R v Nguyen, 2017 ABQB 783

Court of Queen’s Bench of Alberta Citation: R v Nguyen, 2017 ABQB 783 Date: 20171222 Docket: 131297426Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Trong Minh Nguyen and Henry Le Nguyen and Bryan James Balla Accused Corrected judgment: A corrigendum was issued on January 31, 2018; the corrections have been made to the text and the corrigendum is appended to this judgment. Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5. By prior Court Order, information that may identify AB may not be published, broadcast, or transmitted in any manner. There is also a ban on publishing the contents of the application for the publication ban or the evidence, information or submissions at the hearing of the application. By Court Order set out in paragraph 20 of these Reasons, information that may identify CD, a reporter, and the Media Outlet referred to in these Reasons may not be published, broadcast, or transmitted in any manner. _______________________________________________________ Memorandum of Decision of the

Honourable Madam Justice E.A. Hughes _______________________________________________________ Introduction [1] The three accused, Trong Minh Nguyen, Henry Le Nguyen and Bryan James Balla, are charged with conspiracy to committhe murder of Vinh Tung Troung. Trong Nguyen is also charged with counselling AB to commit the murder of Vinh Tung Troung. [2] An application for production of Third Party Records was heard and determined in 2015. Subsequently, three furtherapplications for production of records were heard in November 2016 in the midst of intermittent trial dates.

The three furtherapplications were ruled on, with reasons to follow. These are those reasons. Background Facts [3] The offences are alleged to have taken place between September and December 2012, and were committed in the context ofa “gang war” between two groups: Fresh off the Boat (FOB) and Fresh off the Boat Killers (FK). The position of the Crown is that thethree accused were all members of FOB and Vinh Tung Troung was a FK member. [4] AB is the key Crown witness in the prosecution. AB is a former member of FOB and is an admitted drug trafficker andmurderer.

AB’s identity is protected by a prior court order and cannot be published. [5] AB began to cooperate with the police in 2010. He subsequently provided statements to the police respecting his formerassociates, was granted immunity in 2011 from prosecution for his participation in three murders, and became a police agent in 2012. [6] As an agent, almost all AB’s conversations with the accused were recorded. [7] Both the Crown and the Defence describe AB as a “Vetrovec” witness whose credibility will be a key issue in this trial. Iagree.

Procedural History [8] The three accused made their first appearance in Court of Queen’s Bench on April 25, 2014. Approximately two monthslater, a three week trial date was scheduled to commence September 8, 2015. [9] After three pre-trial conferences and approximately four months before the scheduled trial date, the accused filed anapplication for production of Third Party Records respecting AB. The application was amended one month later. Other pre-trialconferences were held after the filing of the Third Party Records application.

On June 30, 2015 counsel were directed that the ThirdParty Records application would proceed on September 10, 2015. [10] The application commenced September 11, 2015 pursuant to the procedure set out in R v O’Connor, (SCC),[1995] 4 SCR 411 and R v McNeil, 2009 SCC 3. [11] The accused established the first stage of the production test in O’Connor and McNeil that the records were likely relevant tothe proceeding against the accused. After that, the records were provided to me. I then began to review the documents, which were fromsix different record holders totaling over 4000 ps.

Some of these records were AB’s medical records.

Subsequently, production wasordered: R v Nguyen, 2015 ABQB 733. [12] The trial proper did not proceed in September 2015 as a result of a number of events: the late filing of the 2015 Third PartyRecords application, Trong Nguyen’s discharge of his counsel on September 10, 2015, and the shooting of Henry Nguyen while he wason his way to court on September 21, 2015 that resulted in his hospitalization. [13] Since that date, all counsel have worked diligently to find the necessary time to conclude the trial. [14] By the end of September 2015, a decision was made by counsel and the Court to hear the trial over a number of dates ratherthan one continuous period of trial time, as this would ensure the matter could be heard as quickly as possible.

