R v Vader, 2016 ABQB 228

Court of Queen ’ s Bench of Alberta Citation: R v Vader, 2016 ABQB 228 Date: 20160429 Docket: 130781800Q1 Registry: Edmonton Between: Her Majesty the Queen Crown - and - Travis Edward Vader Applicant (Accused) - and - Attorney General of Canada (Respondent) Corrected judgment: A corrigendum was issued on February 2, 2017; corrections have been made to the text and the corrigendum is appended to this judgment and directs the marking of an exhibit and the imposition of a sealing order and publication ban on the exhibit.

Corrected judgment: A corrigendum was issued on May 3, 2016; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Reasons for Judgment – Production Application of the Honourable Mr. Justice D.R.G. Thomas A

summary was delivered orally on April 13, 2016. These written reasons form the official judgment of the Court. _______________________________________________________

Table of Contents I. Introduction. 2 II. Facts. 3 III. Stinchcombe or O’Connor?. 4 1. The Federal Witness Protection Regime. 6 2. Analysis. 6 IV. Privilege. 8 1. Public interest privilege. 8 2. Statutory privilege. 9 3. Records revealing Mr. Olson’s location. 9 4. Records revealing information about Program operations. 10 5. Records revealing confidential communications. 10 V. Third party production. 12 VI Constitutionality of the non-disclosure provisions in the Act 12 VII Conclusion. 12 I. Introduction [1] After commencement of his trial on March 8, 2016, Mr.

Vader applied for an order directing the Crown and the RoyalCanadian Mounted police (“RCMP”) (including the unit which administers the Witness Protection Program (“Program”)) to provide allrecords respecting David Olson (“Mr. Olson”), a proposed Crown witness. Mr. Vader seeks an order covering a wide scope ofinformation composed of at least eleven different categories, as detailed in his notice of motion.

The RCMP responds to the applicationthrough the Attorney General of Canada (“AG Canada”). [2] The application is in the nature of R v Stinchcombe, (SCC), [1991] 3 SCR 326/R v O’Connor, (SCC), [1995] 4 SCR 411. [3] Mr. Vader also seeks an order declaring s 11 of the Witness Protection Program Act, SC 1996, c 15 (the “Act”) to becontrary to ss 7 and 11(

d) of the Canadian Charter of Rights and Freedoms to the extent that the Act purports to prohibit the disclosureor production of the information which he seeks. [4] This application was dealt with solely by way of written materials from the AG Canada and the defence.

The prosecutingCrown took no position on this application, but did provide assistance to the Court. [4.1] In the course of deciding this Production Application, the Court was provided with documents from the RCMP WitnessProtection Unit relating to a Crown witness, David Olson and, with the exception of a risk assessment, these documents were reviewedby me on April 9, 2016. The information was contained on a USB key provided to the Court by Mr. Bruce Hughson, general counsel,Prairie Region, Department of Justice Canada. I direct that Mr.

Hughson’s cover letter, the USB key and my notes from my review bemarked as Exhibit AA on this application. These materials shall be sealed and may only be accessed upon further order by me or anyJustice of the Court of Appeal of Alberta or of the Supreme Court of Canada, in the event of an appeal. I impose a continuing publicationban in respect to all contents of Exhibit AA. II. Facts [5] The RCMP began providing witness protection assistance to Mr. Olson in October of 2014, pursuant to s 6(2) of the Act(“Emergency situations”). The Program determined that Mr.

Olson faced a security risk in relation to his potential role as a Crownwitness in Mr. Vader’s trial on first degree murder charges. The RCMP and Mr. Olson entered into an agreement in December 2014reflecting the RCMP’s commitment to provide assistance involving Mr. Olson’s relocation to a safer area (the “Agreement”). [6] The Agreement states that the RCMP would not be providing protection under the Program established by the Act. Instead,the RCMP agreed to provide “limited assistance, separate from the protection that the RCMP provides to witnesses admitted to theProgram”.

