Vincent Quesnelle was charged with several offences including sexual assault on two different complainants, TR and LI; the assault on TR was alleged to have occurred on December 29, 2006 and the assault on LI was alleged to have occurred on March 5, 2007.
Prior to trial there was a radio documentary created about TR “and the prosecution of certain alleged assaults against her”. TR and one of the detectives who assisted in the present case were interviewed for the show. That detective indicated that she came across “four or five occurrences in relation to sexual assaults” related to TR.
The defence learned of this radio documentary and sought the occurrence reports related to TR. The trial judge held that those records were “records” within the meaning of section 278.1 and where not subject to disclosure under the Stinchcombe regime.
Quesnelle was convicted. He appealed: 2013 ONCA 180.
The legal saga of Basi, Virk and Basi continues; in the most recent installment 2011 BCSC 314, 2011 CarswellBC 564,  BCJ No 420, the Crown brought an application for the return of all disclosure as well as application materials filed by the accused in relation to a previous Stinchcombe application. In short, the Crown argued that all disclosure is provided with an implied undertaking that the material will only be used in the context of the charges from which it was provided and once those charges are completed the disclosure should be returned.
Aneal Basi was opposed to the application arguing that there is no implied undertaking [para 7]. Dave Basi and Virk accept the implied undertaking but resist the return of the materials [para 8].
In a thorough decision, AW MacKenzie ACJSC first tackled the issue of whether there was an implied undertaking [paras 11-46]. With respect to that issue, MacKenzie ACJSC first recognized that "an accused who receives disclosure material pursuant to the Crown's Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding" [para 42]. On the basis of this undertaking MacKenzie ACJSC agreed with the Crown that since the proceedings are over the accused are not permitted to make any further use of the materials [para 45].
...it is, in my opinion, immaterial that some of the Application Materials, or information contained in them, is accessible to the public from other sources. Indeed, Griffin J.'s comments apply more forcefully in the criminal context given the restrictions on the public examination of criminal files. The public availability of documents produced pursuant to Stinchcombe obligations does not of itself displace the limited purpose for which the documents were produced to the defendants [para 63].
Finally MacKenzie ACJSC considered the return of the disclosed materials [para 64-77]. In doing so she considered the issues at which the implied undertaking is aimed: minimization of the intrusion on privacy generated by compelled production and to prohibit improperly motivated proceedings to gain access to materials [para 72] . Citing the large volume of material and number of third party interests implicated in the matter, Her Honour held that it was within the jurisdiction of the court and consistent with the implied undertaking to order the return of the materials.