R v Lam, 2016 ABQB 201

Court of Queen ’ s Bench of Alberta Citation: R v Lam, 2016 ABQB 201 Date: 20160407 Docket: 130178791Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent/Crown - and - Stephen Lam Applicant/Accused - and – Alaina Louise Glasser Accused _______________________________________________________ Reasons for Decision of the Honourable Madam Justice Dawn Pentelechuk _______________________________________________________

Introduction [ 1 ] The Applicant, Stephen Lam, is charged with a number of offences including possession of cocaine, methamphetamine and marijuana for the purpose of trafficking, contrary to s 5(2) of the Controlled Drugs and Substances Act, SC 1996, c-19 (CDSA). The trial is scheduled for seven days commencing on June 20, 2016. [ 2 ] The Applicant seeks production of the disciplinary files of Cst. Yaremchuk and Cst. Toma. He also seeks the records pertaining to a criminal investigation into Det. Lewis’ conduct.

The records sought are in the possession of various agencies who, along with the Crown on the Applicant’s file, assert that the records do not form part of Stinchcombe first party disclosure, but rather should be addressed through an O’Connor application. Background [ 3 ] On February 13, 2013, the Applicant was charged with trafficking offences alleged to have occurred on or around February 12, 2013 . Cst. Toma had been the affiant in support of a tracking device warrant for the Applicant’s car, a general warrant and a search warrant. Cst. Yaremchuk had been involved in the Applicant’s arrest. Det.

Lewis was the Exhibit person for the seizures made pursuant to the warrants. The Applicant’s trial was originally scheduled to commence in late June 2015. [ 4 ] On April 13, 2013, Alberta Serious Incident Response Team (“ASIRT”) was directed under s 46.1 of the Police Act , RSA 2000, c P-17 to investigate Det. Greg Lewis, a member of the Edmonton Police Service (“EPS”), on allegations of trafficking in steroids. [ 5 ] ASIRT completed its investigation of Det. Lewis in October 2014. [ 6 ] On March 6, 2015, Det. Lewis was charged with three counts of trafficking in steroids.

Count one refers to offence dates between January 2007 and December 2013, during which time period the Applicant was investigated, arrested and charged. [ 7 ] Cst. Toma provided a statement to ASIRT on May 15, 2014 in the course of the investigation into Det. Lewis. In July 2014, Cst. Toma contacted ASIRT indicating he wished to clarify information he had provided. He gave a second statement on July 21, 2014. He also provided a statement to the EPS on March 17, 2015. [ 8 ] On May 20, 2014, Cst. Yaremchuk provided ASIRT with a statement in the course of the ASIRT investigation into Det. Lewis.

He provided a second statement to the EPS on March 19, 2015 where he admitted his earlier statement to ASIRT was false. [ 9 ] Between March and May of 2015, both Cst. Toma and Cst. Yaremchuk pleaded guilty to one count of deceit and one count of discreditable conduct under the Police Service Regulation, Alta Reg 356/1990 . The misconduct was related to the investigation of Det. Lewis and the charges against him. [ 10 ] On June 2, 2015, following a media report on Det. Lewis, counsel for Mr.

Lam requested updated McNeil Reports and other disclosure. [ 11 ] On June 4, 2015, the Crown provided counsel with McNeil Reports on Cst. Toma and Det. Lewis. [ 12 ] The package on Det. Lewis, dated March 10, 2015, consists of one page which states: Outstanding charges under the Canadian Criminal Code and the Controlled Drugs and Substances Act : Charge: Sec 5(1)(1) x 3, Controlled Drugs and Substances Act Offence Date: On or between 2007 January 01 to 2013 December 31 Court Date: 2015 April 10. [ 13 ] The McNeil Report on Cst.

Toma, dated May 27, 2015, contains the following information: Findings of guilt for misconduct pursuant to the Police Act , not including contraventions of the Police Service Regulation that has been removed from the Officer’s record of discipline pursuant to

Section 22 of the Police Service Regulation or matters disposed of pursuant to Section 45(4) of the Police Act : Charge: P.S.R. Sec 5(1)(

e) Discreditable Conduct x 1; P.S.R. Sec 5(1)(d), Deceit x 1 Disciplinary Hearing Conviction date: 2015 March 27 Finding: Proven Disposition: Two year demotion in rank to Senior Constable. [ 14 ] Mr. Lam was provided a copy of the written decision dated April 8, 2015 relating to the complaint and disciplinary proceeding against Cst. Toma. [ 15 ] On July 9, 2015, an updated McNeil Report was provided in relation to Cst. Yaremchuk. It contained the following

information: Findings of guilt for misconduct pursuant to the Police Act, not including contraventions of the Police Service Regulation that have beenremoved from the officer’s record of discipline pursuant to

section 22 of the Police Service Regulation or matters disposed of pursuant toSection 45(4) of the Police Act: Charge: P.S.R Sec 5(1)(e), Discreditable Conduct x 1; P.S.R Sec 5(1)(d), Deceit x 1 Disciplinary Hearing Conviction date: 2015 May 08 Finding: Proven Disposition: Two year demotion beginning at the 4th year Constable for the first year, thereafter the officer shall be placed to a 5th yearConstable.