All counsel, to their credit,were agreeable to this, understanding that a trial which commences and continues until it is finished is preferable to one set forcontinuation over a number of dates. However, this latter approach has meant earlier dates were available because all counsel were ableto find the necessary time. [15] This

schedule has meant other applications and the trial itself proceeded on the following dates since September 2015: -December 17, 18, 2015; -April 13- 18, 2016; and -December 5-16, 2016. [16] Numerous other appearances were made to ensure this matter was “on track”.

[17] On November 10, 2016, the Crown provided the Defence with the notes of police officers who had contact with AB since thelast disclosure was made on January 18, 2016. Additional disclosure was made November 16, November 17, and November 23, 2016. [18] This disclosure resulted in the accused filing two further disclosure applications on November 29, 2016: 1. An application for First Party Disclosure; 2. A second application for production of Third Party Records of AB.

The named record holders were Alberta Justice and SolicitorGeneral, the Calgary Police Service (CPS), Alberta Health Services, “the Hospital” and “the Life Coach”. An amended application forproduction of Third Party Records was filed by the accused on December 8, 2016; and 3. Also on December 8, 2016, an application for production of Third Party Records was filed, the third party record holder being amedia outlet. [19] In response to the applications, the Crown filed an affidavit of Lana Neher, a paralegal in the Crown office.

This affidavitincluded all the additional disclosure provided by the Crown to the Defence in November 2016. [20] At the hearing, the Crown requested a publication ban in relation to the reporter and the media outlet for which production ofThird Party Records was sought under item 3. above. No counsel objected, and I ordered there would be no publication of the identity ofthe reporter or the media outlet, or of information that could identify them. [21] I ruled on each of these applications and advised counsel I would issue one judgment respecting all three applications. Myreasons follow. Analysis 1.

First Party Disclosure Application [22] The First Party Disclosure application filed by the accused made 21 requests for additional disclosure. [23] The Crown’s obligation to make disclosure to an accused is set out in R v Stinchcombe, (SCC), [1991] 3 SCR326.

As observed in McNeil at para 17: The Crown’s obligation to disclose all relevant information in its possession relating to the investigation against an accused is wellestablished. [24] This obligation is not absolute, in that the Crown need not produce information that is “clearly irrelevant”, privileged or isotherwise not disclosable at law: Stinchcombe at para 20; McNeil at para 18. [25] “Relevant information” is also called “the fruits of investigation”: R v Jackson, 2015 ONCA 832, leave to appeal to SCCrefused, 36829 (June 30, 2016).

In Jackson, Watt JA, writing for the court, explained the term “fruits of the investigation” at paras 92and 93: Turning first to the nature of the information. The descriptive “fruits of the investigation” accurately captures the subject-matter of firstparty/Stinchcombe disclosure. The term embraces relevant, non-privileged information related to the matters the Crown intends to adducein evidence against an accused, as well as any information in respect of which there is a reasonable possibility that it may assist anaccused in the exercise of the right to make full answer and defence.

The information may relate to the unfolding of the narrative ofmaterial events, to the credibility of witnesses or the reliability of evidence that may form part of the case to meet. In its normal, natural everyday sense the phrase “fruits of the investigation” posits a relationship between the subject-matter sought andthe investigation that leads to the charges against an accused. It refers to information acquired by means and in consequence of thatinvestigation.

The information includes, but is not co-extensive with, evidence, much less admissible evidence. [26] Jackson also spoke to the concept of relevance at paras 119-123: The terms “relevant” and “relevance” are old friends of the law of evidence. Familiar faces. Constant companions. We know them wellenough to say several things about them without being critical in any way. Relevance is not a legal concept. It is a matter of everyday experience and common sense. It is not an inherent characteristic of any itemof evidence. Some have it. Others lack it. Relevance is relative.

It posits a relationship between an item of evidence and the proposition of fact the proponent of the evidence seeksto prove (or disprove) by its introduction. There is no relevance in the air: R. v. Luciano, [2011] O.J. No 399, 2011 ONCA 89, 267C.C.C. (3d) 16, at paras. 204-205. Relevance is also contextual. It is assessed in the context of the entire case and the positions of counsel.

