R v Addow, 2016 ABQB 312

Court of Queen ’ s Bench of Alberta Citation: R v Addow, 2016 ABQB 312 Date: 20160602 Docket: 130465776Q1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Zaynab Addow Applicant - and - Attorney General of Canada Respondent - and - The Chief of the Edmonton Police Service Respondent _______________________________________________________

_______________________________________________________ Reasons for Judgment of the Honourable Madam Justice S.J. Greckol _______________________________________________________ I. Introduction [1] The Applicant, Ms. Addow, applies under R v O'Connor, (SCC), [1995] 4 SCR 411, [1995] SCJ No 98 fordisclosure of RCMP investigation records regarding a complaint she made under the Police Act, RSA 2000, c P-17 alleging policemisrepresentations in a disclosure hearing. II. Background [2] 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 a 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. [3] Ms. Addow was then charged with mischief contrary to s. 140(1)(

c) of the Criminal Code, RSC 1985, c C-46. The Crownalleges that on January 30, 2012, Ms. Addow caused a police officer to investigate by reporting an offence when no offence had beencommitted. Ms. Addow was arrested on April 11, 2013. A direct indictment was filed on June 24, 2015. Ms.

Addow was to be tried inEdmonton before a judge sitting alone from June 20 to 29, 2016, but the trial will be adjourned to deal with defence preliminaryapplications. [4] Over the course of these events, an issue has been percolating regarding whether EPS is required to disclosure certain typesof information. [5] The EPS uses computer technology for the purposes of electronic collection and reporting of information gathered byofficers in the field.

Using the Edmonton Police Recording and Occurrence System (EPROS), members of EPS gather information ofevents and record their observations in Occurrence Reports. [6] Since 2010, EPS has operated the Information Management Approval Center (IMAC) from police headquarters. A computersystem was created as a quality control device to monitor Occurrence Reports to ensure quality and consistency and to facilitate timelydisclosure of information in criminal cases. The investigating officer produces an initial report that must be approved by her immediatesupervisor in the field.

Once that approval is obtained, it is submitted to IMAC for final approval before it is entered in the database andprovided to the Crown and Defence. The reports are examined for content and form. The IMAC may request that deficiencies beaddressed. [7] Around November 2010, the President of the Criminal Trial Lawyers’ Association (CTLA) and Mr.

Engel, Chair of theCTLA Policing Committee, began expressing concerns to the Chief of the EPS (the Chief) and other EPS members about the failure ofpolice officers to preserve drafts of Occurrence Reports that resulted in their final, re-worked reports and later, the Task Activity Log thattracks such changes, for disclosure to accused persons. [8] In R v Oxley, 2013 ABCA 65, [2013] AJ No 634, the Court of Appeal commented at para 16 that it is problematic andtroubling for third parties (quality assurance people) to be telling police officers what to put in their reports.

It stated that if changes are tobe made to officers’ reports, copies of all drafts, and the source of all changes, should be kept. [9] On August 12, 2013, Engel Law Office requested disclosure of records in Addow, including those showing the reworking ofOccurrence Reports and the Task Activity Log (rework records). [10] In April 2014, Ms. Addow and other accused applied for disclosure of certain rework records relating to the internalmonitoring by EPS of the quality and consistency of EPS officers’ reports.

They argued that any communications between the officerswho prepare the Occurrence Reports and the IMAC staff must be disclosed as first party records.

The applicants suggested there was ineffect a conspiracy between the EPS, the Crown and the Edmonton Police Commission to conceal material revisions to these OccurrenceReports. [11] The Chief, as Intervener, and the Crown, argued that rework records are third party records disclosable only if the Applicantscan establish the proper evidentiary basis through an O’Connor application. [12] EPS witnesses gave evidence that reconstruction of communications prior to filing the final Occurrence Report would requireextensive, time-consuming work by an analyst with special training. [13] On April 29, 2014, Sanderman J. dismissed the application with written reasons: R v Galenza, 2014 ABQB 236, 587 AR 346,

giving the conspiracy theory short shrift. In the course of his reasons, he commented at paras 11, 12 and 30 on the evidence regarding the cost, time and effort which would be involved in reconstructing the communications between the IMAC staff and the investigating officer. [ 14 ] On August 8, 2014, Engel Law Office made a disclosure request in R v Mutch for information about when officers had worked on their Occurrences Reports.

As a result of the information received, Engel Law Office made a further request on September 10, 2014, raising concerns about the EPS evidence in Galenza and another case from the Galenza omnibus application, Bachelet (a drinking and driving case). [ 15 ] On October 3, 2014, Ms. Haymond, Counsel for the Chief , wrote to Allen P.C.J. who was presiding over Bachelet , explaining that the rework documents relative to Occurrence Reports were accessible in a manner not indicated in the evidence of Mr. Farrell and Inspector MacDonald in Galenza : Mr.

Farrell testified that the only method that can be used to determine whether re-work commentary exists is to retrieve, print and interpret task activity logs obtained from EPROS. While the method described by Mr. Farrell in his testimony is an accurate and comprehensive method for obtaining the information, it is not the only method that exists. There is a computer application associated with EPROS called I-Reporter, which was introduced in October, 2010. Increased functionality has been added to I-Reporter over time.

As of July 2011, some members of the EPS have been able to use I-Reporter to review the history of re-work commentary provided by IMAC to sworn members in connection with their reports. This information is available in a user-friendly format. A screen shot of the re-work commentary displayed to a user can be printed, and re-work commentary may be cut and pasted into a separate document. ... I have subsequently been informed that the amount of time reported by Mr.

Farrell to retrieve and interpret the task activity logs was based on an assumption that the information being sought was broader than a history of only the re-work commentary provided by IMAC. The time estimates that Mr. Farrell provided for him to retrieve, review and interpret the task activity logs included a consideration of other information, including “tasks” that may be assigned by persons other than IMAC supervisors.