Providing satisfactory performance appraisals during this two year period the officer will be reinstated back to his previousrank. [16] A copy of the decision dated May 26, 2015, relating to the complaint and disciplinary proceedings against Cst. Yaremchukwas also provided to Mr. Lam. Application [17] In his Application filed on October 22, 2015, the Applicant seeks disclosure of the entire police investigation file of Cst. Tomaand Cst. Lewis and the criminal investigation file of Det. Lewis. A further Application filed by Mr. Lam on January 27, 2016, seeks thefollowing: 1.

An Order directing the disclosure of the entire disciplinary file of Cst. A. Toma related to the finding inter alia of deceit, includingthe complaint received, the steps taken thereafter by the investigators (EPS or ASIRT) respecting the complaint, all witness statementstaken during the course of the investigation of the complaint, all reports authored during the course of the investigation of the complaint,the transcript and video recordings of any conducted interviews and the transcript of the proceedings. 2. An Order directing the disclosure of the entire disciplinary file of Cst. K.

Yaremchuk relating to the finding of inter alia of deceit,including the complaint received, the steps taken thereafter by the investigators (EPS or ASIRT) respecting the complaint, all witnessstatements taken during the course of the investigation of the complaint, all reports authored during the course of the investigation of thecomplaint, the transcript and video recordings of any conducted interviews and the transcript of the proceedings. 3. An Order directing the disclosure of the entire disciplinary/criminal investigation into the conduct of Cst. G.

Lewis relating to theoffences charged under the CDSA including the complaint received, the steps taken, the transcript and video recordings of anyconducted interviews and the transcript of the proceeding. 4. A chronology respecting all steps taken by the EPS/ASIRT beginning with the date the complaint was received and all steps takenfrom the date that the complaints were received up to and including the commencement of either disciplinary proceedings and/or theswearing of an Information including without limiting the generality of the foregoing the date(

s) that the Minister of Justice or theCrown may have been advised as to the investigation and findings and all information provided to the Crown and the date thereof duringthe course of the investigation into the conduct of Cst. A. Toma, Cst. G. Lewis and Cst. K. Yaremchuk. Law First Party Disclosure [18] The Crown has a positive and continuing obligation to disclose all records in its possession that constitute the fruits of theinvestigation, save for those records that are clearly irrelevant or legally privileged: R v Stinchcombe, (SCC), [1991] 3SCR 326, [1991] SCJ No 83.

This includes documents that may assist the accused in making full answer and defence, even if the Crowndoes not propose to adduce those documents at trial. [19] Relevance is broadly defined and the threshold for relevance is very low.

Materials which may have only marginal value tothe ultimate issues at trial should still be disclosed unless they are clearly irrelevant: R v Dulude (2004), 189 CCC (3) 18, (ON CA), [2004] OJ No 3576 at para 18 (CA); R v Candir, 2009 ONCA 915 at para 168, 257 OAC 119; R v Blea, 2012 ABCA41 paras 36-38, 287 CCC (3d) 444. [20] Confusion arose as to whether records pertaining to police officers’ misconduct were included in the Crown’s Stinchcombe orfirst party disclosure. The Supreme Court had an opportunity to address this in R v McNeil, 2009 SCC 3, [2009] 1 SCR 66.

In that case,the accused was convicted on multiple drug charges including trafficking in cocaine. The arresting officer, the Crown’s main witness,was subject to discipline proceedings involving allegations of dishonesty linked to his own use of cocaine around the time of McNeil’sarrest. There were also allegations that he and another officer had conspired to make a false report regarding the theft of the otherofficer’s truck. The two officers pleaded guilty to the theft-related charges.

The disciplinary records and the criminal investigationrecords were intermingled and were in the possession of both the provincial Crown who was prosecuting the officer, and the policeservice. The Court of Appeal found that some of the requested records met the O’Connor threshold, but the second part of the test wasunnecessary as the records did not attract a reasonable expectation of privacy. It ordered production to the prosecuting Crown of the

criminal investigation files in the other parties’ possession relating to the charges against the arresting officer. The Supreme Courtallowed the appeal and set aside the order in the Court below, but did not make a further Order as the application had become moot. [21] The Supreme Court took the opportunity, however, to comment on the principles governing the Crown’s first party disclosureobligation.

Charron J for the Court held that first party disclosure includes records relating to findings of serious misconduct by policeofficers involved in the investigation against the accused, where the police misconduct is either related to the investigation, or the findingof misconduct could reasonably impact on the case against the accused. While the investigating police force is distinct and independentfrom the Crown at law, it is not a third party for the purpose of first party disclosure.

There is a reciprocal duty on the part of the policeto provide the Crown, and for the Crown to inquire about and obtain from the police, all material information pertaining to theinvestigation of the accused. Thus, certain basic information regarding relevant officer misconduct should be provided by the police tothe Crown without prompting so as to bridge the gap between first party disclosure and third party production: McNeil at paras 54, 59.

Ifthat basic information is not provided, the defence will often have difficulty meeting the O’Connor threshold to access the records orwill be oblivious to their existence. [22] The accused's interest in obtaining first party disclosure generally outweighs any residual privacy interest held by third partiesin the material.

Therefore, the onus is on the Crown to justify the non-disclosure of any material in its possession due to an expectation ofprivacy: McNeil, para 20. [23] Charron J noted at para 22 that other Crown entities or agencies are considered third parties in relation to the prosecutingCrown’s Stinchcombe first party disclosure obligations.