Relevance demands adetermination of whether, as a matter of human [page 184] experience and logic, the existence of a particular fact, directly or indirectly,makes the existence or non-existence of another fact more probable than it would be otherwise: R. v. Cloutier, (SCC),[1979] 2 S.C.R. 709, [1979] S.C.J. No. 67, at p. 731 S.C.R. The law of evidence knows no degrees of relevance, despite the frequent appearance of descriptives like “minimally, marginally ordoubtfully”, “tangentially” and “highly” that tag along for the ride from time to time.

[27] The Jackson analysis that there is only “one level of relevance” has been accepted by the majority of the Court of Appeal in Rv Vallentgoed, 2016 ABCA 358 at para 63, leave to appeal to SCC allowed, 37403 (May 4, 2017), and the Court in R v Barton, 2017ABCA 216 at para 146, n 64, leave to appeal to SCC requested. [28] The Court in Vallentgoed further elaborated on relevance and remoteness at para 64: But while there may be no legal gradations of “relevant” there certainly are various degrees of probative value. Relevance, thus, is amatter of degree – there is an issue of remoteness.

The more distant in time and effect that the disputed piece of disclosure is from theultimate issue, the less probative value it will have. The more remote the evidence from the issue, the weaker the “relationship betweenthe item of evidence and the proposition of fact the proponent of the evidence seeks to prove”.

The more distant the connection, the lesslikely it is that “as a matter of human experience and logic, the existence of a particular fact, directly or indirectly, makes the existence ornon-existence of another fact more probable than it would be otherwise”. [29] However, we know that disclosure of relevant information as it pertains to the credibility and reliability of a witness in a casemay well be broader than the “fruits of the investigation”.

For example, the Supreme Court said, in McNeil at para 50: The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliabilityof the witnesses in a case. As the amicus curiae rightly states, “[t]he Crown and the defence are not adverse in interest in discovering theexistence of an unreliable or unethical police officer” (factum, at para. 62). Doherty J.A. made the point forcefully in R. v. Ahluwalia(2000), (ON CA), 138 O.A.C. 154 (Ont.

C.A.), commenting on the Crown’s failure to inquire further whenconfronted with the perjury of its own witness as follows (at paras. 71-72): For reasons not shared with this court, the Crown does not appear to have regarded itself as under any obligation to get to the bottom ofthis matter. ... The Crown has obligations to the administration of justice that do not burden other litigants.

Faced with its own witness’s perjury and thefact that the perjured evidence coincided with the incomplete disclosure that the Crown says it innocently passed to the defence, theCrown was obliged to take all reasonable steps to find out what had happened and to share the results of those inquiries with the defence.In my view, the Crown did not fulfill its obligations to the administration of justice by acknowledging the incomplete disclosurediscovered by the defence, and after making limited inquiries, professing neither a responsibility for the incomplete disclosure nor anability to provide any explanation for it.

The Crown owed both the appellant and the court a fuller explanation than it chose to provide. [30] Stinchcombe also speaks to the form of disclosure in the context of witness statements. The Court held that if the statement ofa witness is in the possession of the Crown, it should be produced. However, the Court went on to state at para 30: ... In some cases the statement will simply be recorded in notes taken by an investigator, usually a police officer. The notes or copiesshould be produced.

If notes do not exist then a “will say” statement, summarizing the anticipated evidence of the witness, should beproduced based on the information in the Crown’s possession. ... [31] As set out in these authorities, additional context is required about the November 2016 disclosure provided by the Crown tocounsel for the accused. Additional facts follow. [32] When AB began to act as police agent he was on parole for a federal sentence imposed in June 2009. In January 2013, AB wasrecommitted to prison because he violated conditions of his parole.

