HomeMy WebLinkAbout2009-3165.Union.11-03-28 Decision
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GSB#2009-3165
UNION#2010-0999-0008
IN THE MATIER OF AN ARBITRATION
Under
THE CROWN EMPLOYEES COlLECTIVE BARGAINING ACT
BETWEEN
BEFORE
FOR THE UNION
FOR THE EMPLOYER
lIEAKING
Before
THE GRIEVANCE SETILEMENT BOARD
Ontario Public Service Employees Union
(Union)
- aad -
The Crown in Right of Ontario
(MinistIy of Government Services)
Susan L Stewart
Kate Hughes
Counsel
CavaIhrzzo Hayes Shihon McIntyre & Cmnish ILP
BarristeIs and Solicitors
Brian Loewen
SeniOl" Counsel
Minis1Iy of Government Services
Raj Dhir
Dqmty Director
Minis1Iy of Labour, Legal Services Branch
December 21, 2010; January 6 and 13,2011
U_n
Employer
Chair
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Decision
[1] Initially before me were a policy and individual grievance arising from the
Union's allegation that CPIC (Canada Police Information Centre) information
was obtained and disclosed without consent in violation of privacy legislation,
the Human RiJ,ilits Code. the OPS Personnel Screening Checks Policy and
Guidelines and the Collective Agreement. Also at issue is the release of
information relating to internal disciplinary matters. The individual grievance
was resolved by the parties, however the policy grievance remains unresolved.
Although the policy grievance has application to all of the enforcement
ministries, the parties expedited this matter by proceeding on the basis of the
events that transpired within the Ministry of Labour.
[2] On FebTUaIY 11, 2010, an Occupational Health and Safety Inspector was
contacted by his Director. The Director told the Inspector that she had been
contacted by a lawyer at the Legal Services Branch who had advised her that a
CPIC check had been conducted on him, that it had come back with a emr and
that his manager would be contacted about the matter. The Inspector had not
been asked to consent to a CPIC check, nor had he been advised that one was
being conducted. The Inspector telephoned the lawyer, who called him back,
and advised him of the presence of another manager in the room, who would
be on the call to take notes of the discussion. The manager was not the
Inspectors manager. The Inspector was questioned about the results of the
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CPIC check, which relate to events of some years prior while he was in a
different job and, at the time of his testimony was the subject of a pardon
application. The Inspector was advised that information relating to the results
of his CPIC check would be disclosed. The Inspector subsequently requested
that the information not be released. Crown Counsel responded to him as
follows:
As Crown counsel we have a legal obligation to provide full and
timely disclosure of relevant material Unless information is clearly
irrelevant, it must be disclosed to the defence. Your criminal
record is presumed to be relevant to the defendant's right to make
full answer and defence. The Crown is therefore required by law to
disclose it and any related details.
[3] The Union made reference to the OPS Personnel Screening Checks Policy
which contemplates identification of positions requiring screening checks, with
notice to employees and their express written consent to obtain a screening
clearance involving a police record check. The Union also made reference to
the fact that written consent is contemplated by the Toronto Police Services,
according to a description on its website. The website also refers to the
execution of a memorandum of understanding with agencies for which
information will be provided. The OPS Policy contains various measures to
preserve confidentiality of information, including the involvement of what is
now the Security Services and Contingency Planning Branch. It is the position
of the Employer that because the CPIC information is being sought for law
enforcement purposes, consent is not required and the OPS Policy has no
application. The Employer contends that the obtaining and release of CPIC
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information is in accordance with an obligation on the part of the Crown to
provide full and timely disclosure to defendants involved in prosecutions under
the Occuvational Health and Safety Act due to a defendant's constitutional
right to disclosure of all relevant evidence in a timely fashion, including
evidence that may be used to impugn the credibility of officers involved in the
investigation. Reference was made to the decision of the Supreme Court of
Canada in R. v. McNeil (2009),238 C.C.C. 353 (CYcNeilj which, in the
Employers submission, clarified the obligation of the Crown to include as part
of the first party disclosure any information relating to serious misconduct of
an investigating officer and mandated an obligation to make inquiries into the
existence of such evidence and a corresponding duty to provide full and timely
disclosure. Following McN~ production :requests for CPIC records and
disciplinary records of MOL Inspectors have been made by defence counsel.
[4] There is correspondence between Ministry of Labour counsel and the
Toronto Police Services that reflects the request for and the obtaining ofCPIC
information about Inspectors. There is no written protocol setting out the
tenns of the arrangements with the Toronto Police Services, nor is there any
correspondence in regard to general arrangements. Reference was made in the
evidence adduced by the Employer to the training provided to Inspectors in
relation to disclosure obligations. However, clarification of the obligations as
were interpreted to be mandated by McNeil was not communicated to the
Inspectors. As well, the Inspectors were neither collectively nor individually
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given advance notice of the intention to obtain and disclose CPIC and other
information and, as previously indicated, their consent was not sought.
[5] Occupational Health and Safety Inspectors are responsible for
administering and enforcing the Occupational Health and Safety ~ and have
broad powers of investigation. Inspectors are designated as Provincial Offences
Officers under the Provincial Offences Act and are authorized to commence
Part I and Part III prosecutions. The testimony of an Inspector is typically
required to establish an offence.
[6] The lawyers in the litigation group at the Ministry of Labour are
employees of the Ministry of Attorney General, who are seconded to the
Ministry of Labour to provide legal services and conduct prosecutions in the
name of the Crown on behalf of the Attorney General under the Provincial
Offences Act for violations of the Occuvational Health and Safety Act and the
Emv10vment Standards Act. 2000. They review investigation briefs that are
prepared by Inspectors in order to assess whether there is a reasonable
prosPect of conviction and thus whether or not it would be in the public
interest to proceed with a prosecution. At the time of the initial proceedings
there were 679 ongoing prosecutions being handled by the litigation group at
the Ministry of Labour. Of these, 483 were Part III prosecutions that can result
in a corporation being fined up to $500,000 and individuals being fined up to
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$50,000 and/or sentenced to 12 months injaiL Fifty of these prosecutions
involved workplace fatalities.