Also, these time estimates did not consider an existing functionality option to retrieve IMAC re-work commentary from the task activity logs. [ 16 ] On October 6, 2014, a stay of proceedings was entered in Bachelet without a further consideration of this issue. [ 17 ] On October 14, 2014, Mr. Engel filed a complaint under s. 46.1 of the Police Act , RSA 2000, c P-17 to the Chief (the Engel complaint) alleging that Mr. Farrell and Insp.

MacDonald made “serious misrepresentations” during the Galenza proceedings while testifying about the technological process related to the re-work records: It is nothing short of shocking that three constables with the Edmonton Police Service in one prosecution knew how to access this information but Richard Farrell and Inspector MacDonald did not. My position is that these are very serious misrepresentations not only to the Crown Prosecutors’ Office but to the Court and defence counsel. ...

It seems to me that it is obvious that this is a complaint “of a serious or sensitive nature related to the actions of a police officer,” and you must, therefore, pursuant to s. 46.1 of the Police Act notify the Edmonton Police Commission and the Minister of that. Even if the Minister does not make a s. 46.1 direction, it is my position that you must, pursuant to s. 45(5) request that the Edmonton Police Commission have another police service investigate the complaint. [ 18 ] The Minister subsequently directed the RCMP to conduct an investigation.

The RCMP investigation had the potential to result in criminal, regulatory or disciplinary proceedings against the officers or EPS personnel in question ( Police Act , ss. 46.1 ff). The RCMP issued an investigation report dismissing the allegations. The RCMP did not recommend any further action.

No charges have been laid against any sworn or unsworn member of the EPS pursuant to the Criminal Code or any regulatory statute, and no Notice of Hearing has been issued pursuant to the Police Act in relation to the conduct of any sworn member of the EPS. [ 19 ] On February 27, 2015, the Crown disclosed rework records in another Galenza case, R v Mindus . [ 20 ] On March 12, 2015, the Crown disclosed rework records in Addow indicating no rework of Occurrence Reports. [ 21 ] In June 2015, EPS implemented automated disclosure of rework records. [ 22 ] On September 16, 2015, Day P.C.J. dismissed an application in Mindus for Stinchcombe disclosure of the RCMP investigation records relating to the Engel complaint. [ 23 ] On February 24, 2016, Counsel for Ms.

Addow filed a Notice of Constitutional Argument seeking a stay of the proceedings against her as a remedy under s. 24(1) of the Canadian Charter of Rights and Freedoms ,

Part I of The Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982 c 11. Ms. Addow alleges that EPS witnesses Richard Farrell and Insp. MacDonald made misrepresentations to the defence and the Court in Galenza as to the process for retrieving EPS rework records. [ 24 ] Counsel for Ms.

Addow sought disclosure of the RCMP investigation records relating to the Engel complaint, arguing that they are necessary to make full answer and defence through the stay application. [ 25 ] On April 15, 2016, I concluded that the RCMP investigation records of the Engel complaint are not first party records under R v McNeil , 2009 SCC 3 , [2009] SCJ No 3, but rather third party records subject to the O’Connor application process: R v Addow , 2016 ABQB 223 , [2016] AJ No 385.

III. Issue [ 26 ] Ms. Addow now seeks disclosure under O’Connor of the RCMP investigation records created as a result of the Engel complaint of alleged police misconduct in the Galenza disclosure hearing for use in advancing her stay application. [ 27 ] At the first stage of O’Connor , the Applicant must establish likely relevance.

For the sake of efficiency, all counsel agreed that I should proceed to the second stage of the O’Connor procedure, and the RCMP agreed to provide the material in issue to the Court. [ 28 ] This Court must balance the positive and negative effects of ordering production of the records in question. IV. Legislation [ 29 ] The Police Act provides: Serious incidents and complaints 46.1(1) The chief of police shall as soon as practicable notify the commission and the Minister where ...(

b) a complaint is made alleging that ...(ii) there is any matter of a serious or sensitive nature related to the actions of a police officer.

(2) The Minister, when notified under subsection (1) of an incident or complaint or on the Minister’s own initiative where the Minister becomes aware of an incident or complaint described in subsection(1), may do any one or more of the following: ... (

b) request or direct another police service to conduct an investigation into the incident or complaint, which may include taking over an ongoing investigation at any stage;

(3) A chief of police or police officer acting under subsection (2)(a), (

b) or (

d) or a person appointed under subsection (2)(

c) shall report as required to the Minister.

(4) If the chief of police or police officer in charge of the police service conducting an investigation under subsection (2)(

b) or (

d) is of the opinion that the actions of the police officer that are the subject of the investigation constitute (

a) an offence under

an Act of the Parliament of Canada or the Legislature of Alberta, the chief or police officer shall (

i) refer the matter to the Minister of Justice and Solicitor General, and (ii) advise the commission and the chief of police of the police service under investigation of the chief’s or police officer’s findings, unless the Minister of Justice and Solicitor General otherwise directs, (

b) a contravention of the regulations governing the discipline or performance of duty of police officers, the chief or police officer shall refer the matter to the chief of the police service under investigation where it concerns the actions of a police officer, or to the commission where it concerns the actions of the chief of police, to be dealt with in accordance with this Part, ...

(7) A chief of police or police officer of another police service referred to in subsection (6) must advise a complainant, if any, in writing at least once every 45 days as to the status of the complaint.

(8) A copy of the document sent to a complainant under subsection (7) must be provided to the commission. Statements 10(2) A police officer in respect of whom an investigation is being carried out may, on a voluntary basis, provide the investigator with an explanatory report in the police officer’s own words setting out his version of the subject-matter of the complaint.

(3) Where (

a) a police officer in respect of whom an investigation is being carried out is directed by the investigator to provide an explanatory report referred to in subsection (2) setting out the police officer’s version of the subject-matter of the complaint, and (

b) pursuant to that direction the police officer provides an explanatory report, that explanatory report shall be regarded as an involuntary statement and shall not be admissible in evidence in any proceedings carried out under the Act, except to prove that the statement is false. ...