When he was released again in August 2013, he was taken by theCPS to a safe house as he had entered into the Witness Security Program in June 2013. When AB reached his warrant expiry date inJanuary 2014, he was relocated and given a new identity. AB left the Witness Security Program in September 2014. [33] AB advised Detective Young in an affidavit dated August 28, 2015 that: i. He has been involved in organized crime since high school. ii. He is well known to the three accused and many of their associates. iii. He is breaking a code of silence by assisting the police and testifying in Court.

AB believes that in breakingthe code, he will be sanctioned with violence by his former group, the FOB. [34] Detective Young stated in an affidavit at para 35: I understand in speaking with Det. Christie that AB will be testifying about his own role in the planning of the conspiracy to murderTruong. Detective Christie advises Truong was an FK member who one of the accused had attempted to murder in the past. This was tobe another attempt to murder Truong.

I believe that those associated to the FK may seek revenge against AB thus putting him at riskfrom both the FOB and FK and their associated criminal affiliations. [35] Although AB left the witness protection program in September 2014, AB has had ongoing communication with members ofthe Intelligence Support Unit [ISU] of the CPS. It appears this unit is responsible for the witness management of AB. [36] From a review of Ms. Neher’s affidavit, which includes the notes provided to counsel for the accused in November 2016, itappears members of the ISU were assigned the “witness phone” for periods of time.

This phone was the phone AB would use to call ortext members of the ISU. During each officer’s time with the witness phone, which was approximately a one week block, the officercould speak and/or text with AB on this phone unless AB was in Calgary under the protection of the CPS. Some weeks, there was nocommunication between AB and members of the ISU. [37] The various topics of conversation and texts between AB and the members of the ISU include:

-AB’s living arrangements, employment, schooling and health issues; -Whether he was in danger, and advice given by ISU respecting AB’s safety; -AB’s wish to get out of the immunity agreement, not wanting to testify and hoping to return to jail; and -The strains on AB’s life since becoming a Crown witness. [ 38 ] The notes of the ISU members are: 1. Summaries of conversations with AB; 2.

Summaries of text messages from and to AB, such as this example from Constable Bengoechea’s notes dated September 6, 2016: ... in response to text message from witness indicating he was done with his current temporary living arrangement and coming to Calgary, I contact witness by phone. ... 1. Recorded text conversations between AB and a member of ISU. For example, the notes of Constable Kozlik dated March 21, 2016 state: I receive the following text message from the witness: Hello, I don’t know who has this phone but I want out of this deal.

I will testify but I want to go to jail for the one murder that I got this deal for. And if nothing will be done about what I want soon I will go on a rampage. [ 39 ] During counsel submissions, counsel provided further information about how the witness phone was utilized. Ms. Roulston advised it was their understanding that the phone does exist, but that because it is a pay-as-you-go phone, it is not possible to take screen shots of text messages. It is possible, however, to have the phone forensically analyzed. Mr. Johnston advised that a witness handling team, or ISU, has a phone.

The witness has 912 programmed into his speed dial, and can dial that one number and the ISU will receive calls from it. He referred to an example in Constable Kozlik’s notes, where he says he received a witness management phone from Constable Harms. Mr. Johnston noted that the police have one phone and they are passing it around. He also referred to it as a pay-as- you-go phone, and confirmed his understanding that there is a limitation in that it is not possible to take screen shots of text messages. Mr.

Johnston confirmed that they are then left with a forensic analysis of the phone, which is not realistic from the Crown’s perspective. Forensic analysis of phones take a long time because there is a queue for analysis that includes ongoing homicide investigations. [ 40 ] During the submissions of counsel regarding the First Party Disclosure application, the following information was revealed: 1. Bullets 6, 7, 10 and 11 in the Notice of Application were subsequently identified by the accused to be the proper subject of a Third Party Records application. 2.

Bullets 8 and 12 to 20 were identified as having been provided in the past and therefore, not the subject of the application. 3. Bullet 9 was answered by the Crown in court as “the Calgary Police Service”. 4. Bullet 21 was answered by the Crown as “the redacted records were made on the basis of privilege and relevancy”.