A member of the RCMP has deposed that the Program coordinated this protection and I find as a fact that the RCMP didprovide such protection to Mr. Olson, which continues to this day.

[ 7 ] Mr. Vader seeks records and information relating to, inter alia , the protection Mr. Olson has received in relation to his proposed involvement in this trial. As stated, Mr. Vader has framed the request into eleven categories of records, which Counsel for the AG Canada has articulated as follows: 1. correspondence between the Program and Mr. Olson (documents pertaining to interactions between the Crown and/or RCMP and Mr. Olson, and a specific request for correspondence between the Crown and/or RCMP and Mr. Olson regarding the provision of evidence by Mr. Olson); 2. means and methods of the Program (Mr.

Olson’s application and consideration of admission into the Program and all drafts of the Agreement); 3. payments made to Mr. Olson (various documents relating to payments and other benefits received by Mr. Olson from the Crown and/or RCMP); and 4. other information obtained by the Crown and/or RCMP concerning false or misleading statements made by Mr. Olson, and any information concerning offences with which Mr. Olson has or may have been charged in exchange for provision of evidence in Mr.

Vader’s first degree murder trial. [ 8 ] I have not considered any records which, as part of the normal pre-trial process, the prosecuting Crown has already disclosed to the defence. Specifically, those records include at least two copies of Mr. Olson’s criminal record. It is my understanding that the prosecuting Crown has provided the defence with an updated version of this information (Exhibit 1 on this application).

To the extent that materials contained in the packet of targeted documents overlap with records that have already been disclosed to the defence as part of its Stinchcombe obligations, I do not consider this application to cover those records. III. Stinchcombe or O’Connor ? [ 9 ] To the extent that relevant, non-privileged records are fruits of the investigation, the prosecuting Crown must disclose these first party records; all other Crown entities are third parties ( R v Quesnelle , 2014 SCC 46 at para 11 , [2014] 2 SCR 390).

Unfortunately, the Supreme Court of Canada has muddied the water somewhat in its recent pronouncements with respect to whether the police are first or third parties (see Quesnelle (“[a]ll other Crown entities, including police, are ‘third parties’” at para 11); R v McNeil , 2009 SCC 3 , [2009] 1 SCR 66 (“[the investigating police force] acts on the same first party footing as the Crown” at para 14)). [ 10 ] The Court of Appeal of Alberta—after McNeil but before Quesnelle —has made it clear that the disclosure duty of the investigating police force extends only to the fruits of the investigation of an accused, and does not include other materials or files in the possession of the police ( R v Black , 2011 ABCA 349 at para 31 , 515 AR 319). [ 11 ] Prior to McNeil , this Court considered a principled and pragmatic approach to determining whether the Stinchcombe or O’Connor regime governs an application for disclosure ( R v Coopsammy , 2008 ABQB 266 at para 76 , 445 AR 160, Thomas, J. citing R v Scurr , 2008 ABQB 127 at paras 45–57 , 441 AR 203, Belzil J).

This approach recognized three categories of information to which Stinchcombe applies: 1. The complete record of the investigation of the charges before the Court must be disclosed by the Crown on the authority of Stinchcombe , even if it is in the possession of the police (usually referred to as the "fruits of the investigation”). 2. Information not part of the investigation but prepared for the purpose of it must be disclosed by the Crown on the authority of Stinchcombe , even if in the possession of the police. 3.

Information which is not part of the investigation or prepared for the purpose of it, but is nonetheless intrinsically linked to the investigation. Stinchcombe will apply if there is a factual and evidentiary link between the information sought and the charges before the Court.

A factual connection standing alone is not enough; rather, there must be both a factual and evidentiary link ( i.e. , the additional information sought must have some probative value in the proceedings). [ 12 ] Although this principled and pragmatic approach has not been widely adopted, it is still useful, especially along the margins, which is where the subject-matter of this application lies. Counsel for Mr. Vader suggests that the communications between the RCMP and Mr.