(6) A statement made under subsection (3) or (4) may be used by the chief of police for the purposes of section 45(3) or (4) of the Act and by the chief of police or the police officer in charge of the investigating police service for the purposes of

section 46.1(4) of the Act. Interview 10.5(1) The person in charge of the investigation referred to in

section 10.2, or a person acting under the authority of that person, may direct that a witness officer attend at an interview and answer questions.

V. Positions of the Parties A. Applicant [30] Counsel submits that in balancing the positive and negative effects of ordering production to the Court for inspection, theCourt should consider the right of the accused to full answer and defence and the effect of production on privacy and equality rights ofthe subjects.

In borderline cases, the Court should err on the side of production to the Court, and with few exceptions, the accused’s rightto access information to make full answer and defence will outweigh any competing privacy interest: McNeil at paras 41, 42. [31] In the stay application, counsel will argue that the misrepresentations in this case were so serious that they constitute abuse ofprocess both at common law and under s. 7 of the Charter, and fall within the residual category of circumstances warranting a stay. Theissue is harm to the integrity of the justice system. The nexus is that Ms.

Addow was an applicant in Galenza. Only Mindus and Addowremain to provide an opportunity for the Court to rule on this issue. [32] Counsel argues that the RCMP investigation records created as a result of the Engel complaint must be relevant to the stayapplication, as the complaint and the investigation concern the police conduct that is the focus of the stay application. He has calledthree witnesses thus far on the stay application, and intends to call Insp. MacDonald and Mr.

Farrell. [33] Counsel cites McNeil at para 29 for the proposition that he is not required to demonstrate the specific use to which he mightput information which he has not even seen.

He is entitled to fish in constitutionally protected waters: R v Bachelet, 2013 ABPC 11, 555AR 216 at para 78, citing R v Parmar (1987), (ON SC), 34 CCC (3d) 260, [1987] OJ No 203 (H Ct J). [34] Counsel relies upon the above quoted statements in Oxley, and on R v Tjernstrom, 2016 BCPC 8, [2016] BCJ No 130 inwhich a stay was entered because records of reworking were withheld. [35] He submits that there are no privacy issues that would prevent disclosure of the information given that the RCMPinvestigative file may well become part of the public record in proceedings involving the Law Enforcement Review Board: Edmonton(Police Service) v Alberta (Law Enforcement Review Board), 2014 ABCA 267, 580 AR 165 (Carlson).

There is no evidence that anyofficer’s statement was compelled, and in any event the distinction between voluntary and involuntary statements is inconsequential inthe circumstances. B. Respondents (

i) Crown/RCMP [36] Counsel argues that the four items in issue are wholly irrelevant to the Addow proceedings, and therefore would not even meetthe “likely relevance” tests required at stage one of the O’Connor hearing. The RCMP only produced the documents to the Court forefficiency. [37] Counsel submits that there is minimal evidence to support disclosure. There is no evidence of deliberate or systemicmisrepresentation. While the evidence led by EPS at the Galenza hearing turned out to be inaccurate, it did not affect Ms.

Addow’s case.There were no reworked Occurrence Reports in the Addow prosecution, hence the outcome of the Galenza hearing did not and could notaffect Ms. Addow’s interests. It follows that any misconduct during that application or efforts to suppress such reports cannot be relevantto her case. Since the Addow documents sought were disclosed, and show there was no reworking, the police officers did not prevent,nor could they have prevented, her from obtaining relevant underlying records.

Her involvement in the omnibus application in Galenza isinsufficient to create a nexus between any misconduct and the proceeding against Ms. Addow. As noted in McNeil at para 45, criminalproceedings should not be turned into a conglomeration of satellite hearings on collateral matters. [38] Counsel distinguishes Tjernstrom. In that case, the accused was charged with obstruction of justice and assaulting a policeofficer during an impaired driving investigation. The officer became the subject of a criminal investigation, consulted counsel, andreworked his report.

He had not retained the original and all revisions of his report prepared for Crown counsel. The Court stayed theproceedings because evidence which was specifically relevant to the assessment of the credibility and reliability of the officer’sobservations in the trial had been destroyed or lost. There is no such nexus here. (ii) Chief [39] Counsel for the Chief emphasizes the dicta from O’Connor at paras 193-194 that accused people cannot expect “perfectjustice”, and argues that there must be a realistic standard for disclosure that is both workable and affordable.

He further argues that therecords from the investigation of the Engel complaint are not relevant to the underlying prosecution. As far as the stay application, thereis no evidence of deliberate obfuscation. He asserts systemic privacy interests on behalf of the Chief in the process and records sought,citing for example R v Taing, 2011 ABPC 165, 520 AR 27 at para 97. (iii) Police Association [40] Counsel for the EPS Police Association reiterates that any misconduct in relation to disclosure of rework records does notaffect Ms. Addow’s case.

Counsel refers to three cases regarding the high bar applicable to the residual category of abuse of process andin particular the requirement for an ongoing systemic problem: R v Babos, 2014 SCC 16, [2014] 1 SCR 309, R v Gangl, 2011 ABCA357, 515 AR 337. Counsel also cited R v Lindsay, (ON SC), [2004] OJ No 3858, [2004] OTC 825 (Sup Ct Just)where the Court quashed a subpoena issued to the Attorney General. Disclosure of Insp. MacDonald’s compelled statement could have apotential impact on his reputation and privacy interests. Insp. MacDonald himself is not privy to the documents except for his own

statement due to the ongoing investigation. There is no evidence that Insp. MacDonald has made any inconsistent statements in thecontext of any affidavits or related proceedings. Counsel refers to R v Batte (2000), (ON CA), 49 OR (3d) 321, [2000]OJ No 2184 (CA) for the proposition that the mere fact that a person said something about a matter which could be the subject of cross-examination at trial does not raise a reasonable possibility that it will have some probative value in the assessment of her credibility.Insp. MacDonald’s privacy interest outweighs any limited relevance the documents may have to Ms.

