R v Addow, 2016 ABQB 223

Court of Queen ’ s Bench of Alberta Citation: R v Addow, 2016 ABQB 223 Date: 20160415 Docket: 130465776Q1 Registry: Edmonton Between: Zaynab Addow Applicant - and - Her Majesty the Queen Respondent - and - Attorney General of Canada Respondent - and - The Chief of the Edmonton Police Service Respondent

_______________________________________________________ Reasons for Judgment of the Honourable Justice S.J. Greckol _______________________________________________________ I. Introduction [1] Through a letter filed by her Counsel Mr. Tom Engel, Ms. Addow alleged that two members of the Edmonton Police Service(EPS) entered her residence on February 4, 2011, searched the premises without warrant, took DNA samples without lawful authority,handcuffed her, assaulted her, threatened her, and used racial slurs. The Professional Standards Branch of the EPS investigated theallegations and concluded they were unfounded. Then Ms. Addow was charged with mischief contrary to section 140(1)(

c) of theCriminal Code. [2] The Crown alleges that on January 30th, 2012, Ms. Addow caused a police officer to investigate by reporting that an offencehad been committed when it had not. Ms. Addow was arrested on April 11, 2013. A direct indictment was filed on June 24, 2015. Ms.Addow is to be tried in Edmonton before a judge sitting alone on June 20 – 29, 2016. [3] On February 24th, 2016, Counsel for Ms. Addow filed a Notice of Constitutional Argument seeking a stay of the proceedingsagainst her as a remedy under s 24(1) of the Charter of Rights and Freedoms.

The grounds for the Charter application are that certainmembers of the EPS misrepresented facts during an omnibus disclosure application that affected multiple cases including that of Ms.Addow. The application was dismissed with written reasons published in the case of R v Galenza, 2014 ABQB 236. [4] Using the process set out in the Police Act, RSA 2000, c P-17, s 46.1, Counsel for Ms. Addow complained that the EPSofficers gave false and misleading evidence in the Galenza disclosure proceedings. The Minister directed the RCMP to conduct aninvestigation.

In its investigation report, the RCMP dismissed the allegations. [5] Counsel for Ms. Addow now seeks disclosure of the RCMP investigation report on the basis that such alleged misconduct bythe police in the omnibus disclosure application warrants a stay of the proceedings against her. II.

Issue [6] All parties have framed the issue before me as whether the RCMP investigation report is properly characterized as firstparty records, producible via the Stinchcombe disclosure obligation (R v Stinchcombe, (SCC), [1991] 3 SCR 326(SCC)); or whether they are properly characterized as a third party records producible via an O’Connor application (R v O’Connor,(SCC), [1995] 4 SCR 411 (SCC)), if at all. III. Background Facts [7] The disclosure application brought by Ms. Addow, and determined by the Galenza decision, was for electronic informationwithin the EPS records management system.

The Court in Galenza described the nature of the information sought in some detail, atparas 6-12 and paras 30-42. [8] Since 2010, EPS has operated the Information Management Approval Center (IMAC) from police headquarters. Thecomputer system was created as a quality control device to monitor Occurrence Reports filed by members of the service so as to ensurequality and consistency and to facilitate timely disclosure of information during the prosecution of criminal cases. The officer producesan initial report which must be approved by her immediate supervisor in the field.

Once that approval is obtained, it is submitted toIMAC for final approval. A supervisor in IMAC must give final approval to the report before it is entered in the database and provided tothe Crown and Defence. The reports are examined for content and form. The IMAC Center may request changes. [9] The Applicants in the omnibus application decided in Galenza argued that the communications between the officers whoprepare the Occurrence Reports and the IMAC staff must be disclosed as first party records.

The Chief of Police, as Intervener, and theCrown, argued they are third party records disclosable only if the Applicants can establish the proper evidentiary basis through anO’Connor application. [10] The evidence lead by witnesses for the EPS was that to reconstruct communications prior to the final filing of the OccurrenceReport would require extensive work by an analyst with special training and would be very time consuming. The Applicants suggestedthere was in effect a conspiracy between the EPS, the Crown and the Edmonton Police Commission to conceal material revisions tothese reports.

