Increased "Sexually Aberrant Behavior" Brain Injury Claim Leads to Police File Disclosure

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing document relevancy issues in a disputed brain injury claim.
In today’s case (Mackinnon v. Rabeco Holdings (1989) Ltd.) the Plaintiff was involved in a 2010 vehicle collision.  He sued for damages alleging that “he sustained a brain injury…as a result of the accident which caused or contributed to an increase in the frequency and severity of his pre-accident sexually aberrant behaviour culminating ultimately in a criminal conviction“.
Prior to the collision “the plaintiff took clandestine photos of a woman. The incident was reported to police in Langley who investigated, but no charges were laid.”.  In a post collision incident, the Plaintiff plead guilty to “surreptitiously unlawfully observing or recording for a sexual purpose a person in circumstances that give rise to an expectation of privacy contrary to s.162(1)(c) of the Criminal Code”.
The Defendant sought production of police materials from these incidents arguing the documents were relevant given the allegations in the lawsuit.  Master Harper agreed and ordered production.  In doing so the Court provided the following reasons:
[17]         The plaintiff will attempt to prove at trial that the injuries sustained in the motor vehicle accident caused or contributed to the escalation of his sexual proclivities. That fact, if found by the trier of fact, is material. The defendants seek to obtain evidence as to the timeline of the escalation in the Plaintiff’s sexually aberrant behaviour and compare his behaviour pre- and post-accident…

[22]         Because the defendants are not seeking production of the videos and photographs themselves (sensibly, in my view because I would not have ordered their production), secondary documents which refer to the nature of the images and the dates on which they were made are a reasonable substitute for those original documents. I find that certain specific documents in the possession of the RCMP with respect to the 2009 incident should be produced. These are: the incident report; any statements made by the plaintiff to the RCMP and the investigating police officer’s notes, with identifying information of the victims to be redacted.

[23]         I find that certain specific documents in the possession of the RCMP with respect to the June 25, 2012 incident should be produced. These are: the Narrative Report to Crown Counsel; the notes of the investigating police officer or officers and any statements made by the plaintiff to the RCMP.

[24]         The video catalogue was referred to by Crown Counsel as being made by someone other than Crown Counsel. There is no evidence as to who that someone is. It is possible that the video catalogue was not made by the RCMP and is not in the possession of the RCMP. There is no evidence before me in this application that the video catalogue is in the possession of the RCMP and no evidence from which I can draw an inference that the video catalogue is probably in the possession of the RCMP. Therefore, I dismiss that part of the application.

[25]         As stated above, counsel for the Defendants is not seeking disclosure of the videos and photos themselves. Any identifying information of the victims will be redacted.

bc injury law, document production, MacKinnon v. Rabeco Holdings (1989) Ltd., Master Harper, Rule 7, Rule 7-1, Rule 7-1(18)

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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