Olson are “factually and intrinsically connected with the circumstances of the case before the Court such that the material would not have been obtained or created but for the occurrence of the incident” (citing R v Smith , 2007 ABQB 172 at para 20 , 419 AR 179, a case which presaged Belzil J.’s formulation of the principled and pragmatic approach). [ 13 ] Very recently, the Ontario Court of Appeal described “fruits of the investigation” as “information acquired by means and in consequence of that investigation” ( R v Jackson , 2015 ONCA 832 , 128 OR (3d) 161).

In Jackson , the prosecuting Crown had disclosed records of tests and checks executed by an Intoxilyzer device to ensure that it was in proper working order. The accused also sought disclosure of the service, usage, and calibration records for the instrument, which records were in the possession of the Ottawa Police Service.

In considering whether the information was first or third party, the Court looked at two principal factors: (1) the nature of the information of which disclosure/production was sought ( i.e. , are the records fruits of the investigation?); and (2) who was in possession or control of that information ( i.e. , does the prosecuting Crown possess or have control of the information?) (at para 91). [ 14 ] On the first factor, the Court considered whether the information had been created, produced, or even located during the investigation of the accused and his alleged offences (at para 95).

The panel found that the records played no role in the acquisition of any evidence available for proffer in the prosecution. On the second factor, Watt J.A. noted that, although the O’Connor production scheme exists for information in the hands of third parties who are strangers to the litigation, “a record-holder need not be a complete stranger to the litigation” in order for O’Connor to apply, citing McNeil and citing non-prosecuting Crown entities as examples (paras 83, 85). The Court concluded that the sought records were third party records.

[ 15 ] Counsel in this case have not advised of any cases where a court has considered whether information held by the federal Program is first or third party information as it relates to disclosure in a criminal proceeding. In the case of R v Le , 2011 MBCA 83 at para 69 , 270 Man R (2d) 82, Scott, C.J. affirmed the trial judge’s finding that information held exclusively by the High-Risk Witness Management Program (operated by the Manitoba Department of Justice) and the Secure Operations Unit of the Winnipeg Police Service —which operated closely together—was third party.

In making this conclusion, the trial judge highlighted the following: • The information was not prepared by, used, or reviewed by police investigating the charge. • The information was not directly related to the incident or facts on which the charge was based (documents were created after the charge was laid, and concern events, while directly relevant to the credibility of the witnesses, have nothing to do with the witnesses’ conduct at the time of the offence). • Although part of the witness protection regime was a unit of the same police agency that investigated the charge, it was completely isolated from the units that investigate crimes, did not share information about its activities with investigators, and was not part of the same reporting structure as the investigating units. • The provincial program operated separate and apart from public prosecutions and did not share information with the prosecuting Crown or police concerning its activities. • The investigating officers did not discuss the investigation with witness protection staff. • The work of the witness protection organizations was focussed solely on the security of the individuals they are assisting ( R v Le , 2008 MBQB 96 at para 59 , 232 Man R (2d) 45). 1.

The Federal Witness Protection Regime [ 16 ] The federal government has situated its witness protection regime within the RCMP. Various provincial governments also operate witness protection programs, operating administratively outside of police forces. In addition to establishing the Program, the Act authorizes the Commissioner of the RCMP to determine whether a witness should be admitted to the Program and the type of protection to be provided to anybody in the Program.

The Act also restricts the RCMP from disclosing Program information and creates an offence in that regard. [ 17 ] Whereas in the past there were stronger links between the witness protection and investigative functions of the RCMP, the force now administers the Program independently from investigative interests. “Program Independence” is one of three pillars, which over the past few years has guided significant changes to the structure and operation of the Program.

As evidence of those changes, the administration of the Program was removed from the RCMP’s covert operations program and now reports directly to a separate Assistant Commissioner. [ 18 ] The Program consists of dedicated units located across Canada. Staff in these units make contact with persons receiving protection for the purpose of ensuring their safety, addressing adaptation needs, and assisting them in becoming self-sufficient.