Addow’s application. VI. Analysis A. The Records [41] The RCMP records created during the investigation of the Engel complaint include twelve documents. The Court and counselwere provided with a list of RCMP investigative materials. Of the 12 documents in the list, the following items are in dispute: 1. Statement of Sgt. David Lynass dated March 20, 2015. 2. Statement of Insp. Brad MacDonald dated March 30, 2015. 3. Statement of Rob Esau, EPS Business Analyst for EPROS project, dated January 16, 2015. 4.

Edmonton Police Service iReporter Reference Guide, Version 5.0, last modified August 18, 2014. [42] Defence counsel already has the rest of the investigation records. These are: 5. Letter from Suzanne Thompson to Engel Law Office dated December 18, 2012 regarding disclosure. 6. Letter from Katrine Haymond to Engel Law Office dated October 2, 2014 enclosing letter to Judge Allen dated October 3, 2014. 7. Letter of complainant from Engel Law Office to Rod Knecht, Chief of Police, dated October 14, 2014. 8.

Letter from Katrina Haymond to Engel Law Office dated June 21, 2013 regarding Notice of Motion in regards to Galenza. 9. Notice of Motion filed by Engel Law Office dated June 21, 2013. 10. Affidavit of Richard Farrell dated June 23, 2013 in regards to Galenza. 11. Trial excerpt from Bachelet dated June 2 to 4, 2014. 12. Transcript of Questioning on Affidavit of Richard Farrell on June 26, 2013. [43] The premise of the stay application is that Insp. MacDonald, and Mr.

Farrell, a technical support contractor working with EPSat the time, made material misrepresentations when they gave evidence at the Galenza disclosure hearing in an effort to subvert theability of accused persons to obtain disclosure of records that show the reworking of Occurrence Reports. As counsel acknowledged atthis hearing, he essentially alleges a conspiracy to suppress information and withhold re-work records from accused persons. [44] The affidavits of Mr. Farrell and Insp.

MacDonald filed at the Galenza hearing, as well as their cross-examination, have beenentered as evidence on the stay application by agreement between Mr. Engel and Crown counsel. [45] The transcripts of testimony from Insp. MacDonald and Mr.

Farrell in Bachelet have been entered as evidence by agreementon the stay application. [46] The above quoted October 2, 2014 letter from counsel for the EPS to Allen J. in the Bachelet case, explaining that the EPScould indeed produce the re-work records, contrary to the evidence led in Galenza, is evidence on the stay application. [47] Of the records sought, three of the four are statements. The first is the statement of Sgt. Lynass, in-house counsel with EPS.

Inthe event I order this statement disclosed to the Accused, the EPS will argue it is clothed with solicitor-client privilege. [48] The second is the statement of Insp. Brad MacDonald, one of the subjects of the Engel complaint and the RCMPinvestigation. This statement is comprised of what Insp. MacDonald told the RCMP investigator in responding to and defending againstthe Engel complaint. As noted, the RCMP decided that there was no basis to act on the Engel complaint. [49] The third statement is that of Robert Esau, Business Analyst of the EPROS project. [50] The fourth is the iReporter Guide, version 5.0. B.

The Legal Framework [51] The O'Connor decision provides the road map for pursuing disclosure of third party records. At para 134 of that decision, theCourt sets out the process where an accused seeks production of private records held by a third party: counsel must obtain a subpoenaduces tecum, serve the record holder, and provide notice to the Crown and any other person with an interest in the confidentiality of therecords.

At the hearing, the accused must bring an application, supported by appropriate affidavit evidence, showing that the records arelikely to be relevant either to an issue in the trial, or, as in this case, to the Charter application.

[52] At para 137, the Court sets out the process that must be followed at the hearing. When the accused applies for an order forproduction of the records, the judge should follow a two-stage approach. First, the accused must demonstrate that the informationcontained in the records is likely to be relevant either to an issue in the proceedings or to the competence to testify of the person who isthe subject of the records.

If the accused meets this requirement, the court must weigh the positive and negative consequences ofproduction, with a view to determining whether, and to what extent, production should be ordered. At each stage counsel for allinterested parties should be permitted to make submissions. [53] At paras 140 and 146 of O'Connor, the Court considers the nature of the evidence that must support the application.

Theapplication must be based on affidavit evidence which establishes to the judge's satisfaction that the information sought is likely to berelevant, not on speculative assertions or on discriminatory or stereotypical reasoning (a particular concern in sex assault cases). Theapplicant may rely on information from Crown disclosure, its own witnesses, and cross-examination of the Crown witnesses at both thepreliminary inquiry and the trial.

It may also be necessary to introduce expert evidence to lay the foundation for a production application.The determination of relevance is a fluid, rather than fixed, process – it may be addressed more than once during the trial. [54] The Supreme Court recently issued World Bank Group v Wallace, 2016 SCC 15, [2016] SCJ No 15 which contains a handyrecapitulation of the O’Connor and Stinchcombe applications and the distinction between the two: 114 [The O’Connor] process is distinct from the Stinchcombe framework which applies when documents are in the hands of theCrown or the police.

Under that framework, the Crown must disclose all documents in its “possession or control” which are relevant toan accused’s case (R. v. McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66, at para. 22; R. v. Stinchcombe, (SCC),[1991] 3 S.C.R. 326). To withhold disclosure, the Crown must demonstrate that the documents sought are “clearly irrelevant, privileged,or [that their] disclosure is otherwise governed by law” (McNeil, at para. 18; see also Stinchcombe, at p. 336). 115 Stinchcombe places the burden on the Crown to justify non-disclosure. In contrast, O’Connor requires the accused to justifyproduction.

These two regimes share a fundamental purpose: protecting an accused person’s right to make full answer and defence, whileat the same time recognizing the need to place limits on disclosure when required. [55] In O’Connor, McLachlin J. espoused a contextual approach to the disclosure application: 193 The task before us on this appeal is to devise a test for the production of records held by third parties which preserves the right ofan accused to a fair trial while respecting individual and public interest in privacy and the efficient administration of justice.