[7] According to the declaration of the acting Deputy Director of Legal
Services at the Ministry of Labour, the following process was adopted following
the Janumy 16,2009 release of the McNeil decision by the Supreme Court of
Canada:
The MOL-LSB established a process to respond to its McNeil obligations.
This process involves responding to s:Pecific :requests made to Crown
Counsel by the defence for disclosure requests relating to inspector
misconduct. To further ensure that McNeil obligations are being met,
Crown Counsel also make proactive inquiries of inspector misconduct
when a matter is set down for trial or when the Crown had information in
its possession that indicates the existence of inspector misconduct.
In the above circumstances, Crown Counsel will initiate a Criminal Police
Investigation Check ("CPIC1 to ident:iJy criminal misconduct by the
inspector and make a :request to the Ministry for internal disciplinaJy
misconduct.
The CPIC is obtained through a written :request by a single designated
Crown Counsel in the Legal Services Branch to the manager of the
Toronto Police Service-Records Management Services Unit.
The CPIC results (Positive or negative) are provided by fax to the
designated Crown Counsel who then forwards the response to Crown
Counsel with carriage of the prosecution :file.
Where there is a positive result, the Deputy Director of the Legal
Services Branch informs the appropriate Regional Director of the
existence of the criminal record. The Particular inspector is informed by
Ministry management that the Crown Counsel has obtained a copy of the
inspectors criminal record. The inspector is provided with the Deputy
Directors name and contact information.
The process to obtain the internal disciplinaJy misconduct is for the
Crown Counsel with carriage of the prosecution :file to make a written
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request to the appropriate Regional Director asking whether or not the
Particular inspector has been disciplined.
The Crown has a legal duty to continually assess its case; that is, to
assess whether there is a reasonable prospect of conviction and, if so,
whether it continues to be in the public interest to continue the
prosecution.
Accordingly, if there is a positive CPIC or disciplinaJy result, the Deputy
Director will make follow-up inquiries. In the case of a positive CPIC
result, the Deputy Director follows-up directly with the inspector to
obtain necessaJY details relating to the criminal record. In the case of a
discipline record, the Deputy Director follows-up with the employer to
obtain further information regarding the type of discipline imposed, the
date imposed and the reason for discipline.
The details relating to the inspectors criminal and/or disciplinaJy record
are provided to Crown Counsel who have carriage of ongoing
prosecutions in which the inspector is involved or are reviewing
investigation briefs in which the inspector is involved. These details are
required to determine whether Crown Counsel in a particular case
should proceed with a prosecution in which the inspector is involved.
If the Crown concludes that there is no longer a reasonable prospect of
conviction or it is no longer in the public interest to proceed with the
prosecution, defence counsel is informed that the charges are being
withdrawn. In these circumstances, there is no need to disclose the
criminal and/or discipline record and other relevant details to the
defence.
If the Crown concludes that the prosecution will continue, the Crown's
disclosure obligation :requires that relevant information such as the
criminal and/or discipline record and other relevant details in the
Crown's possession be provided in a timely fashion to the defence.
Disclosure to defence counsel is made with strict conditions -
1) the information is to be used only to make full answer and defence to
the charges that are before the court,
2) the information is not to be disseminated or used for any other
purpose.
[8] The Supreme Court of Canada's decision in McNeil addresses its
previous decisions in R. v. Stinchcombe. [1991] 3 S.C.R. 326 and R. v.
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otonnor, [1995] 4 S.C.R. 411, both of which deal with issues of disclosure in
the context of criminal proceedings. Stinchcombe prescribes a duty on the
Crown to disclose all relevant information in its possession relating to the
investigation against the accused. The otonnor case dealt with how an
accused, charged with sexual offences, could obtain coPies of the therapeutic
records of the complainants from third party custodians, with the decision
providing the accused with a mechanism for accessing third party records that
fall outside the disclosure :regime contemplated in Stinchcombe. The
procedure endorsed to deal with that matter, commonly referred to as an
otonnor application, is for a subvoena duces tecum to be served on the third
party record holder and to make a motion for production before the Court with
jurisdiction in the matter, to be held before the trial commences. Any person
who has a privacy interest in the records targeted for production is given notice
of the proceedings and hence an opportunity to have those privacy interests
considered.
[9] The factual background giving rise to the decision in McNeil is set out in
that decision as follows:
4. McNeil was arrested by Constable Rodney Hackett and
other members of the Barrie Police Service in respect of an
alleged dmg transaction. He was subsequently prosecuted by
the federal Crown and convicted on multiple dmg charges,
including possession of marijuana and cocaine for the purpose
of trafficking. Hackett was the Crown's main witness in the
case against McNeil He was the only witness who testified to
the reasonable grounds supporting McNeil's arrest. In
addition, the trial judge's ultimate finding that McNeil's
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admitted possession of marijuana and cocaine was for the
purpose of trafficking turned on Hackett's credibility.
s. After his conviction but before sentencing, McNeil learned
that Hackett was engaged in dmg-related misconduct that
had led to both internal disciplinaJy proceedings under the
Police Services Act [citation omitted] and to criminal charges.
Following an aborted application to reopen his trial to
introduce evidence about Hackett's misconduct, McNeil chose
to proceed to sentence and appeal his conviction instead.