No further submissions were made by Defence. [ 41 ] The remainder of the First Party Disclosure requests – Bullets 1 to 5 – are requests for the screen shots of text messages between AB and various members of the ISU between March and October 2016. [ 42 ] The accused’s requests are based upon the notes provided by the various police officers summarizing or setting out what appears to be the complete text between each officer and AB. [ 43 ] Counsel for one of the accused expressed some concerns with respect to the authenticity of the text messages, as they only receive a relay from Constable Kozlik and what he has decided to tell the accused.

He asks for a screen shot without information that would allow AB to be located. [ 44 ] The Crown acknowledges its continuing disclosure obligation and submits that the notes provided in November 2016 demonstrate it has met this obligation. [ 45 ] The requests for screen shots are disclosure requests regarding the form of disclosure. [ 46 ] Stinchcombe made it clear that a witness statement may be produced in a number of different forms. AB’s texts were recorded in the notes of the police officers and have been disclosed.

I find this form of disclosure meets the requirements of Stinchcombe . [ 47 ] It should also be noted that the texts in question were made approximately 3 to 4 years after the alleged offence. No text was about the offence itself.

Given the passage of time and the thousands of pages of disclosure that deal exclusively with AB, the relevance of these texts is close to the clearly irrelevant end of the spectrum, but not quite. [ 48 ] During counsels’ submissions, I inquired as to the availability of the screen shots of the texts between AB and Constable Kozlik set out above, and between AB and Constable McAdams on October 24 and 25, 2016. These dates were arbitrarily selected. [ 49 ] The Crown was able to obtain screen shots of those texts, and they were provided to me.

I found that each set of notes that had already been disclosed recorded verbatim the text message between the police officer and AB.

[ 50 ] For example, on October 25, 2016, Constable McAdam recorded in his notes at 5:32 p.m.: I received the following texts from the witness Oh another thing you can tell Shane is that I am gald [ sic ] I didn’t give you guys all my information on murders lol but you will read about it soon lol [ 51 ] The screen shot of this text read as follows: Oh another thing you can tell Shane is that I am gald [ sic ] I didn’t give you guys all my information on murders lol but you will read about it soon lol [ 52 ] I ordered the production of these screen shots as both were available. 2. Third Party Records Applications

a) Media Outlet Application [ 53 ] The three accused seek production of an interview given by AB to CD, a reporter with Media Outlet. This material is not in the possession of the Crown and its production is therefore governed by O’Connor . [ 54 ] O’Connor established a two-part test for an applicant/accused who seeks production of any materials in the hands of a third party. The Supreme Court of Canada in McNeil summarized the procedure to be followed in an O’Connor application, at para 27: Stated briefly, the procedure to be followed on an O’Connor application is the following: 1.

The accused first obtains a subpoena duces tecum under ss. 698(1) and 700(1) of the Criminal Code and serves it on the third party record holder. The subpoena compels the person to whom it is directed to attend court with the targeted records or materials. 2. The accused also brings an application, supported by appropriate affidavit evidence, showing that the records sought are likely to be relevant in his or her trial.

Notice of the application is given to the prosecuting Crown, the person who is the subject of the records and any other person who may have a privacy interest in the records targeted for production. 3. The O’Connor application is brought before the judge seized with the trial, although it may be heard before the trial commences. If production is unopposed, of course, the application for production becomes moot and there is no need for a hearing. 4.

If the record holder or some other interested person advances a well-founded claim that the targeted documents are privileged, in all but the rarest cases where the accused’s innocence is at stake, the existence of privilege will effectively bar the accused’s application for production of the targeted documents, regardless of their relevance. Issues of privilege are therefore best resolved at the outset of the O’Connor process. 5. Where privilege is not in question, the judge determines whether production should be compelled in accordance with the two-stage test established in O’Connor .

At the first stage, if satisfied that the record is likely relevant to the proceeding against the accused, the judge may order production of the record for the court’s inspection.