These contacts are segregated from investigative contacts, and the Program does not provide RCMP investigators with information related to a person receiving protection. [ 19 ] Pursuant to the Act , a person may receive protection either by being formally admitted to the Program, or by virtue of a decision by the Program to provide protection in emergency situations without admitting them formally to the Program: 6

(1) A witness shall not be admitted to the Program unless … (

c) an agreement has been entered into by or on behalf of the witness with the Commissioner setting out the obligations of both parties.

(2) Despite subsection (1), the Commissioner may, in a case of emergency, and for a period of not more than 90 days, provide protection to a person who has not entered into a protection agreement. The Commissioner may, if the emergency persists, provide protection for one additional period of not more than 90 days. [ 20 ] The Program provided emergency protection to Mr. Olson under s 6(2) of the Act . 2. Analysis [ 21 ] The defence takes the position that, but for the RCMP’s investigation and the Crown’s prosecution of Mr.

Vader, the records in question would not exist, and indeed, the records are in the hands of the same police agency that investigated Mr. Vader. Given that the RCMP’s dealings with Mr. Olson in the witness protection capacity arose directly out of Mr.

Vader’s charges, Counsel argue that the records are fruits of the investigation and, accordingly, should be treated as first party information subject to Stinchcombe disclosure. [ 22 ] The AG Canada, on the other hand, takes the position that these records are not fruits of the investigation given that Program staff perform no investigative function for the RCMP, and their work deals solely with witness security. Counsel submits that, at law, first party disclosure is limited to the police’s investigative file.

Given that these documents arise out of work performed by Program staff, and given that their involvement with Mr. Olson was entirely non-investigative, counsel for the AG Canada argues that the records should be considered third party information, subject to the O’Connor production regime. [ 23 ] I adopt the analysis of the Ontario Court of Appeal in Jackson by considering, firstly, the nature of the information of which disclosure/production is sought, and secondly, who is in possession or control of the information.

[24] To the extent that Mr. Vader seeks correspondence between the Program and Mr. Olson, means and methods of the Program,and payments made to Mr. Olson as part of his receiving protection, this information is not directly related to the facts on which Mr.Vader’s charges are based. The information in these records played no role in the acquisition of any evidence available for proffer in theprosecution. I agree with Mr. Vader’s counsel that, but for the investigation, Mr. Olson would not have received protection from theProgram.

However, as this Court stated in Coopsammy, a factual connection alone is not enough. There must be both a factual andevidentiary link to ground a finding that the information is fruits of the investigation. The evidentiary link is not found here. [25] On the question of who is in possession or control of the information, this case is factually similar to Le. The Program is acomponent of the RCMP, the same force that investigated Mr. Vader’s charges.

However, the Program is completely isolated from theRCMP’s investigative resources, it does not share information about its activities with investigators, and the Program has a differentreporting structure from the investigating units. The work of the Program is focussed solely on issues of security of the individuals theyare protecting. [26] This Court must be responsive to the subtle changes in how the Supreme Court of Canada has articulated the distinctionbetween first and third party information as it relates to Crown entities, including the police.

In its latest pronouncement, Quesnelle, allCrown entities, aside from the prosecution, are third parties. However, this has not eliminated the legal obligation of the investigatingpolice to disclose to the prosecution the fruits of the investigation of the accused. [27] The RCMP is a large and complex police force operating across Canada. It is not restricted to investigating and preventingcrime. Instead, its mandate is broader, and includes performing all duties in relation to the preservation of peace (Royal CanadianMounted Police Act, RSC 1985, c R-10, s 18(a)).

The federal government has, through the Commissioner of the RCMP, chosen toorganize the force in such a way as to administer the federal witness protection regime. [28] The Commissioner has taken steps to separate the witness protection and investigative functions. The effect of that is to createa work unit that is, for all intents and purposes, as separate from the investigating police force as if it were situated in another federaldepartment or agency. If that were the case, it would have generated substantially the same set of records in relation to Mr.