The key toachieving this lies in recognition that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, butrather a trial which is fundamentally fair: R. v. Harrer, (SCC), [1995] 3 S.C.R. 562. What constitutes a fair trial takesinto account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of othersinvolved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered.Perfection in justice is as chimeric as perfection in any other social agency.

What the law demands is not perfect justice, butfundamentally fair justice. 194 Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of informationwhich might possibly be useful to his defence. From the accused's perspective, the catalogue would include not only informationtouching on the events at issue, but anything that might conceivably be used in cross-examination to discredit or shake a Crown witness.When other perspectives are considered, however, the picture changes.

The need for a system of justice which is workable, affordableand expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up inthe justice system -- all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothingmore, is what the law requires. [56] Certain types of police misconduct and discipline records should be provided by police agencies without prompting as part ofthe Stinchcombe disclosure.

These records are commonly referred to as the Ferguson Five from the report prepared by Ferguson J. forthe Toronto Police Service.

They are summarized by Charron J. in McNeil at paras 57-59: any finding of guilt under the Criminal Codeor the Controlled Drugs and Substances Act; any outstanding charges under either Act; any finding of guilt under any other federal orprovincial statute; any finding of guilt for misconduct after a hearing under the Police Services Act; and any current charge of misconductunder a Police Services Act for which a notice of hearing has been issued. [57] Counsel agree that the records sought here do not fall within the Ferguson Five.

I refer to them only as a reflection of therange of police disciplinary records that must be disclosed, in order to put the present application in perspective. [58] Much ink has been spilled in both Provincial Court and this Court on the subject of disclosure.

Some courts have wrestled withthe question of the extent to which police misconduct records constitute Stinchcombe disclosure; these are summarized in the decision ofR v Perreault, 2010 ABQB 714, 497 AR 168. [59] However, the reflections in those cases are subsumed in R v Black, 2011 ABCA 349 at paras 30-35, 515 AR 319 where theAlberta Court of Appeal summarized the impact of McNeil.

I referred to Black in the Stinchcombe ruling in this case, and a portion ofthat reference is instructive in considering what falls within third party disclosure: 34 Fifth, under first party disclosure, the obligation rests with the Crown to justify any non-disclosure of material in its possession onthe assumptions that material in the possession of the prosecuting authority is relevant to the accused’s case and that such material willlikely comprise the case against the accused. If the Crown attempts to justify non-disclosure of material in its possession, it must showthat the material is clearly irrelevant.

Conversely, the onus is on the accused person to show that third party records are likely to berelevant; this forms the first step in an O’Connor application. The test of likely relevance for third party disclosure is more broadly statedby asking whether “there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of awitness to testify”: McNeil at para 33. [emphasis added]

[ 60 ] The Court in O'Connor at paras 31 and 156 set out factors to be considered in balancing the competing rights and interests in third party disclosure applications: (1) the extent to which the record is necessary for the accused to make full answer and defence; (2) the probative value of the record in question; (3) the nature and extent of the reasonable expectation of privacy vested in that record; (4) whether production of the record would be premised upon any discriminatory belief or bias and (5) the potential prejudice to the complainant's dignity, privacy or security of the person that would be occasioned by production of the record in question. [ 61 ] As Charron J., writing for the Court in McNeil , notes at para 35 the third and fourth factors mentioned in the O'Connor decision are obviously tailored to a sexual assault case, an area now the subject of the Mills process found in the Criminal Code .

What is required at the second stage of the common law regime is a balancing of competing interests at stake in the particular circumstances of the case; however, no exhaustive list can be crafted. [ 62 ] In the balancing of interests at stage two of the O’Connor process, “true relevancy” is determined.

As stated by Charron J.: 39 ... determining the existence of a reasonable expectation of privacy requires a contextual assessment having regard to numerous factors, including but not limited to: how the record was created; who created the record; the purpose of the record; the context of the case in which the record would be used; who holds the privacy interest; how the record was obtained by the Crown or police; the presence or absence of waiver; any applicable legislation; and whether the privacy interest extends to all or part of the record.

As one can readily appreciate from this non-exhaustive list, determining whether there is any residual expectation of privacy in a document may be a complex and time-consuming exercise that has the potential to significantly delay and detract from the actual proceeding before the court -- the trial of the accused . For that reason, it is my view that in most cases, a more useful starting point for courts in balancing competing interests at the second stage of an O'Connor application will be to assess the true relevancy of the targeted record in the case against the accused.

This approach allows the court to remain focussed on the trial of the accused and, given the competing interests at stake, the relevancy assessment will usually be largely determinative of the production issue... [emphasis added] [ 63 ] The threshold of “likely relevance” in McNeil is stated as being 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” at para 33. [ 64 ] “True relevance” must then involve an inquiry as to whether the information is logically probative to an issue at trial or the competence of a witness to testify. [ 65 ] Finally, in McNeil at para 41 , Charron J. stated that if the claim of likely relevance is borne out by examination of the records (that is, if true relevance is shown), then the accused's right to make full answer and defence will, with few exceptions, tip the balance in favour of allowing the application for production a third party privacy interest is unlikely to defeat an application for production. [ 66 ] Allen P.C.

J.’s thorough consideration of O’Connor and McNeil in R v Letourneau , 2008 ABPC 192 , 447 AR 218 ( #1 ) and R v Letourneau , 2009 ABPC 222 , 471 AR 198 ( #2 ) is very helpful. In Letourneau #2, Allen J. considered the impact of the “true relevancy” inquiry commended by Charron J. for the stage two analysis: 25 Charron J. pointed out that this approach would make the judge's balancing of interests easier. If the inspection of the documents reveals that they are clearly irrelevant, the application can be summarily dismissed (para. 40).

