduct, at least where an officer is likely to be a witness at trial and has a record with some arguably relevant blemishes.

After McNeil was issued, the Ontario Ministry of Labour initiated a procedure for conducting CPIC checks on Ontario Occupational Health and Safety Act inspectors to support its disclosure duties. OPSEU grieved, and in March 2011 the Grievance Settlement Board held that the Ministry’s procedure did “not accord with an appropriate exercise of management rights under the [OPSEU/OPS] Collective Agreement.” The Toronto Star headline read, “Province slammed for secret criminal checks on labour inspectors.”

The Divisional Court has now held that the GSB erred in finding that an inspector’s criminal record should not be the subject of first party disclosure pursuant to McNeil. It explained:

A comparison of the role of the investigator in an OHSA prosecution with that of a police officer in prosecutions under the Criminal Code or Controlled Drug and Substances Act does not provide a sufficient basis upon which to differentiate the inspector from the police officer. Though the powers of police officers are broader, the essence of McNeil focuses on the role of police as investigator, accuser and witness. An OHSA inspector has the same role. Furthermore, these regulatory offences can engage severe penal consequences for an accused.

The Crown must exercise its own discretion in deciding what information falls within the parameters of McNeil and what does not, but in the first instance the Crown is obliged to at least obtain the information. Not all police records are relevant to the credibility or reliability of the inspector’s evidence and therefore relevant to the accused’s rights to make full answer and defence. However, there is no reason to think an inspector’s criminal record will have less bearing on the right to make full answer and defence in a regulatory proceeding than a police officer’s record in a criminal prosecution.

I agree with the Crown that McNeil does not just establish a conduit for the disclosure by the police through the Crown’s office; rather it establishes an obligation on the Crown to solicit readily obtainable information, like a CPIC record, or an internal record of misconduct in employment records. The obligation to disclose what is in the “possession and control” of the prosecution is not limited to what it has in its physical possession but also includes readily obtainable information or documents.

This is good news for POA defendants, who will receive the same treatment as criminal defendants based on this reasoning.

The Court also upheld part of the GSB order that imposed certain procedural safeguards to protect inspector privacy. The Court suggested (on a point that doesn’t appear to have been argued) that the GSB jurisdiction to make such a privacy-protective order arose out of its jurisdiction to interpret and apply the Freedom of Information and Protection of Privacy Act. This source of jurisdiction is highly questionable given FIPPA is a records-based statute that has a broad employment-related records exclusion. Indeed, the view that FIPPA does not protect employee privacy is reinforced by the Information and Privacy Commissioner/Ontario’s own position. The IPC has lobbied for elimination of the exclusion so Ontario public sector employees can enjoy statutory privacy rights (see 2004 Annual Report). It also routinely declines jurisdiction over employment-related privacy complaints.

OPSEU v. Ontario, 2012 CarswellOnt 6293, 2012 ONSC 207.

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