If that were not so, every Crown prosecutor would be faced with the impossibletask of inquiring of every department of the provincial and federal governments some months before trial to determine whether theypossessed any records touching each upcoming prosecution: R v Gingras (1992), (AB CA), 120 AR 300, [1992] AJNo 107 (CA). [24] Charron J concluded her discussion of first party disclosure at para 25 by observing that production of criminal investigationfiles involving third parties, and of police disciplinary records, usually falls to be determined in the context of an O'Connor application,noting that information about third party accused or police misconduct is not likely to make its way into the Crown's Stinchcombedisclosure package unless such information is in some way related to the accused's case.

Third Party Records [25] Not every finding of misconduct by an officer involved in the investigation will be relevant to the accused’s case.

If theofficer played a peripheral role in the investigation, or if the misconduct has no realistic bearing on the credibility or reliability of theofficer’s evidence, the materials may not fall within first party disclosure obligations: McNeil at para 59. [26] As noted above, production of criminal investigation files involving third parties, and of police disciplinary records usuallyfalls to be determined in the context of an O'Connor application. [27] The Supreme Court in R v O’Connor, [1995] 4 SCR 411, outlined a procedure to govern disclosure of acomplainant’s therapeutic records in the context of a sexual assault case.

Access to these types of records is now specifically addressedin the Criminal Code and the regime developed in R v Mills, [1999] 3 SCR 668, SCC. However, production of all othertypes of third party records that are beyond the possession or control of the Crown continues to be governed by the process outlined inO’Connor. An O’Connor application allows the third party record holder and anyone that is a subject of the documents to makesubmissions to the Court.

The O’Connor procedure is not limited to cases where third party records attract a reasonable expectation ofprivacy: McNeil at para 11. [28] O’Connor contemplates a two-stage test: 1) the accused must satisfy the Court that the documents sought are likely relevant to the proceedings pending against him or her; 2) if so, the Court must review the documentation and weigh the salutary and deleterious effects of a production Order to determinewhether a refusal to order production would be a reasonable limit on the accused’s ability to make full answer and defence, byconsidering:

a) the extent to which the records are necessary for the accused to make full answer and defence;

b) the probative value of the records in question;

c) the nature and extent of the reasonable expectation of privacy and the record;

d) whether production would be premised upon any discriminatory belief or bias;

e) the potential prejudice to the complainant’s dignity, privacy, or security of the person that would be occasioned to production of therecord. [29] When records are to be produced pursuant to O’Connor, the Court must ensure that only relevant material is produced andthat no unwarranted invasion of privacy interests occurs. The Court may make the order subject to redactions or other conditions, andmay restrict dissemination for purposes unrelated to the accused's full answer and defence or prosecution of an appeal. However, thecrafting of a production order should not necessitate any detailed inquiry into the precise nature or extent of the privacy interest inquestion: McNeil a para 46.

Bridging the Gap between First Party Disclosure and Third Party Production [30] The Supreme Court in McNeil recognized that it is often difficult for the accused to meet the threshold required to accesspolice disciplinary records in an O’Connor application. In order to “bridge the gap between first party disclosure and third partyproduction”, the Court favoured a more efficient streamlining of O'Connor applications. [31] Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter.

Unless thenotice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of theCourt without inquiring further and obtaining the information if it is reasonably feasible to do so. As well, the Crown has a duty toinquire when it is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case.

Charron Jnoted that the Crown has an interest, not dissimilar to that of the defence, in the credibility of its own witnesses: McNeil at para 50. [32] The police have a corollary duty to disclose relevant information. Charron J in McNeil referred favourably to the reportprepared by the Honourable George Ferguson, Q.C. in 2003 for the Chief of the Toronto Police Service entitled Review andRecommendations Concerning Various Aspects of Police Misconduct.

The terms of reference included the mandate to review the policeservice’s obligation to alert the Crown to alleged or proven acts of misconduct of a police officer who will be a witness or was otherwiseinvolved in an investigation that has led to a criminal proceeding.

The Ferguson Report recommended that certain categories ofinformation, known as “the Ferguson Five”, be automatically disclosed by police upon request by the Crown: 1) any conviction or finding of guilt under the Criminal Code or under the CDSA for which a pardon has not been granted; 2) any outstanding charges under the Criminal Code or the CDSA; 3) any conviction or finding of guilt under any other federal or provincial statute; 4) any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act; and 5) any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued. [33] Charron J in McNeil at para 59 reiterated the Ferguson Report recommendation that where information regarding policemisconduct is “obviously relevant” to the accused's case, it should automatically form part of the police service’s first party disclosurepackage to the Crown.

Courts in many of the decisions following McNeil have opined that “obviously relevant” may connote a higherthreshold than “likely relevant”, the threshold employed in the first part of an O'Connor application.

This may be a distinction without adifference. [34] In R v Jackson, 2015 ONCA 832 at para 121, 128 OR (3d) 161, Watt JA discussed the meaning of “relevance” in the contextof a disclosure application, noting that it is not a legal concept, but rather is relative, positing a relationship between an item of evidenceand the proposition of fact the proponent of the evidence seeks to prove (or disprove) by its introduction. [35] Relevance is contextual and must be assessed within the factual context of the entire case.

It demands a determination ofwhether, as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence of non-existence of another fact more probable than it would be otherwise: Jackson at para 122. [36] In his article, Stinchombe on Steroids: The Surprising Legacy of McNeil (2009), 62 CR (6th) 26, David M.