6. In a preliminary motion before the Court of Appeal for
Ontario, McNeil sought production of all documents related to
Hackett's misconduct, claiming that he required this material
to assist him in preparing an application to introduce :fresh
evidence on his apPeal from conviction. The police
disciplinary and criminal investigation documents at issue
were intermingled and were in the possession of both the
Barrie Police Service and the provincial Crown prosecuting the
criminal charges against Hackett. Both entities resisted
production and the federal Crown supported their opposition
to the motion.
[10] It should be noted, for purposes of clarity, that there were two separate
Crown offices involved in the matter, with the federal Crown involved in the
prosecution of McNeil and the provincial Crown prosecuting Hackett. In her
overview of the issues in McN~ Justice Charron, at paragraph 14, states as
follows:
... this case provides an appropriate context within which
to reiterate the respective obligations of the police and the
Crown to disclose the fruits of the investigation under R.
v. Stinchcombe. [1991] 3 S.C.R. 326, and to consider the
extent to which relevant police disciplinaJy records and
third party criminal investigation:files should form part of
this -:first party' disclosure package. The Crown's
obligation to disclose all relevant information in its
possession to an accused is well established at common
law and is now constitutionally entrenched in the right to
full answer and defence under s. 7 of the Canadian
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Charter of RiJ,ilits and Freedoms. The necessary corollaJy
to the Crown's disclosure duty under Stinchcombe is the
obligation of police (or other investigating state authority)
to disclose to the Crown all material pertaining to its
investigation of the accused. For the purposes of fillfilling
this corollaJy obligation, the investigating police force,
although distinct and independent from the Crown at law,
is not a third party. Rather, it acts on the same first
party footing as the Crown.
[11] The nature of the duty under Stinchcombe is described in paragraph 22
of the decision as follows:
The Stinchcombe :regime of disclosure extends only to
material in the possession or control of the Crown. The law
cannot impose an obligation on the Crown to disclose
material which it does not have or cannot obtain: R v.
Stinchcombe. [citation omitted]. A question then arises as to
whether the .Crown..., for disclosure purposes, encompasses
other state authorities. The notion that all state authorities
amount to a single .Crown'" for the purposes of disclosure
and production must be quickly rejected. It :finds no support
in law and, given our multi-tiered system of governance and
the realities of Canada's geography, is unworkable in
practice. As aptly explained in R. v. Giru!.ras (1992), 120 A.R.
300 (C.A.), at para 14:
If that line of reasoning were correct, then in order to meet
the test in Stinchcombe. some months before every trial
every Crown prosecutor would have to inquire of every
department of the Provincial Govemment and every
department of the Federal Govemment. He would have to
ask each whether they had in their possession any records
touching each prosecution upcoming. It would be
impossible to carry out 1% of that task. It would take many
years to bring every case to trial if that were required.
Accordingly, the Stinchcombe disclosure :regime only extends
to material relating to the accused's case in the possession
or control of the prosecuting Crown entity. This material is
commonly referred to as the '"'fruits of the investigation"'.
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[12] The Crown's obligation to obtain information is further addressed under
the heading '"'Crown Counsel's Duty to Inquire" and states as follows:
48. As stated earlier, the suggestion that all state
authorities constitute a single entity is untenable and
unworkable. In order to fulfill its Stinchcombe disclosure
obligation, the prosecuting Crown does not have to inquire
of every department of the provincial government, every
department of the federal government and every police
force whether they are in possession of material relevant to
the accused's case. However, this does not mean that,
:regardless of the circumstances, the Crown is simply a
passive reciPient of relevant information with no obligation
to seek out and obtain relevant material.
49. The Crown is not an ordinary litigant. As a minister of
justice, the Crown's undivided loyalty is to the proper
administration of justice. As such, Crown counsel who is
put on notice of the existence of relevant information
cannot simply disregard the matter. Unless the notice
appears unfounded, Crown counsel will not be able to fully
assess the merits of the case and fulfill its duty as an
officer of the court without inquiring further and obtaining
the information if it is reasonably feasible to do so. Ryan
J.^- in R. v. Arsenault (1994), 153 N.B.R. (2d) 81 (CA.),
aptly described the Crown's obligation to make reasonable
inquiries of other Crown agencies or departments. He
stated as follows:
When disclosure is demanded or requested,
Crown counsel have a duty to make reasonable
inquiries of other Crown agencies or
departments that could reasonably be
considered to be in possession of evidence.
Counsel cannot be excused for any failure to
make reasonable inquiries when to the
knowledge of the prosecutor or the police there
has been another Crown agency involved in the
investigation. ...
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50. The same duty to inquire applies when the Crown is
informed of potentially relevant evidence pertaining to the
credibility or reliability of the witnesses in a case.
[13] The decision goes on to refer to a decision of the Court of Appeal in R. v.
Ahluwalia (2000), 138 O.A.C. 154 where the Court comments at paragraphs
71-72 on the faihrre of the Crown's failure to inquire further when confronted
with the perjuIy of its own witness as follows:
For reasons not shared with this court, the Crown does not
appear to have :regarded itself as under any obligation to get
to the bottom of this matter ...
The Crown has obligations to the administration of justice
that do not burden other litigants. Faced with its own
witnesses' peIjmy and the fact that the peIjured evidence
coincided with the incomplete disclosure that the Crown
says it innocently passed to the defence, the Crown was
obliged to take all reasonable steps to find out what had
happened and to share the results of those inquiries with the
defence.
The decision of the Supreme Court concluded that a proper fulfillment of the
dual role of advocate and officer of the court results in Crown counsel being
able to -midge much of the gap between first party disclosure and third party
production"'.
[14] The decision goes on to discuss the obligation of the police to disclose
relevant information to the prosecuting Crown in accordance with obligations
prescribed by regulation in many jurisdictions, including Ontario, pursuant to
the Police Services Act. The decision then states as follows:
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53. While the obligation itself is firmly established, the
difficulty lies in identiJYing the contours of relevance for the
purposes of the police's first and party disclosure obligation.