On the other hand, if likely relevance is borne out , then the accused's right to full answer and defence, with few exceptions, tips the balance in favour of allowing the application for production. The existence of third party privacy interests is unlikely to defeat production; such interests can be protected by redactions or conditions to ensure no unnecessary invasion of privacy follows the production (paras. 41, 46).

In effect, the finding of true relevance of the records by the judge in the second stage places the third party in the same category for disclosure purposes as the fruits of the investigation in the hands of the prosecuting Crown (para. 42). The applicant must lay a foundation for the production of the document and the judge should have some regard for the governing rules of evidence and procedure.

The materials need not be admissible on their own, but can be of assistance to the defence nonetheless, for example, for cross-examination purposes (para. 44). (emphasis added) 26 As Professor Paciocco aptly observed in Stinchcombe on Steroids [ The Surprising Legacy of McNeil (2009), 62 CR (6th) 26 ], McNeil gives O'Connor "more muscle" by "bulking up the concept of relevance and the role it plays in the balance against private information, and by diminishing the stature of the reasonable expectation of privacy." [ 67 ] In McNeil , Charron J. recognized that complaints against police officers are not uncommon, and noted the trial efficiency concerns at play in considering the contents of police disciplinary records: 45 Ascertaining the true relevancy of records targeted for production may become particularly important when the information on the production application concerns police disciplinary records.

The contentious nature of police work often leads to public complaints, some legitimate and others spurious. Police disciplinary proceedings may also relate to employment issues or other matters that have no bearing on the case against the accused. The risk in this context is that disclosure, and by extension trial proceedings, may be sidetracked by irrelevant allegations or findings of police misconduct.

Disclosure is intended to assist an accused in making full answer and defence or in prosecuting an appeal, not turn criminal trials into a conglomeration of satellite hearings on collateral matters. [ 68 ] Courts in Alberta have held that mere complaints do not fall within the Stinchcombe disclosure obligation. [ 69 ] In Letourneau #2, there were no misconduct complaints concerning the circumstances surrounding the offences before the Court, so the accused sought information respecting the alleged misconduct of the officers in other instances.

These other complaints about the officers were allegations, as opposed to findings of serious misconduct, and did not fit within the type of allegations outlined in the Ferguson Five nor were they analogous to them. The records sought were not required as part of Stinchcombe disclosure. [ 70 ] In R v Perrault , 2010 ABQB 714 , [2011] 4 WWR 502, Thomas J. concluded that the court below had erred in ordering

disclosure of all official warnings under s. 45 (4) of the Police Act and violations of the Police Act that had been expunged from anofficer’s record pursuant to s. 22 of the Police Service Regulation. [71] In Taing at paras 53-60, Shriar P.C.J. considered the range of public and privacy interests at stake in disclosure applicationsfor police disciplinary records, as well as the Provincial Court response to them, citing R v Mai (1994), (AB CJ), 153AR 173, [1994] AJ 459 (Prov Ct) as an early recognition that the disclosure of statements from internal police disciplinary hearings maygive rise to the potential for misuse and abuse, risks to the expeditious administration of justice, the efficiency of the police investigatoryfunction, police morale and public confidence in fair and effective operation of police internal disciplinary process.

Shriar P.C.J. alsoagreed with comments in R v Yip, 2010 ABPC 292 at para 20, 261 CCC (3d) 112 to the effect that police misconduct complaints maybecome a standard form of manufacturing further disclosure and may have a chilling effect on the disciplinary process.

At the same time,Shriar P.C.J. observed at para 60 that in appropriate cases, courts have ordered disclosure of compelled statements by officers where theyare relevant to the particular case. [72] As for “true relevancy” under O’Connor, it was held prior to McNeil that without more, the mere fact of an investigation intopolice conduct establishes little: R v Luong, 2005 ONCJ 5 at para 28, 63 WCB (2d) 311. [73] Post-McNeil, courts have held that information relating to complaints about police officers that are unfounded orunsubstantiated does not meet the test of true relevance: see for example R v Collins, 2010 ABPC 19 at para 75, 492 AR 199 and casescited therein.

Indeed, there is nothing in McNeil to suggest otherwise. In R v JDC, 2009 ABPC 181, 484 AR 125, Redman P.C.J. stated: 25 The Applicant's position that all complaints relating to allegations of dishonesty, excessive force or abuse of authority are relevant,which have been dismissed, with or without a hearing, is a position I cannot agree with. The mere making of a complaint does not makeit relevant. I accept that McNeil extends or clarifies the obligation of first party disclosure under Stinchcombe as discussed above but itstill recognizes the O'Connor regime for third party production.

If the Supreme Court of Canada wanted to extend the first partydisclosure obligations of the Crown and police to any and all complaints made against the police officers in question, founded,unfounded, withdrawn or otherwise dealt with, they could have done so, but they did not. The Applicant has not persuaded me that thereexists any additional information, let alone, that it may be relevant. 1.

True Relevancy [74] As discussed above, a useful starting point for courts in balancing competing interests at the second stage of an O’Connorapplication will be to assess the true relevancy of the targeted record in the case against the accused. The question is whether the whetherthe information sought is logically probative to an issue at trial or, in this case, the stay application. [75] The alleged police misconduct in this case does not concern the subject matter of the charges against Ms. Addow.

The recordsdo not fall within the Ferguson Five. [76] The RCMP records sought are not police disciplinary records in the usual sense, created as records of proceedings broughtagainst the police officer under the Police Act and the Police Service Regulation. Rather, the records were created as a result of the Engelcomplaint of police misconduct in the omnibus disclosure application that determined Ms. Addow’s right to disclosure of rework recordspertaining to her case. [77] But for this complaint brought by Ms. Addow’s counsel, there would be no such investigation records in existence.

TheRCMP investigation did not result in charges, convictions, disciplinary action, or findings of misconduct. The conduct considered in theRCMP investigation records did not operate to thwart Ms. Addow’s disclosure because there was no re-working of the OccurrenceReports in her case. The Applicant’s case, at its best, is that in a proceeding that determined her right to disclosure, police witnessesmisrepresented their ability to produce the documents requested, though her entitlement to disclosure was not and would not have beenaffected by that misconduct in any event.