Pacioccocommented on this distinction, concluding: There is no principled reason why the standard for police disclosure to the Crown should be less onerous than the standard of Crowndisclosure to the accused, particularly given that the obligation of police disclosure is meant to service Crown disclosure. Understood incontext, the "obviously relevant" reference in McNeil should be interpreted to be a commentary by the Court on the evidence at issue inthe McNeil case itself, and not a statement of the standard for police disclosure to the Crown.

Information in police files about themisconduct of police officers that is not clearly irrelevant should be furnished to the Crown. [37] In Jackson, Watt JA considered the matter and concluded: [124] It is difficult to tease out of the phrase" obviously relevant" a new standard or degree of relevance. A better fit would seem to bethat the phrase represents a comment on the obvious nature of the relevance of the record in the case to the witness' credibility. [38] I agree that no significance should be placed on Charron J’s use of the phrase “obviously relevant”.

Additional Case Law [39] Although I was provided with extensive authorities, the vast majority are of limited assistance. The cases which predateMcNeil must be read with caution. Of the cases decided since McNeil, most involve failed requests for disclosure that went well beyond,or differed substantially, from the Ferguson Five.

They include, for example, requests for: - records of any officer complaints dismissed after hearing or without hearing relating to allegations of dishonesty, excessive forceor abuse of authority: R v C(JD), 2009 ABPC 181, 484 AR 1; - any complaint made against officers under the Police Act or Criminal Code or any civil claims engaging their conduct relating toallegations of excessive force, abuse of authority or dishonesty: R v Letourneau, 2009 ABPC 222, 471 AR 198; R v Polny (AB KB), [2009] AJ 1511, 488 AR 253; - complaints, including those still being investigated and any complaints dismissed, engaging the issues of dishonesty, excessive

force or abuse of authority and all civil suits: R v Steele , 2010 ABQB 39 , 488 AR 296; - all official warnings issued by a Chief of Police and any finding of guilt of misconduct under the Police Act removed from a police officer’s record: R v Perreault , 2010 ABQB 714 , 497 AR 168; - production of any and all disciplinary files concerning any of the police witnesses: R v Auger , 2010 ABPC 196 , 31 Alta LR (5th) 300; - calibration logs for an approved screening device (ASD): R v Black , 2011 ABCA 49 , [2011] AJ No 123; R v Jackson , 2015 ONCA 832 , 128 OR (3d) 161. [ 40 ] R v Côté , 2009 ONCJ 221 , [2009] OJ No 2040 is more instructive.

There, the accused made a complaint about the conduct of the officers involved in his arrest for assaulting a police officer. The complaint was investigated and determined to be unfounded. Nonetheless, the Court held that copies of witness statements taken by the police in relation to his complaint should be disclosed.

The misconduct in question fell squarely within the first party disclosure contemplated in McNeil . [ 41 ] In R v Lee , 2007 ABQB 454 , 426 AR 315, the Court considered whether information relating to an investigating officer’s credibility, character and ability to perform his duties during that officer’s investigation of the accused was subject to Stinchombe first party disclosure or should be the subject of an O’Connor application.

In her prescient decision, Sulyma J determined that the material was sufficiently related to the investigation and likely relevant to an issue at trial because the records related to the officer’s credibility and his ability to perform his duties during his involvement in the investigation. Thus, the records were disclosable as first party disclosure under Stinchcombe . [ 42 ] Finally, in R v Kane , 2010 NLTD 52 , 295 Nfld & PEIR 302, Leblanc J considered, among other issues, whether the entire police disciplinary file ought to be produced to the accused or whether the

summary of misconduct was sufficient. The documents were provided to Leblanc J for his review. He determined that a

summary of the full court record of Officer 3 should be disclosed. Where disciplinary material was provided to the Crown by the police, sufficient information was to be provided to the Crown so that it could appropriately perform the gatekeeper function. The Crown, having had notice of misconduct that might be relevant in the circumstances, had an obligation to seek full disclosure from the police to ensure that the gatekeeper role was properly performed. Leblanc J decided, based upon the summaries provided to the Crown, that the Crown had an obligation to demand full disclosure of Officer 3’s disciplinary file.

For the other officers, it was reasonable for the Crown prosecutor to have concluded, based upon the information in his hands, that it was clearly irrelevant to the accused's ability to make full answer and defence. Disclosure of the materials related to disciplinary proceedings taken against Officer 3 concerning his criminal conviction were to be disclosed with necessary redactions and some possible limitations. Positions of the Parties [ 43 ] Relying on McNeil , the Applicant submits that the documents he seeks are part of first party disclosure.

He submits that the Public Prosecution Services in various cities are indivisible. Alternatively, he submits that he is entitled to the documents under the O’Connor regime. He argues that privacy concerns can be addressed in various ways both at the disclosure stage and at trial: witnesses can be identified by number, material may be redacted, conditions imposed on use, evidence can be presented during in camera hearings, and publication bans may be imposed. [ 44 ] The Court also heard submissions by the Crown in Mr. Lam’s trial - Public Prosecution Services of Canada-Edmonton (PPSC-Edmonton), the Crown in Det.