Olson, andthere would be no question that those would be third party records. [29] Although the RCMP possesses the information that Mr. Vader seeks, the investigative arm of the police does not possess thatinformation. Rather, the Program does, and the uncontroverted evidence before me shows that neither the investigators nor theprosecuting Alberta Crown will have any lawful way to access this information. [30] Accordingly, I find that the information is in the nature of a third party record and the O’Connor production regime applies. IV.

Privilege [31] Where an accused seeks third party information under the O’Connor regime, the record-holder, or some other interestedperson, may assert the existence of privilege in an attempt to bar the application for production, regardless of their relevance (McNeil atpara 27).

In that situation, the burden is on the accused to demonstrate why privilege is wrongly claimed (R v Eddy, 2014 ABQB 164 atpara 92, 583 AR 217). [32] If the accused is unable to shed sufficient doubt on the claim of privilege, then the only way for him to succeed in anO’Connor application is to establish some basis that his innocence is at stake without disclosure. Such a claim must go beyond the merespeculation that disclosure would assist him in his defence.

Instead, the accused must show a basis on the evidence for concluding thatdisclosure is necessary, and not merely helpful (R v Barros, 2011 SCC 51 at para 34, [2011] 3 SCR 368). On the other hand, if theaccused is able to demonstrate that privilege was incorrectly claimed, then the Court must proceed with the two-step O’Connor process. [33] In the case at bar, the AG Canada has asserted a common law public interest privilege as well as statutory privilege, being thenon-disclosure provisions found in s 11(1) of the Act.

The Crown argues that, on the basis of these privileges, the Court should decline toorder production. [34] Following the procedure described by Sulyma J. in R v Chan, 2002 ABQB 287 at para 145, 307 AR 232, counsel for the AGCanada provided the Court with the targeted documents for my review. Upon my invitation, the parties provided further writtensubmissions as to whether privilege applies in this case. 1.

Public interest privilege [35] Public interest privilege arises out of the common law rules of evidence, related either to national security or the effectiveconduct of government (Bisaillon v Keable, (SCC), [1983] 2 SCR 60 at 97; R v Richards (1997), (ON CA), 100 OAC 215). It is not a Crown privilege per se, but rather a public interest immunity for the Court to weigh.

The opinion ofthe Crown officer such as the AG Canada who is asserting such immunity is important to consider, but is not determinative (Carey vOntario, (SCC), [1986] 2 SCR 637 at 653). [36] Whether immunity from production is in the public interest requires a balancing of the competing interests that warrantsecrecy on the one hand and disclosure on the other. This balancing must necessarily include consideration of an accused’s Charter rightto make full answer and defence.

If the Court determines that upholding the privilege claim would not prevent the accused from makingfull answer and defence, then the claim will be upheld (R v Hernandez, 2010 BCCA 514 at para 23, 264 CCC (3d) 498). [37] Public interest privilege has been invoked to bar disclosure of records in a wide variety of situations in criminal cases. For ourpurposes, I note that these can include communications worthy of confidentiality, the safety of individuals, and the location of a witnesslocated under a witness protection program (R v McClure, 2001 SCC 14 at para 26, [2001] 1 SCR 445; R v Trang, 2002 ABQB 19 at

para 31, 307 AR 201; R v Cosgrove (1997), (NL SC), 154 Nfld & PEIR 151 at para 30 (Nfld SC (TD))). [38] Public interest privilege is assessed on a case-by-case basis, wherein the Court balances the public interest in disclosureversus the public interest in confidentiality or secrecy, as the case may be. 2. Statutory privilege [39] Counsel for the AG Canada takes the position that ss 11(1)(

b) and (

c) of the Act create a statutory privilege which should barthe Court from making an O’Connor production order.