The Court in Galenza gave the conspiracy theory short shrift. [11] The Court in Galenza thoroughly summarized the law concerning disclosure as mandated by Stinchcombe, R v Chaplin, 1995

126 (SCC), [1995] 1 SCR 727 (SCC), O’Connor, R v McNeil, 2009 SCC 3, and R v Black, 2011 ABCA 349, a relatively recentpronouncement of the Albert Court of Appeal. The Court then concluded that the communications sought by the Applicants, includingMs. Addow, were not the fruits of the investigation in relation to any of the applicants so as to be disclosable under the Stinchcombeobligation.

Neither were the records disclosable as first party records under the rule in McNeil – they are not fundamentally relevant anddisclosable as were the police disciplinary records in that case. [12] The Court in Galenza, at para 51, found that the records sought were third party records disclosable through the O’Connorregime. However, the Court also found that “… the evidence of the Applicants [did] not raise the possibility that the threshold ofrelevance [had] been met” (at para 52).

The Court dismissed the disclosure application. [13] In a subsequent disclosure application made in a case called R v Bachelet, unreported, (Edmonton, 120588298P1 (Alta ProvCt)), Counsel for the EPS advised the judge prior to his ruling that there is another method to retrieve the desired information concerningthe re-working of the Occurrence Reports, and that the time involved was less than that asserted in evidence in Galenza. [14] As noted, Counsel for Ms.

Addow then complained to the Chief of Police (Chief) that the EPS officers gave false andmisleading evidence in the Galenza disclosure proceedings, using the process set out in the Police Act. Also as noted, subsequent to thedirection of the Minister to the RCMP to conduct an investigation, the RCMP did an investigation and issued a report. [15] Ms. Addow now contends that the RCMP investigation is complete and seeks disclosure of the RCMP’s investigation and theinvestigation report. Both the RCMP and the EPS refuse to provide the requested information to the Crown for disclosure to theApplicant.

The RCMP did not recommend any further action nor have charges been laid against the EPS members in question. [16] The communication records relevant to the re-working of Occurrence Reports were subsequently disclosed to Ms. Addow’strial Counsel. The Crown has requested that the EPS provide related records that have not yet been provided, but will be disclosed. IV. Positions of the Parties [17] Ms. Addow seeks three categories of records in this application.

First, she seeks all materials respecting who produced thetask activity report re-working materials provided in the Addow prosecution, the type of training she had, how long it took to producethe materials, and what steps were involved.

Second, she seeks all material respecting any investigation that led to a letter dated October3, 2014 sent by the Field Law firm to the Provincial Court in the Bachelet matter. (The letter alerted the Court to the fact that thedisclosure sought was more readily producible than previously represented.) Third, she seeks all evidence gathered in the RCMPinvestigation of the complaint about misrepresentations made by the RCMP in Galenza. [18] Counsel for Ms. Addow argues that the requested records are first party records and must be disclosed as part of theStinchcombe obligation.

He relies on McNeil at para 54 to argue that disclosure is “self-evident” when the misconduct in questionrelates to the incident forming the subject matter of the charge against the accused, but is not limited to that. Though not directly relatedto the investigation, if it is relevant to the case of the Accused in some way, it should be disclosed. [19] According to Counsel for Ms.

Addow, the stay application hinges on three inquiries: were there misrepresentations made tothe court; if so, who made them and how many people were involved in such misrepresentations; and if so, to what extent were theypurposefully made. [20] He argues that the RCMP investigation file and report is relevant (indeed, central to) the stay application because the stayapplication is based on the misrepresentations made by EPS members at the Galenza omnibus disclosure application brought on behalfof Ms. Addow, among others.

Even as first party disclosure must be made with respect to records related to the trial issues, it must bemade in this case as it is related to the basis of the stay application. [21] Counsel for Ms. Addow concedes that that the disclosure in question in this application does not fall within the so-called“Ferguson Five” exceptions contemplated by the Supreme Court of Canada in the McNeil decision (see paras 55-59). [22] Counsel for the Chief submits that the threshold issue is whether the RCMP investigation report and related information arefirst party or third party records.