Lewis’ trial (PPSC-Vancouer), ASIRT and the Chief of Police - Edmonton Police Service, who was granted Intervenor status. Written submissions were also provided on behalf of Det. Lewis. They all take the position that the requested documents are third party records whose production should be determined through an O’Connor application. [ 45 ] PPSC-Edmonton acknowledges that all three officers are, or could be considered, non-peripheral witnesses due to their involvement in the investigation. Certainly, without the evidence of either Det. Lewis or Cst. Toma, the case against Mr. Lam collapses.

PPSC-Edmonton submits that it has complied with McNeil by providing the Ferguson Five information to the Applicant. PPSC- Edmonton provided copies of the decisions in relation to the misconduct of Cst. Yaremchuk and Cst. Toma. It also disclosed that Det. Lewis has outstanding charges under the CDSA . PPSC-Edmonton is not in possession of either the EPS disciplinary files or ASIRT’s criminal investigation file regarding Det. Lewis.

It argues that the EPS, ASIRT and PPSC-Vancouver, are all third parties in relation to PPSC-Edmonton for the purposes of those files. [ 46 ] ASIRT and PPSC-Vancouver admit the relevance of the statements provided by Cst. Toma and Cst. Yaremchuk and the post- arrest statement provided by Det. Lewis, but have not provided these to Mr. Lam, because of objections raised by Det. Lewis. PPSC- Vancouver is prepared to disclose the transcripts of the interviews with Cst. Toma and Cst. Yaremchuk, subject to concerns of those individuals and Det.

Lewis. [ 47 ] PPSC-Vancouver takes the position that McNeil first party disclosure encompasses findings of serious misconduct, and no findings have been made against Det. Lewis at this time; outstanding charges are not first party disclosure but rather are subject to O’Connor . Aside from the interview statements in question, there is nothing relevant. Det. Lewis’ preliminary hearing is set for June 2016 and he has elected trial by jury. PPSC-Vancouver does not want the details of the witness statements to be in the public domain or on the public record as the matter is still before the courts.

One witness’ evidence may be tainted by knowledge of what another witness has said. There are concerns about the privacy of witnesses and possible intimidation. The third parties must be allowed to make submissions regarding privacy concerns. ASIRT echoed the submissions of PPSC-Vancouver. [ 48 ] EPS has the records sought in relation to Cst. Toma and Cst. Yaremchuk and some of the documents in relation to Det. Lewis.

It argues that if the requested records are caught by first party disclosure, this would greatly expand its disclosure obligations to the Crown to include the entire disciplinary record whenever there is a finding of serious misconduct against a police officer who is not

peripheral to the investigation of an accused. The Crown would then have to review the materials and disclose records that are not “clearly irrelevant”. [ 49 ] Cst. Yaremchuk takes no position. Cst. Toma advised he is concerned the proposed disclosure impacts his privacy interests. [ 50 ] Det. Lewis applied for and was granted the opportunity to provide a short written submission. He strongly objects to further disclosure of the investigative file as first party disclosure, and submits that O’Connor governs its production so that there can be a forum for judicial weighing of Mr.

Lam’s right to a fair trial with his own. He argues that the investigative file includes a vast amount of private information that would interfere deeply with his right to privacy. He says that the investigative file while in the hands of the police or prosecution, is subject to privacy legislation and oversight of the Charter , and that no similar protections exist when the evidence is in the hands of the defence. He argues that production would likely impact his own right to a fair trial.

While acknowledging that his testimony is subject to the qualified immunity guaranteed under the Charter , he states this would be “information at large” that could be used for strategic purposes by any prosecuting authorities holding an interest in the case against Det. Lewis, or it could be disseminated in the media. Further, he argues that public disclosure could taint potential jurors. [ 51 ] The records in relation to Cst. Toma and Cst. Yaremchuk are held by the EPS. ASIRT did not investigate either of these officers. The EPS provided an inventory of records for Cst. Toma and Cst.

Yaremchuk. [ 52 ] The EPS has some records in relation to Det. Lewis. Det. Lewis objected to an inventory of those records being provided. [ 53 ] ASIRT provided a “File Inventory by Category” in relation to Det. Lewis. I was advised that the criminal investigation file for Det. Lewis amounts to “tens of thousands” of pages. [ 54 ] The ASIRT file inventory includes ASIRT’s final report, the statements of Cst. Yaremchuk and Cst. Toma and the post arrest statement provided by Det. Lewis.

In addition, there are over 100 statements (some transcribed and some not) from 65 civilian and police witnesses. [ 55 ] PPSC-Vancouver advised that it is in possession, as the Crown prosecuting Det. Lewis, of the transcripts of the officers’ interviews with ASIRT and the EPS. Analysis [ 56 ] The focus of the Court in this disclosure application is on the Applicant’s trial. The records in question do not relate to proceedings against the three officers for alleged police misconduct specifically in the Lam investigation.

However, it is acknowledged, and I find, that at least some of the records in question do constitute first party disclosure in that findings of misconduct and criminal charges against the three officers could reasonably impact on the case against the Applicant. [ 57 ] The McNeil decision leaves a number of unanswered questions in relation to the scope of this type of first party disclosure, as was demonstrated by the lengthy submissions on this point before the Court. Considerable time was spent, for example, on whether the various agencies are divisible or indivisible vis-à-vis PPSC-Edmonton.

I will not address this issue other than to point out that all of the agencies concerned were represented by counsel at the hearing and had ample opportunity to present their submissions. The issue at this stage is really the extent of PPSC-Edmonton’s obligations. There was no suggestion that the Court does not have jurisdiction to order PPSC-Edmonton to make further inquiries or to obtain relevant records in order to fulfill its disclosure mandate. a. Constable Toma and Constable Yaremchuk [ 58 ] The Applicant was arrested on February 12, 2013 and charged on February 13, 2013. [ 59 ] Cst.