The Particular question that this case exemplifies is whether
information of misconduct by a police officer involved in the
case against the accused should form part of the first party
disclosure package provided to the Crown for its assessment
of relevance according to the edicts of Stinchcombe.
Obviously, the accused has no right to automatic disclosure
of every aspect of a police officer's employment history, or to
police disciplinaIy matters with no realistic bearing on the
case against him or her. However, where the disciplinary
information is relevant, it should form part of the :first party
disclosure package, and its discovery should not be left to
happenstance.
54. When the police misconduct in question concerns the
same incident that forms the subject-matter of the charge
against the accused, the police duty to disclose information
concerning police disciplinary action taken in respect of that
misconduct is rather self-evident. To state an obvious
example, if a police officer is charged under the applicable
provincial legislation for excessive use of force in relation to
the accused's arrest, this information must be disclosed to
the Crown. Where the misconduct of a police witness is not
directly related to the investigation against the accused, it
may nonetheless be relevant to the accused's case, in which
case it should also be disclosed. For example, no one would
question that the criminal record for peIjUIY of a civilian
material witness would be of relevance to the accused and
should form part of the :first party disclosure package. In the
same way, :findings of police misconduct by a police officer
involved in the case against the accused should be disclosed.
[15] The decision refers to the conclusions of a review conducted by the
Honourable George Ferguson, Q.C., that resulted in a 2003 report entitled
Review and Recommendations Concerning Various Asvects of Police
Miscondug, which concluded that leaving the entire question of access to
police disciplinaIy records to be determined under the O'Connor :regime for
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third party production was neither efficient nor justified. The Ferguson Report
recommended the automatic disclosure by police upon :request by the Crown of
information relating to certain convictions and outstanding charges as well as
findings of guilt for misconduct after a hearing under the Police Services Act
and any charges of misconduct under that Act for which a Notice of Hearing
has been issued. The Court notes the reference in the Ferguson Report to the
Crown's role as '"'gatekeeper'" in paragraph 58 of the decision, which is
described as '"'... sorting out what parts of this material., if any, should be
turned over to the defence in compliance with the Crown's Stinchcombe
obligation of disclosure"". The Court went on to note that: -rile Ferguson
Report made the further recommendation that any concerned officer who was
the subject of disciplinaJy records produced to the Crown be notified in writing
and be given the opportunity to make submissions to the Crown"'. Justice
Charron, for the Court, concluded as follows:
59. I agree that it is '"'neither efficient nor justified" to leave the
entire question of access to police records to be detennined
in the context of the O'Connor :regime for third party
production. Indeed, as discussed earlier, the disclosure of
relevant material., whether it be for or against an accused, is
part of the police corollaJy duty to participate in the
disclosure process. Where the information is obviously
relevant to the accused's case, it should form part of the first
party disclosure package to the Crown wi1Jwut prompting
[emphasis in the original]. For example, as was the case
here, if an officer comes under investigation for serious dJug-
related misconduct, it becomes incumbent upon the police
force, in fn lfillment of its corollaJy duty of disclosure to the
Crown, to look into those criminal cases in which the officer
is involved and to take appropriate action. Of course, not
every finding of police misconduct by an officer involved in
the investigation will be of relevance to an accused's case.
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The officer may have played a peripheral role in the
investigation, or the misconduct in question may have no
realistic bearing on the credibility or reliability of the officer's
evidence.
[16] The Court recognizes, however, that even in the case of police in
connection with criminal proceedings, there is an important role for the Court
in relation to the protection of privacy interests, which can be dealt with by an
otonnor motion. In paragraph 45 of the decision there is reference to the
Particular importance of ascertaining the tnIe relevancy of documents targeted
for production when police disciplinaIy records are involved. It is noted that
police disciplinaIy records "'... may relate to employment issues or other
matters that have no bearing on the case against the accused". The decision
goes on to state that:
The risk in this context is that disclosure, and by extension trial
proceedings, may be sidetracked by irrelevant allegations or
findings of police misconduct. Disclosure is intended to assist an
accused in making full answer and defence or in prosecuting an
apPeal, not turn criminal trials into a conglomeration of satellite
hearings on collateral matters.
[17] The otonnor regime is specifically preserved by McNeil That decision
notes in paragraph 15 that while records relating to :findings of serious
misconduct by police officers involved in the investigation must be provided
where the misconduct is either related to the investigation or it could
reasonably impact on the case against the accused, with the police then obliged
to provide this to the Crown to be included in the first party disclosure
package; 'Troduction of the disciplinary records and criminal investigation files
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in the possession of the police that do not fall within the scope of the :first party
disclosure package is governed by the Otonnor regime for third party
production'"'. The O'Connor test is one of likely relevance, recognizing that a
requirement that the defence illustrate the precise manner in which the
documents would be used at trial would be unfair, given that the accused
would not have seen the documents. Paragraph 33 of McNeil specifically refers
to the role of an Otonnor motion in relation to matters of credibility and
states, in reference to the O'Connor regime, that
An "'issue at trial" here includes not only material
issues concerning the unfolding of the events which
form the subject matter of the proceedings, but also
"'evidence relating to the credibility of witnesses and
to the reliability of other evidence in the case"
(O'Connor at para 22).
In R. v. Dare Foods Limited. [2004] ONCJ 201 (CanLIQ, O'Connor was applied
in connection with a prosecution pursuant to the Occupational Health and
Safety Act. with the Court noting that Otonnor gave rise to procedures to deal
with: "'on confidential medical and other similar records in the hands of a third
party" and goes on to note that "'The purpose was to endeavour to :find an
appropriate balance in each case, between the competing Charter right to
privacy and the right to make full answer and defence to a charge". In that
case, the disclosure of medical records was ordered.