If I find that these provisions of the Act apply in relation to the targeted records, Imust consider whether or not they create a privilege of the kind that makes it unnecessary for me to consider the two stages ofO’Connor. [40] In R v McKay, 2002 ABQB 335, 344 AR 59, the accused applied for production of the benefits received by the complainant,incidental to the complainant’s participation in the federal witness protection program—as it existed then—as well as incidentalinformation relating to that program.

The RCMP declined to provide any of the targeted information, claiming statutory and publicinterest privilege. At the time, the statutory non-disclosure provision was much narrower as compared to its modern version. [41] In McKay, Veit J. found that the non-disclosure provisions did create a statutory privilege, and continued to say that itestablished “the framework within which privacy interests and public interests are to be weighed” (at para 7). However, as a consequenceof the narrowness of this privilege, she concluded that it did not apply to the targeted records.

Had the opposite been the case, hercomments suggest that she would have considered the statutory provisions at the second stage of the O’Connor analysis. [42] Courts in other jurisdictions have considered whether the presence of a statutory privilege makes the O’Connor analysisunnecessary, or whether it belongs at the second stage.

They have uniformly found that the presence and effect of a statutory privacy orconfidentiality regime—even when characterized as statutory privilege—should be considered at the second stage of the O’Connoranalysis (see R v James, 2006 NSCA 57 at para 61, 243 NSR (2d) 349; R v Dunbar, 2003 BCCA 667 at para 58, 191 BCAC 223; R vDick, 2009 NBQB 98 at para 16, 348 NBR (2d) 292). [43] Given my finding which follows, to the effect that it is unnecessary at the second stage of O’Connor to go beyonddetermining the relevancy of the residual targeted documents, it is unnecessary to consider the impact of the non-disclosure provisionscontained in the Act. 3.

Records revealing Mr. Olson’s location [44] Having reviewed the targeted documents, I am satisfied that they contain information which could disclose Mr. Olson’slocation. The RCMP determined that Mr. Olson faced security risks relating to his role as a witness in the criminal investigation of Mr.Vader, and I am not in the position to challenge that conclusion. I have also determined that the records containing this informationwould not meaningfully assist Mr. Vader in his defence. [45] The defence, in its written brief dated April 8, 2016, stated that “Mr. Vader does not require disclosure of Mr.

Olson’s presentaddress, or even the country in which he resides,” being that the defence is interested only in understanding the details surrounding thebenefits which Mr. Olson has received in his relocation. The defence suggests that Mr. Olson’s credibility is in issue, being that his levelof cooperation with the RCMP and the Crown has been influenced. [46] The defence position regarding Mr. Vader’s lack of interest in Mr. Olson’s location is unconvincing. The Program conducteda thorough analysis and determined that Mr. Olson would face an increased risk of harm if he were not relocated.

The Crown has alreadydisclosed to Mr. Vader the amount of money the Program spent in relocating Mr. Olson. [47] The defence cites my colleague, Veit J., for the proposition that “triers of fact cannot make decisions without being aware ofstate benefits offered to witnesses which may skew their testimony” (MacKay at para 29). I agree with her. However, neither this Courtnor Mr.

Vader needs any more detail of the Program’s expenditure in this regard, over and above what the Crown has already disclosed.As such, the balance of the expenditure records contain information of minimal probative value, and consequently there is no publicinterest in ordering their production. [48] Given that the knowledge of Mr. Olson’s location might place him at an increased risk of harm, and given the importance tothe administration of justice in facilitating the testimony of all key witnesses in a criminal trial, I find that a public interest privilege existsto keep secret records which could reveal Mr.

Olson’s location. 4. Records revealing information about Program operations [49] Some of the documents reveal communications among Program staff relating to their handling of Mr. Olson. This revealsinsight and intelligence on how the Program operates. Just as police investigative techniques often fall within public interest immunity, Iam of the view that, in this case, it is necessary to apply immunity to records that reveal how the Program operates. There is great valueto the administration of justice in ensuring that all witness protection programs operate without compromise.