Toma admitted to purchasing steroids from Det. Lewis once in April or May of 2012 and once in early 2013. He used the pills, but discontinued use on both occasions due to an adverse effect on his Achilles tendon. Cst. Yaremchuk admitted to purchasing steroids from Det. Lewis and using them between July 2012 and the fall of 2012. Both officers were also found guilty of deceit for initially having denied using steroids in that time frame and having denied knowledge that Det. Lewis had been in possession of them or was distributing them. [ 60 ] Cst.

Toma was the affiant in relation to warrants sworn on January 17, 2013, February 11, 2013 and February 12, 2013. His deceit and discreditable conduct are temporally connected to the investigation of the Applicant and his arrest. The Applicant has expressed an intention to cross-examine him as affiant, in which case his reliability and credibility will be in issue at trial. [ 61 ] Cst. Yaremchuk was involved in the Applicant’s arrest. PPSC-Edmonton advises that Cst. Yaremchuk was not the team leader, nor the arresting officer at the scene.

He was situated on the passenger side of the Applicant’s vehicle and breached the window during the arrest. He provided verbal instructions to the Applicant, with which Mr. Lam complied. Cst. Yaremchuk’s deceit and discreditable conduct are temporally connected to the investigation and arrest. Cst.

Yaremchuk’s reliability and credibility as a witness will be in issue, and his steroid use is potentially relevant to the Applicant’s allegation that excessive force was used in his arrest, although it appears at this point that this may be somewhat tenuous based on the outline provided of his role in the arrest. [ 62 ] ASIRT and PPSC-Vancouver admit the likely relevance of the statements provided by Cst. Toma and Cst. Yaremchuk, but have not provided these to the Applicant because of objections raised by Det. Lewis.

EPS also has these records, but is concerned about them being characterized as first party disclosure. EPS and ASIRT have provided inventories. [ 63 ] There were no investigations against Cst. Toma and Cst. Yaremchuk. They admitted to misconduct and were disciplined. No witnesses were called at their disciplinary hearings. The disciplinary decisions have been disclosed. They contain detailed findings including a

summary of agreed facts. PPSC-Vancouver and ASIRT are prepared to disclose the transcripts of their interviews with

ASIRT and EPS which form the basis for their admissions, subject to privacy and fair trial concerns. PPSC-Vancouver is not aware ofany other documents of substance in relation to their deceit and discreditable conduct. [64] I am satisfied that the transcripts of the interviews of Cst. Toma and Cst. Yaremchuk with ASIRT and EPS are part of firstparty disclosure to the extent that they could reasonably impact on the case against the Applicant. [65] The Applicant argued that other documents in the “Inventory of Records - PSB Investigation” relating to Cst. Toma and Cst.Yaremchuk should be disclosed.

This is not a case where relevant complaints were made, or investigations undertaken and the matterswere ultimately dismissed. Nor are the charges outstanding. Cst. Toma and Yaremchuk were subject to disciplinary proceedings, madestatements, pleaded guilty to misconduct, and were subject to various findings. The focus of this Court in addressing disclosure is on theissues to be tried in relation to the Applicant. In my view, the documents leading up to the interview statements, some of which relate toDet.

Lewis, and the EPS Service Directive regarding Use of Anabolic-Androgenic Steroids dated April 13, 2016, are not first partydisclosure in relation to any misconduct by Cst. Toma or Cst. Yaremchuk which may have an impact on the Applicant’s trial. [66] The Applicant agreed that materials produced to PPSC-Edmonton would properly be assessed by PPSC-Edmonton forprivacy concerns. As noted, the Crown ultimately bears the onus to justify the non-disclosure of any first party disclosure material of thisnature based on an expectation of privacy. Various agencies and individuals have interests in the material.

However, the relevant gate-keeper Crown in this context is PPSC-Edmonton, who is responsible for the prosecution of the Applicant. Although Det. Lewis hasraised general concerns before this Court regarding his privacy in relation to all of the documents sought, he has not identified anyspecific concerns with respect to information disclosed in the transcripts of the EPS and ASIRT interviews Cst. Toma and Cst.Yaremchuk. It is open to him and Cst.

Toma to raise their concerns with PPSC-Edmonton prior to any disclosure to the Applicant. [67] The privacy issues that arise in the context of the disciplinary records may be limited given the advice from the EPS that thedisciplinary findings and the hearing itself are a matter of public record. In any case, the Court in McNeil recognized that reasonableexpectations of privacy do not disappear once documents are in possession of the Crown: [12] This principle holds equally in respect of criminal investigation files relating to third party accused that are not in the possessionor control of the prosecuting Crown.

There can be no assumption that criminal investigation files relating to third party accused personsdo not attract an expectation of privacy absent consideration of their particular contents and other relevant factors. The existence of areasonable expectation of privacy and its impact, if any, on a third party’s obligation to produce is always a contextual, fact-basedinquiry.