She argues that the requested disclosure does not constitute Stinchcombe “fruits of the investigation”,not does it fall within the narrow exceptions carved out in McNeil (i.e. the “Ferguson Five”). [23] Rather, Counsel for the Chief argues that the requested disclosure must be the subject of the two-step process established inthe O’Connor case. [24] Counsel for the Chief relies on the decision of the Court in R v Mindus, unreported, ((September 16, 2015), Edmonton,130015217P1 (Alta Prov Ct)), where Day PCJ made such a finding in a related case pertaining to the same RCMP records.

She arguesthat the principle of judicial comity commends following the decision in Mindus. [25] Counsel for the Chief further submits that there are no records in the first category of disclosure sought by Ms.

Addow, therecords pertaining to the preparation of the letter from the Field Law firm, if any, are covered by solicitor-client privilege, and thedisclosure sought concerning the RCMP investigation and report are third party records so as to be properly the subject of an O’Connorapplication. [26] Counsel for the RCMP takes no position with respect to the records sought in the first two categories; however, Counselmaintains that the RCMP records are third party records and subject to an O’Connor application. He helpfully provided the recentdecision of the Ontario Court of Appeal in R v Jackson, 2015 ONCA 832.

V. Analysis [27] I have reviewed the authorities provided, and in particular those mentioned above. A most concise

summary of the distinctionbetween first party (Stinchcombe) disclosure and third party (O’Connor) production is found in the Jackson case, a decision penned byWatt JA in his inimitable fashion. [28] The basic premises concerning first party disclosure are found in Jackson at paras 79 – 82: [79] Under Stinchcombe, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or controlto persons charged with criminal offences.

Disclosure of this information allows the person charged to understand the case she or he hasto meet and permits him or her to make full answer and defence to the charges: Stinchcombe, at pp. 336-40; R. v. Quesnelle, 2014 SCC46 [2014] 2 S.C.R. 390, at para. 11. The duty is triggered upon request without recourse to a court: McNeil, at para. 17. [80] For the purposes of first party or Stinchcombe disclosure, the term “the Crown” refers to the prosecuting Crown only, not to allCrown entities, federal and provincial.

All other Crown entities, including the police, are third parties: Quesnelle, at para. 11; McNeil, atpara. 22. Apart from the police duty to supply the prosecuting Crown with the fruits of the investigation, records in the hands of thirdparties, including the police and other Crown entities, are generally not subject to the Stinchcombe disclosure rules: Quesnelle, at para.11; McNeil, at para. 25. [81] The assimilation of the police and Crown as a single entity for disclosure purposes is narrowly confined.

Apart from the policeduty to disclose to the Crown the fruits of the investigation, the two are unquestionably separate and independent entities, not only in factbut also in law. The police investigate. The Crown decides whether, what, whom and how to prosecute: McNeil, at paras. 23, 25.Production of criminal investigation files involving third parties, at least as a general rule, falls to be determined on an O’Connorapplication.

This is so at least in the absence of a nexus between the third party and subject investigation: McNeil, at para. 25. [82] The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of theprosecuting Crown entity. This material is commonly described as the “fruits of the investigation”, that is to say, material gatheredduring the investigation of the offence with which the accused is charged: McNeil, at para. 23.

Relevant information includes not onlyinformation related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect ofwhich there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence: McNeil,at para. 17; Stinchcombe, at pp. 343-44. [29] The basic premises concerning third party disclosure are found in Jackson at paras 83 – 85: [83] A separate disclosure/production scheme exists for records and information in the hands of third parties, strangers to thelitigation. This scarcely surprises.

After all, third parties are under no obligation and have no duty to assist the parties in litigation or todisclose information to them: O’Connor, at para. 102. [84] The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority: O’Connor, at para. 134.The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and towhat extent the material will be produced.

The application sets out the grounds upon which production is sought. The supportingmaterial seeks to establish the relevance of the material to an issue at trial including: i. the unfolding of the narrative; ii. the credibility of a witness; iii. the reliability of other evidence; or iv. the competence of a witness to testify: O’Connor, at para. 134; McNeil, atparas. 27, 33. [85] For the purposes of this third party production regime, a record-holder need not be a complete stranger to the litigation.

Recallthat Crown entities, other than the prosecuting Crown, are third parties under this regime: McNeil, at para. 13.