Assuming there has been any misrepresentation in the evidence provided about the ability toretrieve rework records in Galenza, there have been no adverse consequences to Ms. Addow’s ability to fully answer and defend thecharges against her. Counsel argues that Ms. Addow has a nexus to the alleged misconduct because she was part of the omnibusdisclosure application. However, I find that Ms.

Addow’s position is really no different than the position of any other accused in Albertaduring the relevant time period who may have sought rework records and later learned that an officer’s report had not been reworked. [78] I have grave concerns that the trial proceedings in this case may be sidetracked by irrelevant allegations. However, I ammindful that a definitive ruling on true relevancy in this particular case arguably overlaps with the ultimate issue to be determined on thestay application based on the residual category of abuse of process.

Therefore, I will consider relevance in relation to the issue raised inthe stay application. [79] Sgt. David Lynass is in-house counsel with the EPS. He has some familiarity with the functions of the EPROS and other dataprograms at IMAC. He was asked to be instructing counsel for Bachelet and any subsequent proceedings involving applications forrework records. He provided a statement to the RCMP concerning the technical operation of the EPROS and information storage andreview by IMAC, as well as his role in the unfolding events around the disclosure applications for re-work records.

There is noinformation in his statement that is logically probative to an issue at trial. His statement is truly relevant to an issue in the stay application– that is, to the issue of misrepresentation by Insp. Macdonald and Mr. Farrell about the ability of EPS to produce and disclosedocuments pertaining to the re-work of Occurrence Reports in Galenza. However, he was acting as in-house counsel during these eventsand related his views concerning the allegations against Insp. MacDonald and Mr. Farrell.

Inspection of this record shows that he wasacting in his capacity as counsel to the EPS during the period in which the allegations of misrepresentation arose and during the RCMPinvestigation. His statement is clothed with solicitor-client privilege and does not fall within the innocence at stake exception. Theapplication for disclosure of his statement is denied. [80] Insp. MacDonald is the EPS officer alleged to have made misrepresentation to the Court in Galenza. He provided a statementconcerning his role in IMAC.

What he has said about the alleged misrepresentation is truly relevant to the grounds upon which the stayapplication is brought. The application for disclosure of this statement must be considered in light of the other relevant factors.

[ 81 ] Rob Esau is a contract employee with EPS Business. He works as an analyst for EPROS project and his statements provide technical information concerning the re-working of Occurrence Reports. The statements are not truly relevant to the underlying charges. There is no information in his statement that is logically probative to an issue at trial or to an issue in the stay application – that is, to the issue of misrepresentation by Insp. Macdonald and Mr. Farrell about the ability of EPS to produce and disclose documents pertaining to the re-work of Occurrence Reports in Galenza .

The technical information he provides in his statement to the RCMP is otherwise available to Ms. Addow should she seek to obtain his evidence concerning the gathering and storage of data by the EPS. Therefore, the application for disclosure of his statement is denied. [ 82 ] The EPS Police Service iReporter Reference Guide, Version 5.0, appears to be a guide to one portion of the EPS data technology, the iReporter application. The iReporter application was developed to search for data stored in the EPROS Niche Record Management System (RMS).

The system allows for viewing Occurrence Reports and creating Court Report Packages. I understand from the introduction to this Guide that the iReporter application provides the EPS with the technological ability to approve, review, re-word and cancel report tasks. [ 83 ] Though not truly relevant to the underlying charges, the iReporter Guide is truly relevant to the stay application. It is logically probative to an issue in the stay application – that is, to the issue of misrepresentation by Insp. Macdonald and Mr.

Farrell about the ability of EPS to produce and disclose documents pertaining to the re-work of Occurrence Reports in Galenza . The Guide will also be of assistance in understanding the system of technology used for EPS data collection and storage. The application for disclosure of this statement will be considered in light of the other relevant factors. 2. Balancing Competing Rights and Interests (

i) Are the RCMP investigation records necessary to make full answer and defence? [ 84 ] The stay application is now underway. Two members of the EPS have been called as witnesses to elaborate upon the historical production of EPS Occurrence Reports and reworking of those reports through the EPROS system under the auspices of IMAC. [ 85 ] As mentioned, the stay application record contains the affidavits of Mr. Farrell and Insp. MacDonald filed at the Galenza hearing, as well as their cross-examination, and the testimony of Insp. MacDonald and Mr. Farrell in Bachelet . Though the statement made by Insp.

MacDonald was given in response to the very allegations that form the grounds of the stay application, two statements by him on the subject of disclosure of these documents already exist and are available for examination or cross-examination. Therefore, I conclude his statement made in the RCMP investigation is not necessary to Ms. Addow’s ability to make full answer and defence. [ 86 ] The stay application stands or falls on the ability of counsel to establish that Insp. MacDonald and Mr.

Ferrell misled the Court or made misrepresentations in an effort to prevent accused persons from access to records on police files concerning the investigation of their charges. A full understanding of the EPROS system is necessary to advance the stay application and in that sense, disclosure of the iReporter Guide is necessary for Ms. Addow to make full answer and defence. (ii) Do the records in question have probative value? [ 87 ] It goes without saying that the MacDonald statement provides evidence at odds with that given in Galenza concerning access to rework records. Ms.

Haymond’s letter of October 3, 2014 to Allen P.C.J. makes clear the discrepancy between the evidence provided in that proceeding and information of which she subsequently became aware. However, the MacDonald statement is not probative of the allegation that the Galenza witnesses misled the Court or made material misrepresentations when they gave evidence at the disclosure hearing in an effort to subvert the ability of accused to obtain disclosure of rework records.

In Batte , Doherty J.A. for the Court commented on probative value in relation to prior statements: 77 It will not ... suffice to demonstrate no more than that the record contained a statement referable to a subject matter which would be relevant to the complainant's credibility. The mere fact that a witness has said something in the past about a subject matter on which the witness may properly be cross-examined at trial does not give that prior statement any relevance. It gains relevance only if it is admissible in its own right or has some impeachment value.