Likewise, no blanket ruling can be made in respect of privacy interests in police disciplinary records without regard to theircontents. [68] Once materials are provided to PPSC-Edmonton, it will be in a position to make preliminary determinations regarding privacyconcerns, and whether it has a duty to review additional material sought by the Applicant in relation to these officers. [69] As conceded by the Applicant, it is open to PPSC-Edmonton to ultimately impose a condition on disclosure to the Applicantthat the material not be copied or further disclosed to anyone except as is necessary in defending the Applicant on the charges before theCourt. [70] Any further issues arising prior to disclosure to the Applicant may be referred to this Court. b.

Detective Lewis [71] The situation is more complex with respect to the records relating to the prosecution of Det. Lewis. [72] Det. Lewis is accused of trafficking in steroids around the time of the Applicant’s arrest. His preliminary inquiry is yet tooccur. PPSC-Edmonton has an obligation to keep apprised of developments in the case against Det. Lewis as it unfolds. [73] PPSC-Edmonton advises that Det. Lewis was involved as the Exhibit handler for searches of residences and any vehiclessearched during the warrant execution on February 12, 2013.

Some exhibits were located and seized by him, and others were located bymembers of the investigative team and turned over to him to document and secure as part of the process. There is no indication beforethe Court at this point that Det. Lewis had any direct dealings with the Applicant, nor that he was instrumental in terms of theinvestigation or particular steps in the case preceding the arrest and searches. There has been no finding against him of seriousmisconduct at this point in time, including any finding in the nature of deceit or dishonesty.

He is presumed innocent until proven guiltyof trafficking in steroids. [74] The Applicant is entitled to employ all legitimate means to test both the reliability and credibility of the witnesses called bythe Crown at his own trial. The purpose of trials is to ascertain the truth. The most effective mechanism available to arrive at the truth iscross examination. It is a right not lightly interfered with. The Applicant may attempt to use the materials in relation to Cst. Toma andCst. Yaremchuk to cross examine Det. Lewis to test his credibility. The Applicant may also be entitled to cross examine Det.

Lewis onthe facts underlying the outstanding charges against him: R v Gonzague (1983), (ON CA), 4 CCC (3d) 505, [1983]OJ No 53 (CA). [75] ASIRT and PPSC-Vancouver admit the relevance of the post-arrest statement provided by Det. Lewis and the ASIRT finalreport (redacted). Although Det. Lewis apparently made no admission in the statement, I find that PPSC-Edmonton should obtain both ofthese documents for review. [76] The Supreme Court in McNeil contemplated that the Crown would act as “gate-keeper”.

It will be up to PPSC-Edmonton todetermine in the first instance, based on the materials previously provided and those provided pursuant to the Court’s direction, whetherfurther information held by the other parties may be material to the Applicant’s case and therefore form part of first party disclosure. [77] That leaves the issue regarding the remainder of the records relating to Det. Lewis. All parties addressed the possibility thatthe Court on this application might approach disclosure of some or all of the materials under the O’Connor regime. The Respondents did

not concede the likely relevance of the thousands of pages of additional requested records. The Court was advised that they include witness interviews (around 100 interviews of 65 interviewees) concerning knowledge regarding who was using or selling steroids. There are 44 hours of audio and 53 hours of video, not all of which are transcribed. There are a few physical exhibits, some expert reports, work e-mails, and phone messages. [ 78 ] These materials are relevant to allegations against Det. Lewis which have not yet been the subject of a judicial determination or finding.

To the extent that the materials might relate to Det. Lewis’ credibility, they may also be relevant to the Applicant’s case. It is safe to assume that some or even much of the material may be irrelevant. However, given the entire context, including the fact that the misconduct of Cst. Toma and Cst. Yaremchuk is related to the subject matter of the charges against Det. Lewis, it is also safe to assume that there is some material which will be relevant to the credibility of PPSC-Edmonton’s own witnesses. Therefore, it is incumbent on PPSC-Edmonton to take steps to determine whether that is the case. [ 79 ] Det.

Lewis raises the concern that disclosure will impact his own right to a fair trial. PPSC-Vancouver is also concerned about preserving the integrity of Det. Lewis’ trial. They argue that the file includes a vast amount of private information that would deeply interfere with his right to privacy, citing R v Quesnelle , 2014 SCC 46 , [2014] 2 SCR 390. I note, however, that Quesnelle dealt with the production of reports given by a sexual offence complainant in unrelated matters. [ 80 ] This objection, based on privacy concerns, appears to put the cart before the horse.

There is no suggestion that mere provision of any of the materials to PPSC-Edmonton would significantly breach anyone’s privacy or fair trial rights. Further, I am confident that appropriate procedures and mechanisms can be implemented with respect to any eventual disclosure to the Applicant, such as redacting witness names, trust conditions and publication bans in order to minimize interference with privacy and to ensure Det.

Lewis’ right to a fair trial and the integrity of his prosecution. [ 81 ] One legacy of McNeil is that the accused’s right to make full answer and defence, with few exceptions, will outweigh competing privacy interests, including records in the hands of third parties. Of particular relevance to this application, Charron J at para 42 specifically addressed criminal investigation files concerning third party accused by quoting from David M.

Paciocco, “Filling the Seam between Stinchombe and O’Conno r: The “ McNeil” Disclosure Application” (2007), 53 Crim LQ 161 at 199-200: ...it would be perverse to hold that investigative information is not private enough to impose any constraints on the ability of the police to gather it and the Crown to use it to seek the conviction of the target of that investigation, yet that same information is protected by privacy interests when it contains relevant information that would help someone defend himself. [ 82 ] PPSC-Edmonton, having been notified of the existence of relevant information, cannot sit back and disregard the matter.