[18] While McNeil applies to proceedings under the Criminal Code, the
Employer points out that in R. v. Vanbots Constmction Corp., [1966] O.J. No.
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347, the Provincial Court Judge concluded that disclosure obligations existed
in connection with a prosecution by the Ministry of Labour under the
Occuvational Health and Safety Act and at paragraph 16 stated that:
If convicted, the defendant Preston is liable to a substantial
fine or imprisonment or both, and the corporate defendant
Vanbots faces a substantial fine. The allegations are serious
and the consequences grave. I find that the general
Principles of disclosure as set out in Stinchcombe would
apply to this case, notwithstanding that this matter does not
involve an indictable offence.
R. v. Fineline Circuits Ltd. [1991] O.J. No. 3463 is to a similar effect, where, in
the context of charges under the Environmental Protection ~ the Court refers
to the disclosure obligations on the part of the Crown and determined at
paragraph 7 that their breach: -rendered the trial fundamentally unfair, and
have caused a breach of the defendant's s. 7 Charter rights".
[19] It is appropriate, at this point, to address the matter of my jurisdiction, a
matter that Mr. Dhir focused on in his submissions. He is correct in his
observation that the Crown has a position of significant authority and
responsibility. Clearly, I have no jurisdiction to control the prosecutions arising
under the Occuvational Health and Safety Act. or the conduct of the Crown in
relation thereto. Those are matters that lie properly within the jurisdiction of
the courts that possess the authority to deal with such matters. My jurisdiction
arises from the provisions of the Crown Employees Collective ~ Act
and, more specifically, Bows from the Collective Agreement with OPSEU, which
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binds the Crown as the Employer. While, as in any case, a decision may have
implications in other arenas, it is my obligation to resolve a labour relations
matter. In this case, in response to a grievance alleging, inter alia, a breach of
privacy rights, the Employer has relied on the McNeil decision as a basis for its
actions and, accordingly, it is my obligation to consider its conduct in the
context of my jurisdiction to resolve a grievance.
[20] The interest of an individual in protecting the privacy of personal
information was addressed in an emploYment context in Re City of Ottawa and
Ontario Professional Fire:fuiliters Association (2007), 169 L.A-C. 4th 84 (Y.
PicheIj, which dealt with a policy of the City of Ottawa purporting to compel
consent of its employees to police record checks. The arbitrator concluded that
the policy did not comply with the employer's obligation to act in accordance
with an implied principle of reasonable contract administration. As was noted
there, employers generally have no difficulty obtaining consent to police and
criminal record checks, with such consent becoming a condition precedent to
hiring. However, it was concluded that in the absence of consent, an employer
does not have access to such information about current employees by virtue of
the employment relationship unless the emploYment is particularly security
sensitive. Mr. Picher points out that the Legislature did not carve out any
exceptions for employers in establishing a privacy interest in connection with
police and criminal records. There is reference at paragraph 36 of that decision
to the decision of the Supreme Court of Canada in R. v. Dvment, [1988] 2
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S.C.R. 417 where the various privacy interests protected by law are reviewed
and the following statement is made:
Finally, there is privacy in relation to information. This too is
based on the notion of the dignity and integrity of the individual.
As the Task Force put it (p. 13): '"TIlls notion of privacy derives
from the assumption that all information about a person is in a
fundamental way his own, for him to communicate or retain for
himself as he sees fit." In modern society, especially, retention of
information about oneself is t:Xl1lt;mely important. We may, for one
reason or another, wish or be compelled to reveal such
information, but situations abound where the reasonable
expectations of the individual that the information shall remain
confidential to the persons to whom, and restricted to the purposes
for which it is divulged, must be protected.
More recently, the Ontario Court of Appeal in Cash Coverters Canada Inc. v.
Oshawa (Citvl [2007] ONCA 502 (CanLII), commented at paragraph 29 as
follows:
The right to privacy of personal information is interpreted in the
context of the history of privacy legislation in Canada and the
treatment of that right by the courts. The Supreme Court of
Canada has characterized the federal Privacv Act as quasi-
constitutional because of the critical role that privacy plays in a
free and democratic society. In LaviJwe v. Canada (Office of the
Commissioner of Official T .anPllapesl, [2002] 2 S.C.R. 773, Gonthier
J. observed that exceptions from the rights set out in the act
should be interpreted narrowly, with any doubt resolved in favour
of preserving the right and with the burden of persuasion on the
person asserting the exception (at paras 30-31). In D~ v.
Canada (Minister of Financel, [1997] 2 S.C.R. 403, the court
articulated the governing principles of privacy law including that
protection of privacy is a filndamental value in modern
democracies and is enshrined in ss. 7 and 8 of the Charter, and
privacy rights are to be compromised only where there is a
compelling state interest for doing so (at paras. 65,66,71). And in
H.J. Heinz of Canada Ltd v. Canada (Attorney General), [2006] 1
S.C.R. 441 Deschamps stated: "'p]n a situation involving personal
information about an individual, the right to privacy is paramount
-20-
over the right of access to information, except as prescribed by the
legislation (at para 26).
[21] The Union notes that the matter ofCPIC checks for OPS employees is a
matter that has arisen between the parties, initially resulting in a grievance but
with a Policy and Operational Guidelines ultimately agreed to by the parties.
The Union notes the s:Pecific reference to "'duties associated with the work of
law enforcement" under the "Application and SCOPe" heading in the Policy. It is
noted that the OPS Policy provides for a process for employees in certain
positions to consent to CPIC checks and a process to ensure the confidentiality
of that information.
[22] There was no dispute that the CPIC information sought and obtained
here constitutes personal information. However, as previously noted, the
Employers position is that its actions in this regard are not in any way atfected
by the Policy and are authorized by virtue of the fact that they relate to law
enforcement. Reference was made to s. 38(2) of the Freedom of Information and
Personal Privacy Act (FIPPA) which provides as follows:
No person shall collect personal information on behalf of an
institution unless the collection is expressly authorized by
statute, used for purposes of law enforcement or necessary
to the proper administration of a lawfully authorized activity.