Furthermore, I find that thiscategory of records contains information of no probative value which would assist Mr. Vader in his defence. 5. Records revealing confidential communications [50] Finally, there are a great number of records which clearly were generated as a result of interviews with Mr. Olson, andenquiries to various third party organizations for his personal information, on his behalf. The Program staff gathered this information tobuild a profile on Mr. Olson, further to conducting a risk assessment and, ultimately, deciding to provide protective services.

[ 51 ] The Wigmore test governs the case-by-case circumstances under which confidential communications are protected by public interest privilege ( McClure at para 29 , citing Wigmore, John Henry, Evidence in Trials at Common Law , vol 8 (Boston: Little, Brown, 1961)):

(1) The communications must originate in a confidence that they will not be disclosed.

(2) This element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.

(3) The relation must be one which in the opinion of the community ought to be sedulously fostered.

(4) The injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation. [ 52 ] Given the very nature of the Program and its objectives, and as evidenced by the Agreement which contains a clear confidentiality clause, the first Wigmore step is easily satisfied. I cannot imagine a scenario where Program staff would invite communications from individuals receiving protection without a clear and persuasive promise of confidentiality. [ 53 ] The circumstances are such that the second Wigmore step is also satisfied.

Mr. Olson is a vulnerable individual, not only because his personal safety likely became jeopardized by virtue of his involvement in the investigation into the McCanns’ disappearance, but also because he apparently suffers from some cognitive deficit.

From materials shown to me he is obviously very anxious about his personal safety, and would likely lose confidence in the Program and its staff were the communications to be produced to the defence or otherwise be made public. [ 54 ] On the third step of the Wigmore test, I note that the Quebec Court of Appeal has emphasized the importance of the witness protection system as it relates to the safety of vulnerable witnesses ( R v Minisini , 2008 QCCA 2188 , 66 CR (6th) 306).

That Court recognized that, not only is it in the public interest to protect witnesses, but also to safeguard the witness protection system as a whole (at para 52).

Although that case was decided in the context of an application under s 37 of the Canada Evidence Act , RSC 1985, c C-5, which is the codification of the common law public interest privilege, its principles are applicable in the context of an application for the recognition of common law privilege. [ 55 ] The Program itself recognizes that its primary focus is on the physical integrity of protected individuals who are at risk because of their assistance to the state ( Witness Protection Program Act , s 2; Witness Protection Program Advisory Committee, First Annual Report to the Commissioner (RCMP, 2015) at 10–12).

In their 2008 report, the Standing Committee on Public Safety and National Security noted that witness protection measures are “indispensable in the fight against crime and essential to maintaining the rule of law” (House of Commons, Review of the Witness Protection Program (March 2008) at 5 (Chair: Garry Breitkreuz)). [ 56 ] On the fourth step of Wigmore, I must consider the nature and seriousness of the offence under investigation and the probative value of the records sought to be obtained, measured against the public interest in respecting the RCMP’s promise of confidentiality to Mr.

Olson ( R v National Post , 2010 SCC 16 at para 61 , [2010] 1 SCR 477). Part of this weighing must necessarily also include Mr. Vader’s Charter right to make full answer and defence. Mr. Vader faces very serious charges. [ 57 ] Regarding the public interest in protecting confidentiality, ordering the production of Program records would undermine public confidence in the ability of the federal government to administer a witness protection regime.

The public has an interest in knowing that the personal safety of vulnerable witnesses who communicate with witness protection staff expressly in exchange for receiving protection are not jeopardized by the threat of Court-ordered production of those communications. It would shock the public if communications in these circumstances were to be revealed in the name of Charter rights, especially if to do so were to undermine completely the entire objective behind the RCMP’s soliciting and recording those communications.