The Crown has obligations to promote the proper administration of justice. This is its undivided loyalty. The duty includes an obligation to make reasonable inquiries of other Crown agencies and departments that could reasonably be considered to be in possession of potentially relevant evidence pertaining to the credibility or reliability of the Crown’s witnesses in a case: McNeil at paras 49-50 .

The Ferguson Report recommends, and the Court in McNeil endorses, the proposition that if the Crown is notified of information potentially relevant to the accused, it not only must make inquiries of other Crown departments and agencies, but must review related documents in its gate-keeping role to determine what documents should be provided to the accused. [ 83 ] With respect, PPSD-Edmonton appears to have abrogated its duty in this circumstance. It is troublesome that the Applicant was provided updated McNeil Reports only after a second request was made to the Crown in June 2015.

The request was prompted by a media report on Det. Lewis. No explanation was provided for the delay in providing the information in a timely way and without prompting. A McNeil Report should have been provided to the Applicant as soon as PPSC-Edmonton was appraised of the situation after Det. Lewis was charged in March 2015. First party disclosure cannot be left to happenstance. [ 84 ] Once PPSC-Edmonton received information that Det.

Lewis had been charged under the CDSA and that two of the officers involved in the investigation and arrest of the Applicant were found guilty of serious misconduct potentially impacting their credibility, it had a positive duty to inquire of the EPS, ASIRT and PPSC-Vancouver regarding potentially relevant information in their possession that could reasonably impact on the Applicant’s trial.

To date, this has not been done, despite the fact PPSC-Edmonton has known of the potentially relevant information for almost one year. [ 85 ] While PPSC-Vancouver and ASIRT have acknowledged the relevance of the various statements provided by the officers, it is not their role, any more than it is the role of the EPS, to determine the scope of Stinchcombe disclosure.

That function can only be fulfilled by the prosecuting Crown who has intimate knowledge of the case against the Applicant. [ 86 ] It appears the policy of the EPS is to limit the contents of the McNeil Report in cases of police misconduct, to the “findings”. While that is the starting point, McNeil contemplates a more fulsome role on the part of police services. This appears to be recognized in the policies in other provinces.

In a document entitled Disclosure of Police Misconduct dated November 2009, the Nova Scotia Public Prosecution outlines a detailed policy for the screening of the McNeil Package, the vetting of privileged information and personal identifiers and a protocol for providing materials to defence counsel. A similarly comprehensive policy appears to exist in British Columbia.

The policy of the EPS is not nearly as comprehensive, nor does it address the scope of McNeil disclosure. [ 87 ] Finally, I am mindful that the Court in McNeil recognized that it is neither efficient nor justified to leave the entire question of access to police misconduct records to be determined in the context of the O’Connor regime for third party production: at para 59. This, it would appear, is exactly what the Crown purports to do here.

Rather than obtain and review the documents in issue, the Crown proposes that they all be provided to the Court for review and that production be determined through an O’Connor application. Such an approach is the mischief which the comments in McNeil were intended to avoid. Order [ 88 ] PPSC-Edmonton is directed to request and obtain the following records from an agency in possession of them: the transcripts

of the interviews of Cst. Toma and Cst. Yaremchuk, and the criminal investigation file in relation to Det. Lewis. [ 89 ] PPSC-Edmonton is to disclose to counsel for the Applicant all non-privileged information that is not clearly irrelevant. [ 90 ] Information that is not disclosed must be sufficiently identified so as to allow counsel for the Applicant to make an informed decision as to whether he wishes to challenge PPSC-Edmonton’s refusal to produce. [ 91 ] PPSC-Edmonton may obtain input from counsel for Cst. Toma and Det. Lewis regarding privacy issues.

Further, personal identifiers may be used, and information contained within the documents appropriately redacted. [ 92 ] The disclosure is to be provided to counsel for the Applicant in a sealed package. Mr.

Davidson is to be placed under a trust condition not to make copies of the documents provided to him, to retain the documents in his possession and not to disclose the documents to anyone except as is necessary to defend the Applicant or his co-accused. [ 93 ] To be clear, this preliminary decision addresses only the threshold issue of whether the documents are considered first party disclosure under Stinchcombe. The parties have leave to address any issues regarding further disclosure, the use of documents at trial, the admissibility of documents and other issues pertaining to Det. Lewis’ right to a fair trial.

Heard on the 17 th day of March, 2016. Dated at the City of Edmonton, Alberta, this 7 th day of April, 2016. Dawn Pentelechuk J.C.Q.B.A. Appearances: Dawn M. MacDonald Public Prosecution Service of Canada for the Respondent/Crown Robert H. Davidson, Q.C. Davidson Gregory Danyluik for the Applicant/Accused Lam Akram Attia (no appearance) Attia Reeves for the Accused Glasser

Anita Chan and Lesley Ann Kilgore Public Prosecution Service of Canada for Public Prosecution Service of Canada - Vancouver Katrina M. Haymond and Mick Wall Field Law for the Intervenor Chief of Police, Edmonton Police Service Neil R. Boyle Alberta Justice and Solicitor General for Alberta Serious Incident Response Team Dino Bottos DePoe and Bottos for Greg Lewis Kent J. Teskey, Q.C. Pringle Chivers for Adam Toma No appearance For Kevin Yaremchuk