In this regard, Mr. Loewen referred me to a report of the Privacy Commissioner,
Excessive BackPmund Checks Conducted on ProsDect:ive Jurors: A Svecial
Inves~tion Report. Order PO-2626 dated October 5,2009. In this report, the
-21-
Privacy Commissioner deals with the collection, use and disclosure of personal
information relating to prospective jurors. The report considers s. 38 (2) and
also made reference to s. 42 (1) ofFIPPA. which provides for disclosure from
one law enforcement agency to another. The investigation arose from concerns
that Crown attomeys were obtaining personal information from police,
including CPIC information, about prospective jurors that went beyond what
was necessary to determine whether they were eligible for juIy duty. Referring
to the fact that the Juries Act and the Criminal Code contained juror eligibility
criteria which refer to a conviction for an indictable offence, the Privacy
Commissioner determined that because there is the right to challenge a
prospective juror for cause based on criminal conviction, it was appropriate
that the Crown have access to police records. It is concluded at p. 120 of the
decision that -A criminal conviction record check is the only reasonably
practical and reliable means by which a Crown attomey may obtain
information necessaJY to exercise the right to use this challenge" and further
that
When Crown attomeys collect personal information from
the police about prospective jurors that is relevant to the
statutory criminal conviction eligibility criteria, they are
collecting this information to be -Used for the purposes of
law enforcement" under section 38(2). This is consistent
with my statement above that in my discussion of section
42 (I)(f)(ii) that the juIy selection process is a specific law
enforcement matter.
The decision went on at p. 121 to note, in summary, that the collection of
personal information beyond that relevant to the conviction criteria is not
-22-
:PerIDissibIe but that the collection of information relevant to criminal
conviction criteria is because it is "'necessmy for the proper administration of a
lawfully authorized activity'" as well as used for the purposes of law
enforcement. Mr. Loewen made reference to s. 22 of the Ontario Evidence Act.
which provides for the proof of a previous conviction by a record of the charge
and conviction and submitted that this provision contemplates access to such
information, access which in his submission must properly be provided by the
Crown, noting that otherwise defence counsel would not be aware of this
information. In Mr. Loewen's submission, the Ministry of Labours approach
falls within the sCOPe of the analysis contained in this decision and, on this
basis, ought properly be endorsed.
[23] In the jUIY selection case, the checks were made in the context of specific
statutory provisions relating to criteria for jUIY selection. Law enforcement is
defined in section 2 (1) of FIPPA as including "'investigations or inspections that
lead or could lead to proceedings in a court or tribunal if a penalty or sanction
could be imposed in those proceedings", a definition which would encompass
the proceedings in issue here. However, I agree with Ms. Hughes that the
general approach taken in that decision is one that is protective of privacy
rights. It does not contemplate a generalized or broad exception for law
enforcement. Rather, it endeavours to balance privacy rights with the interests
of law enforcement, ensuring that the statutory exception for law enforcement
does not erode privacy interests in an unnecessmy or inappropriate manner.
-23-
The Union argues that the otonnor process allows for the Court to ensure this
balance. As noted below, the otonnor process specifically contemplates
dealing with issues of credibility, which is where s. 22 of the Evidence Act
comes into play. It is the Employer's position, however, that the otonnor
process does not allow it to meet its obligations under McNeil
[24] In McNeil. information about police officer Hackett's criminal activities
was in the possession of the Barrie Police and the provincial Crown prosecuting
Hackett. The concern was the disclosure of that obviously relevant information
to the defence. The obligation of the Barrie Police to disclose relevant
information about Hackett is made clear by the Supreme Court of Canada.
Had the appropriate disclosure to the Crown been made, the Crown would then
have been in a position to be able to disclose that information to the defence.
[25] Does McNeil compel the Crown in these prosecutions to obtain and
disclose CPIC information about Inspectors in the manner in which it has? As
previously noted, in paragraph 48 of McNeil. the notion that the Crown has a
general obligation to search out information from all govemIDent departments
or agencies is rejected. While, as the Employer emphasized, there is reference
in McNeil to the fact that the Crown is not an ordinary litigant and that its
ultimate obligation is to the administration of justice, the decision specifically
refers to the obligation of the Crown to make reasonable inquiries, not every
possible inquiry. In relation to disclosure requests, the decision refers in
-24-
paragraph 49 to Arsenault, where the duty to make inquiries of other agencies
or departments is said to arise where the prosecutor is aware that there has
been another Crown agency involved in the investigation. I am not persuaded
that the broad approach taken by the Crown here in obtaining CPIC
information from the Toronto Police Services falls within the ambit of that
directive. It is clear that there is an obligation to investigate where the Crown
is aware of potentially relevant evidence. The case that Justice Charron utilizes
to illustrate the point, AhIu~ is one in which the Crown was faced with
evidence of peIjmy, where the need to seek further information or "'to get to the
bottom of the matter"', as the Court put it, was blatantly apparent. The cases
that I was referred to by the Employer which are critical of the Crown arise in
analogous circumstances, where there was information before the Crown that
reasonably compelled it to investigate further.