In my view, the mere fact that a complainant said something about a matter which could be the subject of cross-examination at trial, does not raise a reasonable possibility that the complainant's statement will have some probative value in the assessment of her credibility. [ 88 ] I conclude that there is no information in Insp. MacDonald’s statement that is logically probative to an issue at trial or to an issue in the stay application. [ 89 ] The iReporter Guide could provide proof concerning the functionality of the EPS data collection and control system that has not been shown to be available to Ms.

Addow by any other means. The iReporter Guide is logically probative to an issue in the stay application – that is, whether there was misrepresentation by Insp. MacDonald and Mr. Ferrall as alleged. (iii) What is the nature and extent of the reasonable expectation of privacy vested in the record? [ 90 ] There is a significant privacy interest in Insp. MacDonald’s statement to the RCMP. Charges have been advanced against him through the Engels complaint. His reputation was put in question. He has had to defend himself against those charges.

Nothing came of the charges: they have never risen above the status of mere allegations of wrongdoing. The records of the RCMP investigation pertain to a complaint about him and an investigation of his conduct. There are significant privacy interests in his account of the conduct that is alleged – misleading the Court and misrepresenting facts to the Court. It is a compelled statement ( Police Act , s 10.5 ff). [ 91 ] The policy reasons to deny disclosure of statements from internal police disciplinary proceedings are considered in the cases reviewed above, notably Mai .

The RCMP investigation could result in proceedings under federal or provincial statute ( Police Act , s. 46.1

(4)(a)) or under the regulations governing the discipline or performance of duty of police officers ( Police Act , s. 46.1 (4) (b)). Therefore, the Engel complaint could have resulted in Inspector MacDonald’s prosecution for criminal, regulatory, or police disciplinary offences, though no further steps were taken. [ 92 ] Counsel for the Applicant relied on Carlson , in which the Court of Appeal held that the complainant’s lawyer (Mr.

Engel) was no longer subject to his implied quasi-undertaking of confidentiality once the LERB proceedings had been concluded, and he could use material from the Chief ’s evidentiary record to support his own independent complaint.

The Court concluded that an analysis of the nature of such a record supported the conclusion that in the absence of a publication ban, or sealing order, it became publicly available at the conclusion of the Board appeal hearing because it was more akin to a publicly available transcript of the evidence heard at trial, or exhibits entered at trial, than to pre-trial disclosure. [ 93 ] I do not read that decision as being necessarily determinative of the issue of the reasonable expectation of privacy in balancing competing interests under O’Connor .

In this context, the Court may take into account the officer’s reputational interest as a factor to be considered in light of the policy concerns outlined in McNeil . Specifically, there is a real concern about the potential for the lodging of tenuous complaints in order to have statements created for disclosure, and the effect on the expeditious administration of justice of resulting “satellite” hearings, all of which affect an officer’s reputational interests and the integrity of the administration of justice.

There are also legitimate concerns about the efficiency of the RCMP investigatory function, officer morale and public confidence in fair and effective operation of the investigation process regarding police misconduct by an external police agency. (iv) Conclusion [ 94 ] All of these considerations must be balanced. [ 95 ] The statement of Insp. MacDonald is of no relevance to Ms. Addow’s underlying charges. It is of marginal relevance to proving the allegations in the stay application. The information can be obtained by calling Insp.

MacDonald to testify and there are two other prior statements available for cross-examination so that there is no impediment to exploring Insp. MacDonald’s knowledge and understanding as part of full answer and defence in the stay application if it is not disclosed. [ 96 ] The MacDonald statement is not probative of the allegation that the Galenza witnesses misled the Court or made material misrepresentations in an effort to subvert the ability of accused to obtain disclosure of rework records. [ 97 ] Insp.

MacDonald’s privacy and reputational interests are engaged, as are the broader policy concerns as listed above. The RCMP did not recommend further steps against Insp. MacDonald, and none have been taken in respect of the Engel complaint. [ 98 ] In balancing the various interests at stake, I also consider that the RCMP investigation records were created in response to the Engel complaint of EPS officer misconduct. The alleged police misconduct under investigation is not linked in any way to the investigation of the charges before the Court.

Even if there was misconduct at the Galenza hearing, there were no records on Ms. Addow’s EPS file that were withheld as the Occurrence Report in her case had not been re-worked. [ 99 ] Balancing all the competing rights and interests, I dismiss the claim for disclosure of Insp. MacDonald’s statement. [ 100 ] As to the iReporter Guide, I have found that it is truly relevant, it is necessary to make full answer and defence by advancement of the stay application, it is logically probative of an issue in the stay application – that is, whether there was misrepresentation by Insp. MacDonald and Mr.

Ferrall for the purposes alleged, and counsel for the EPS has not advanced an argument as to any privacy interests affected if the iReporter Guide is disclosed. VII. Conclusion [ 101 ] I conclude that Ms. Addow is not entitled to the RCMP investigation records comprised of the statements by Sgt. Lynass, Insp. MacDonald and Mr. Esau. However, in my view, the iReporter Guide is relevant to the issues in the stay application, necessary to make full answer and defence of the substantive charges by advancement of the stay application, and potentially probative of issues on the stay application.

Further, disclosure of the iReporter Guide has not been shown to raise any privacy concerns. Heard on the 19 th day of April, 2016. Dated at the City of Edmonton, Alberta this 2 nd day of June, 2016. S.J. Greckol J.C.Q.B.A.

Appearances: Neil Wiberg Adam Badari for the Crown Tom Engel Engel Law Office for the Applicant Cameron G. Regehr Department of Justice for the Respondent Attorney General of Canada Katrina Haymond and Michael Wall Field Law for the Respondent Edmonton Police Service and the Chief of Police, Edmonton Police Service Tamara Friesen Nugent Law Office For the Police Association