As a result, I conclude that the fourth step of the Wigmore test is satisfied in this case. [ 58 ] To the extent that the targeted records contain information as described above, I find that there exists a public interest privilege which prevents this Court from ordering their production. As such, I need not consider their true relevance or proceed with any further weighing under the O’Connor regime. [ 59 ] There are residual records that are not captured in the analysis above. I now proceed to consider whether these materials should be produced. V.

Third party production [ 60 ] At the first stage of O’Connor , if the Court is satisfied that the information is likely relevant, the Court may order production of the record for its inspection.

At the next stage, with the records in hand, the Court determines whether, and to what extent, production should be ordered to the applicant ( McNeil at para 27 ). [ 61 ] At the second stage, the Court should start by assessing the true relevancy of the records: “If the court is satisfied that the documents are clearly irrelevant, there is no basis for compelling production to the accused, and the application can be summarily dismissed” ( McNeil at para 40 ).

On the other hand, if the targeted records are indeed relevant to the accused’s case, the Court must conduct a balancing of the third party’s privacy interest in the targeted documents, if any, and the right of the accused person to make full answer and defence. [ 62 ] There are records here which are not subject to public interest privilege, including financial administration records (e.g. disbursement reports, internal requests for payment, receipts, and journal vouchers) and correspondence among RCMP staff (to the extent that they do not reveal privileged information, such as to how the Program operates). [ 63 ] Having had an opportunity to review these records, I conclude that they are not relevant to the criminal proceedings.

VI Constitutionality of the non-disclosure provisions in the Act [ 64 ] Given that I have decided that the non-disclosure provisions in the Act do not apply in this application, I make no ruling on their constitutionality. VII Conclusion [ 65 ] Having found that the targeted records are either protected by public interest privilege at common law, or are not relevant, Mr. Vader’s application for production is denied and the defence motion is dismissed. Heard on the 24th day of March, and the 4 th and 13 th days of April, 2016 on the basis of written argument.

Dated at the City of Edmonton, Alberta this 29 th day of April, 2016. D.R.G. Thomas J.C.Q.B.A. Appearances: Mr. Nathan Whitling (Beresh Cunningham Aloneissi O'Neill Hurley) for the Applicant (Accused) Mr. Bruce F. Hughson and Ms. Kanchana Fernando (Federal Department of Justice) For the Attorney General of Canada Representing the RCMP Mr. Ashley Finlayson, Q.C., (Crown Prosecutor – Specialized Prosecutions Branch) for the prosecuting Crown _______________________________________________________

Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice D.R.G. Thomas – May 3, 2016 _______________________________________________________ Following submissions heard on May 2, 2016 from Ms. Kanchana Fernando, counsel for the Attorney General of Canada, representing the RCMP, from Mr. Brian Beresh, QC, for the Applicant (Accused) Travis Edward Vader and from Mr. Fred Kozak, QC, for various media participants, Mr. Justice Thomas directed that the last sentence of paragraph 56 of the judgment filed April 29, 2016 be redacted.

A copy of the judgment with that redaction is the version which may be published. The original judgment, dated and filed April 29, 2016, is subject to a sealing order. _______________________________________________________ Corrigendum of the Reasons for Judgment of The Honourable Mr. Justice D.R.G.

Thomas – February 2, 2017 _______________________________________________________ This paragraph has been added to the Introduction as paragraph [4.1] on Page 3 of these Reasons for Judgment: In the course of deciding this Production Application, the Court was provided with documents from the RCMP Witness Protection Unit relating to a Crown witness, David Olson and, with the exception of a risk assessment, these documents were reviewed by me on April 9, 2016. The information was contained on a USB key provided to the Court by Mr. Bruce Hughson, general counsel, Prairie Region, Department of Justice Canada.

I direct that Mr. Hughson’s cover letter, the USB key and my notes from my review be marked as Exhibit AA on this application. These materials shall be sealed and may only be accessed upon further order by me or any Justice of the Court of Appeal of Alberta or of the Supreme Court of Canada, in the event of an appeal. I impose a continuing publication ban in respect to all contents of Exhibit AA.