[26] The disclosure obligation under Stinchcombe, which I have noted, has
been said in Vanbots to apply to prosecutions under the Occuvational Health
and Safety Act and in Fineline to prosecutions under the Environmental
Protection ~ is characterized in McNeil as :requiring the Crown to provide the
defence with the -rn.nts of the investigation"'. In Stinchcombe, there is a
reference to the Marshall Commission report wherein, in connection with
criminal proceedings, there is reference to complete disclosure properly
including a copy of the criminal record of any proposed witness. That is, of
course, in relation to a criminal proceeding where the police will have access to
-25-
such information and, as we know from McN~ act on the same :first party
footing as the Crown with respect to disclosure obligations. Moreover, the
decision notes specifically that the general endorsement of a broad duty of
disclosure is not one that can be applied without reference to the nature of the
proceedings. At p. 19, Justice SoPinka stated:
The general prinicip1es referred to herein arise in the context
of indictable offences. While it may be argued that the duty
of disclosure extends to all offences, many of the factors
which I have canvassed may not apply at all or may apply
with less impact in snmmary conviction offences. Moreover,
the content of the right to make full answer and defence
entrenched in s. 7 of the Charter may be of a more limited
nature. A decision as to the extent to which the general
Principles of disclosure extend to summary conviction
offences should be left to a case in which the issue arises in
such proceedings. In view of the number and variety of
statutes which create such offences, consideration would
have to be given as to where to draw the line.
In Vanbots. the Court endorsed the eeneral [emphasis added] Principles of
disclosure as set out in Stinchcombe. That was not a case that involved
privacy matters, nor was Fineline. Fineline involved the case of an investigator
who did not turn over his full investigation file to the Crown, providing the
Crown with only the documents that he felt were relevant. The Court found
two significant failures of disclosure, one being the considerable volume of
materials that the investigator did not turn over to the Crown and the second
being the Crown's failure to turn over certain notes, once the Crown became
aware of their existence.
-26-
[27] Two recent cases, R. v. Ahmed, [2010] ONCJ 130 (Canley) and R. v.
BatenchYk, [2010] ONCJ 192 (CanLII), both involve the prosecution of impaired
charges and defence counsel seeking historical information relating to
breathalyser machinery. As noted in paragraph 7 of Ahmed:
The Crown strenuously opposes this application. It takes the
position that, in accordance with the Supreme Court of Canada's
direction in R. v. McNeil [citation omitted] it does not .possess'" the
impugned items and, having regard to its assessment of the
evidence supporting the Crown's themy, together with the absence
of any information from the defence which might point to the
relevance of the additional items sought, it is not obligated to make
further inquiries in relation to the outstanding nine items. Thus, it
contends that the impugned items are properly the subject of what
is often referred to as an Otonnor third party record application.
Within that context, the defence must initially show that the
impugned items are '"'likely relevant" to one or more material issues
in the case.
Noting the absence of details as to the basis of defence counsel's assertions of
relevance, the Court concluded that there was no obligation on the part of the
Crown to make further inquiries and dealt with the matter on the basis of the
Otonnor test of likely relevance. A similar approach was taken in Batench!!k,
with the Court in paragraph 46 referring to Ahmed and stating that: .... what is
referred to as "'the fruits of the investigation" should include only such items in
the possession and control of the Crown".
[28] The Union referred me to R.v. Collins, [2010] ABPC 19, a decision of the
Alberta Provincial Court, wherein the scope of the prosecution's duty in the
context of a regulatory offence was addressed. The defence invoked McNeil in a
-27-
quest for production of :findings of serious misconduct as well as
criminal/provincial records of convictions or findings of guilt in relation to a
sheriff who had issued a ticket in relation to the Traffic Safety Act. With respect to
the matter of records of convictions, the Court states as follows at paragraph 89:
The Sheriff's Branch has indicated that it does not have access to
either of CPIC or JOIN and, accordingly, cannot provide the
information relating to the Criminal Code or Controlled ~ and
Substances Act (CDSA) convictions or :findings of guilt. Moreover,
there is no evidence of a record system designed to record all
convictions or :findings of guilt for all provincial regulatory offences
(including municipal bylaw cases) or that the Solicitor General has
access to such a system. Where a particular agency maintains
records of convictions or findings of guilt for offences within its
jurisdiction (or conscripts or is permitted to conscript similar
record-keeping systems such as CPIC or JOIN), any such records
relating to a McNeil :request ought to be disclosed to an accused
charged with an offence investigated in that context. As with
records of serious misconduct, production will be :required only
upon a :request pertaining to a specific officer escorted by reasons
for the request. When a particular regulatory agency has no such
records or ready access to that information it is relieved of any
further disclosure obligation in that regard. The Solicitor General,
accordingly, has no obligation to "'disclose" any record of
convictions or :findings of guilt relating to Sheriff Klatt kept on
CPIC, JOIN or the record-keeping systems of other govemIDent
agencies to which it has no access.
The Court did, however, conclude that findings of serious misconduct
ought to be disclosed, stating at paragraph 85:
Given that the Solicitor General has (and is mandated by law to
keep) formalized records in this regard, it is my view that imposing
a first-party disclosure obligation for findings of serious
misconduct by sheriffs is appropriate. Recognizing the need to
"'draw the line' on disclosure obligations in the context of simple
and routine regulatory offences, however, it is my view that
providing those records is not triggered by a simple or (as will be
-28-
discussed below) an uncalibrated demand for disclosure. In order
to trigger the prosecution's duty of disclosure in this context, the
accused must expressly :request the records of a specific sheriff (ie.
the sheriffs in question must be named) and give reasons why they
are:required. Crown counsel can thereafter perform the
Cgatekeeping' function addressed by the court in McNeil in order to
determine which :findings meet the test of true relevance.
[29] With respect to the matter of CPIC records, Ms. Hughes emphasized the
fact that the Court concluded that there was no obligation on the part of the
Solicitor General to seek out that information. Mr. Dhir, on the other hand,
argued that the Crown here was in fact able to obtain access to the information
and, accordingly, the circumstances fell within the permissive ambit of the
Coures conclusion. While he is clearly correct that the information was
obtained, I am not persuaded that it was obtained by virtue of "':ready access"',
as contemplated in that decision. It was in the possession of an outside
organization. The real question, it seems to me, taking guidance from the
decision of the Privacy Commissioner, is whether its seeking and conveyance
for purposes of law enforcement in the manner that that the Ministry of Labour
has undertaken here was appropriate, given the privacy interests at stake, and
the existence of a process to have those interests addressed by the Court.