And this is so eventhough some records of the same entity may be subject to the first party disclosure scheme of Stinchcombe: McNeil, at para. 15. [30] In McNeil, at paras 57-59, Charron J, writing for the Court, endorsed a number of scenarios where records concerning policewitnesses fall within first party disclosure, categories identified in the Review and Recommendations Concerning Various Aspects ofPolice Misconduct prepared by George Ferguson, QC: 57 The Ferguson Report concluded that leaving the entire question of access to police disciplinary records to be determined under theO'Connor regime for third party production "is neither efficient nor justified" (p. 15).

In order to assist in bridging the gap between firstparty disclosure and third party production, the Ferguson Report made a number of recommendations, including the automatic disclosureby the police upon request by the Crown of the following information regarding acts of misconduct by a member of the Toronto PoliceService who may be a witness or who was otherwise involved in a case before the court (at p. 17): a. Any conviction or finding of guilt under the Canadian Criminal Code or the Controlled Drugs and Substances Act [for which a pardonhas not been granted]. b.

Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act. c. Any conviction or finding of guilt under any other federal or provincial statute.

d. Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act . e. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued. 58 The Ferguson Report recommended that upon receiving this information from police, the Crown act as "gate-keeper", 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 Ferguson Report made the further recommendation that any concerned officer who was the subject of disciplinary records produced to the Crown be notified in writing and be given the opportunity to make submissions to the Crown. 59 I agree 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.

Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary 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 without prompting ... [ 31 ] Counsel agreed that the RCMP records sought in this application do not fall within the “Ferguson Five” so as to be treated as first party disclosure. [ 32 ] Also helpful is the judgment of our Court of Appeal in Black , where the impact of the McNeil decision on the disclosure rules is assessed at paras 30-35: [30] I commence this analysis with a review of what was stated by Charron J. in McNeil .

For the purposes of this appeal, the first important statement of law in McNeil is found at para 13 in which she confirmed that Crown entities, other than the prosecuting authorities, are third parties under the O’Connor production regime. [31] The second important statement of law is that although the disclosure obligation rests with the prosecuting authority, the investigating authority is under an obligation to disclose to the prosecuting authority all material pertaining to its investigation of the accused.

For the purposes of fulfilling this corollary obligation, an investigating police force is not a third party, but acts on the same footing as the prosecuting authority. However, this corollary duty only extends to the fruits of the investigation, being the investigation of the accused, and does not include other materials or files in the possession of the police; for example, criminal files relating to a victim or witness.

If the accused wants access to those files he or she must make an O’Connor application. [32] Third, records relating to findings of serious misconduct by police officers involved in the investigation against the accused fall within the scope of first party disclosure, provided the misconduct relates to the investigation or could reasonably impact on the case against the accused.

Production of disciplinary records and criminal investigations that do not fall within the scope of first party disclosure is governed by the O’Connor regime for third party production. [ 33 ] Fourth, relevancy is the threshold for disclosure whether the disclosure is first or third party. With respect to first party disclosure it will normally be the only criteria governing whether or not material or information needs to be disclosed (privilege or privacy interests may rarely have to be addressed).

With respect to third party disclosure, privacy interests and claims of privilege must be weighed by the court hearing the application for disclosure.

The Crown’s disclosure obligation includes any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right of full answer and defence. [ 34 ] Fifth, under first party disclosure, the obligation rests with the Crown to justify any non-disclosure of material in its possession on the assumptions that material in the possession of the prosecuting authority is relevant to the accused’s case and that such material will likely comprise the case against the accused.

If the Crown attempts to justify non-disclosure of material in its possession, it must show that the material is clearly irrelevant. Conversely, the onus is on the accused person to show that third party records are likely to be relevant; this forms the first step in an O’Connor application.

The test of likely relevance for third party disclosure is more broadly stated by asking whether “there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”: McNeil at para 33 . [ 35 ] Finally, as part of the fulfilment of the police’s corollary duty to disclose to the Crown, information related to police misconduct that is obviously relevant to the accused’s case should be disclosed as first party disclosure.

This does not apply to all findings of police misconduct, as the officer whose conduct is maligned may have only 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. Records concerning police disciplinary matters that do not fall within the scope of obvious relevance should be dealt with under the third party O’Connor regime. [Emphasis added] [33] Counsel for Ms.