[30] Unlike the proceedings that the Court in McNeil was referring to, there is,
in this matter, no police investigatory body obliged to act on the same :first
party footing as the Crown with respect to disclosure. The CPIC information
sought and obtained here was, as previously noted, third party information
-29-
held by an outside organization. The Crown's Stinchcombe obligations here
apply to the fruits of the investigation, with a duty to investigate that extends
only to making reasonable inquiries in the case of disclosure requests and
when the evidence in its possession reasonably compels such a response. I am
not persuaded that McNeil:required the Crown here to develop what was
described as a -workaround'" to fulfill a disclosure obligation. Employer
counsel is certainly correct in the observation that in paragraph 59 of McNeil.
excerpted supra, the Court referred to leaving the entire process of access to
police records being determined in the context of the O'Connor :regime as being
neither sufficient nor justified. However, that comment was made in the
context of the legal structure, in its entirety, under which the police OPerate.
While, as Mr. Dhir noted, Inspectors have significant statutmy powers, these
powers do not equate them to a police force, nor is the entire :regime of police
proceedings imported into the proceedings in which they are involved. Here,
there is a process in which third party information may be obtained by
application to the Court, in a process in which privacy rights can be taken into
account. Indeed, that approach is :reIlected in the Dare Foods case that I have
referred to.
[31] The Employer emphasi7A:d the efficient administration of justice and
suggested that the approach that it has taken ensures that important goal.
While efficiency is, of course, an important matter, it cannot trump important
substantive or procedural interests. Moreover, I note the concern expressed in
-30-
McNeil about trials becoming a conglomeration of satellite hearings on
collateral matters and I would observe that a process that contemplates
tailored disclosure and discourages :fishing expeditions is one that is consistent
with the efficient administration of justice. I also note that there is nothing that
prevents the parties from concluding an agreement that addresses matters of
disclosure and consent. Of course, any and all matters relating to disclosure
are ultimately subject to the direction of the Court with jurisdiction to hear the
matter. There are obviously cases where a criminal record would be relevant. It
would seem likely that there would be cases where disclosure and consent
would be provided if :requested. I would observe that the establishment of a
process for submissions to the Crown and safeguards to protect confidentiality
would no doubt enhance the likelihood of provision of disclosure and consent.
It would be in the interest of no one to unnecessarily expend the Court's time
on such matters.
[32] I agree with Mr. Loewen that the Policy, while referring to employees
involved in law enforcement, relates to identification of positions requiring
security checks and cannot in any way usurp the jurisdiction of the Court in
judicial proceedings. It does, however, reflect, in a general way, recognition of
the importance of privacy rights and the importance of protection of personal
information. The case before me does not turn in any way on an analysis of
the precise nature of privacy rights of employees covered by this Collective
Agreement. Implicit in the Employer's position in relying on the Privacy
-31-
Commissioners decision is acceptance of the notion that at the very least the
Inspectors in this instance are entitled to the protections of members of the
public involved in judicial proceedings. Those protections include due :regard
for privacy interests and recognition of those interests, even when the
exception for law enforcement under FIPPA comes into play. There is, as
indicated, a process by which the CPIC information can be obtained, a process
in which privacy rights can be considered. Also, as indicated, disclosure and
consent can be requested of the Inspector. I would note that it is readily
apparent that the approach taken by the Crown in this instance was reflective
of the highest ethical Principles that govern its conduct, Principles that compel
full disclosure in order that the interests of justice may be served. However,
having had the benefit of full argument on this matter, I am not persuaded that
McNeil compelled the Crown to take the broad approach and the steps that it
did in obtaining CPIC information on a proactive basis.
[33] To turn to the :PreIDi.se of one of Mr. Loewen's submissions, while this
t
matter arose in the context of Inspectors as witnesses, they are witnesses by
virtue of their emploYment. Their managers are involved in the process. The
employment nexus is clear. It is in this context that their privacy interests
have come into play in connection with the obtaining and disclosure ofCPIC
information and it is in this context that I have concluded that their privacy
interests have not been taken into account in the manner that they ought to
have been. Accordingly, it is my conclusion that the Employer's broad
-32-
approach in obtaining CPIC checks does not accord with an appropriate
exercise of management rights under the Collective Agreement and I so declare.
On this basis, the grievance is allowed.
[34] Turning to the issue of disclosure of evidence of internal disciplinaJy
misconduct, I would note that, unlike the issue of CPIC checks, this issue did
not directly arise in connection with the individual matter that gave rise to the
policy grievance and that the focus of the parties in argument was primarily on
the CPIC checks. I would observe that this issue differs from the CPIC issue in
that obtaining disciplinary information does not involve going outside of the
Ministry of Labour. I would also note that there is an issue between the parties
as to whether employment related discipline, as opposed to the kind of charges
that police officers face, would fall within the ambit of McNeil. I would further
observe that considerations relating to my jurisdiction in connection with this
aspect of the matter may well be different. It would seem appropriate for the
parties to have an opportunity to consider this matter to determine if this is an
issue that they can resolve, and, if they are unable to resolve it, the appropriate
fomm for its resolution.
[35] I would also note, as I did in my interim relief decision, that the Crown
and Inspectors are involved in a partnership in connection with t:Xl.1~mely
important work. They are to be encouraged to use their best efforts to bring
this dispute to a :final resolution in order that their partnership can focus
-33 -
exclusively on that important work.. I retain jurisdiction to deal with the
implementation of this decision and all other aspects of this matter.
Dated at Toronto, this 28th day of March, 2011.
~
Susan L. Stewart, Chair