Addow seeks disclosure of records pertaining to the investigation undertaken by the RCMP as a result of his complaint of alleged misconduct by the officers who testified in Galenza about the logistical difficulties in producing the technical communications. The Court in Galenza examined closely the EPS evidence concerning the IMAC system and the feasibility of producing the communications between the investigating officer, the supervisor, and the IMAC staff that ultimately result in the Occurrence Report filed in the databank for disclosure and posterity.

Sanderman J found no evidence of conspiracy to subvert justice by intentional obfuscation of the technological communication chain. Since his decision, however, the EPS revealed another means to produce the records in question and does so now upon the request of Counsel. [34] The information that came to light concerning the ready availability of the requested IMAC records precipitated Counsel’s complaint regarding the EPS officers who gave evidence in Galenza . That, in turn, resulted in the RCMP investigation and its report that recommended no action. [35] The stay application brought by Ms.

Addow is based upon alleged police misconduct in giving evidence concerning impediments to disclosure of electronic communications in the Galenza case. As her case was one of those under the Galenza umbrella, there is some connection between the alleged police chicanery and the Addow criminal prosecution before the Court. Counsel for Ms.

Addow uses that alleged police misconduct as the basis for the Charter application to stay proceedings against her. Presumably, Counsel will contend that the RCMP investigation and report into the alleged police misconduct will provide relevant evidence to establish the grounds upon which the Charter application is based. [ 36 ] However, there is no evidence or argument or material submitted in this application showing any relationship between the police investigation of the allegations against Ms. Addow and the alleged police misconduct while giving evidence in the disclosure application in Galenza (though Ms.

Addow’s disclosure application was determined by that ruling).

The alleged misconduct is not made against officers involved in the Addow case nor does the alleged misconduct relate to the fruits of their investigation. [ 37 ] Using the language employed in Black (at paras 32 ) when summarizing the principles from McNeil , it cannot be said that the RCMP records relate to findings of serious misconduct by police officers involved in the investigation against the accused, where the misconduct relates to the investigation or could reasonably have an impact on the case against the accused, so as to fall within the scope of first party disclosure. [ 38 ] In a broad sense, if misconduct by the police officers while presenting evidence in the Galenza disclosure application were to be proved, arguably that misconduct could have an impact upon the case against the Accused.

However, I interpret the “case against the Accused” in the context of that discussion in Black as referable to the fruits of the investigation that result in the prosecution. Misconduct by police during a later disclosure application does not have the required nexus to the investigation to bring it within the realm of first party disclosure, certainly on the facts of this case. VI. Conclusion [ 39 ] Ms.

Addow seeks three categories of records in this application: materials respecting who produced the task activity report re- working materials provided in the Addow prosecution, what training that person had, how long it took to produce the materials, and what steps were involved; all material respecting any investigation that led to a letter dated October 3, 2014 sent by the Field Law firm to the Provincial Court in the Bachelet matter; and all evidence gathered in the RCMP investigation of the complaint about misrepresentations made by the RCMP in Galenza . [ 40 ] According to Counsel for the EPS, there are no records in the first category; and the records requested in the second category from the Field Law firm are protected by solicitor-client privilege.

The position taken by EPS Counsel provides a full answer to the requests for documents in the first two categories and Counsel for Ms. Addow did not argue otherwise. Therefore, the disclosure application relative to the documents within the first two categories is dismissed. [ 41 ] The application for Stinchcombe disclosure of records pertaining to the RCMP investigation and report concerning alleged misrepresentation by EPS members during the Galenza hearing is dismissed. The records sought are properly characterized as third party records and Ms.

Addow must advance an O’Connor application if she wishes to pursue such disclosure. Heard on the 29 th day of March, 2016 . Dated at the City of Edmonton, Alberta this 15 th day of April, 2016. S.J. Greckol J.C.Q.B.A. Appearances:

Tom Engel Engel Law Office for the Applicant Neil Wiberg Adam Badari for the Crown Cameron G Regehr Department of Justice for the Respondent Attorney General of Canada Katrina Haymond Michael Wall Field Law for the Respondent Edmonton Police Service