At the next stage, with the records in hand, the judge determines whether, and to what extent, production should be ordered to the accused. [ 55 ] Media Outlet opposes the production of the interview on two bases: first, submitting the interview is protected by journalist- source privilege; and, second, that the applicants have not met the “likely relevant” standard required in the first stage of the O’Connor test. [ 56 ] The Crown also opposes the production of the interview on the basis that the applicants have not met the “likely relevant” standard in the first stage of the O’Connor test. [ 57 ] The evidence filed in support of the application is the affidavit of Henry Nguyen sworn December 8, 2016, together with his testimony. [ 58 ] Mr.

Nguyen testified that his information respecting this application came from his counsel. Mr. Nguyen has no personal knowledge of the contents of the affidavit, which states in part: 1. On December 6 th 2016, ... my lawyers Tonii Roulston and Andrea Urquhart advised me of the following: A. Between the dates of November 10-29, 2016, my Counsel received additional disclosure from the Crown Prosecutor’s office. The additional disclosure consisted of notes of various police officers as well as two memorandums from Crown Prosecutor Brian Holtby Q.C. B.

In the disclosure there were a few references to [AB] having recently given interviews to the media. On December 5, 2016 my counsel was able to confirm that the only reporter that [AB] gave interviews with was [CD] of [Media Outlet]. C. I understand that [AB] gave an interview with [CD] sometime between September-November 2016. I understand that these interviews were video recorded. I understand that in the interviews [AB] talked about his ongoing mental health issues and the struggles he is having to effectively manage them. [ 59 ] Mr. Nguyen testified in cross examination that his lawyer told him:

1. She had a meeting with [CD] and [CD’s] attorney was there; 2. He understood there was one interview that was in 3 parts; 3. The following information, as set out in the transcript of his cross examination: MR. JOHNSTON: Q What you were told was the video was about him talking about his ongoing mental health issues and struggles he is having to effectively manage them; is that correct? A Yes. Q I think you added when you were just -- what I’ll call your direct examination, you added to that. You said and not getting help he needs. I think you said something to that effect. Not in your affidavit, but when Ms.

Urquhart was asking you questions. A Yes. Q Do you remember that? So there was a little bit more. Maybe it was, I need some help with things. A Yes. [ 60 ] Mr. Nguyen also testified he has no knowledge whether AB spoke about the case with [CD]. [ 61 ] Mr. Dear, counsel for [CD] and [Media Outlet], who was the lawyer Mr. Nguyen referred to in his testimony, advised the Court: 1. The interview was October 31, 2016; 2.

On November 1, 2016 the Calgary Police Service issued a “duty to warn” to [Media Outlet] and [CD]: In any event, what we’re dealing with here is, of course, the discussion of an interview with [AB], and when the police became aware that this interview took place, a police officer contacted the news director at [Media Outlet] and issued what they described as a duty to warn. This was on November 1, 2016.

The information that was provided that there are huge risks for safety for [Media Outlet] and the reporter. [AB] is the number one target for retaliation and that the people targeting [AB] would stop at nothing, and those were the words uttered by the officer or the -- whoever the member 3. How the meeting between counsel for [Media Outlet] and counsel for the accused came about: So perhaps the first thing you might be asking is why [CD] and I met with the defence, and you’ve heard some evidence of that and some reference to that.

Well, as one of my friends on the other side of the room said, what occurred is we tried to resolve this and, in fact, [CD] and I went to the defence team and said something to the effect of, this interview really has nothing to do with this trial at all. It has to do with witness protection issues, and, of course, it -- I must have been naive.

It didn’t dawn on me that we would be arguing about these issues, but, in any event, that’s where that -- that’s where all of this came from was we tried to resolve it by convincing my friends, the defendants, that this didn’t have anything to do with these three individual gentlemen and conspiracy to commit murder, if in fact that’s the charge. I’m not sure I even know that. So that’s what occurred.

We had a few second discussion, maybe a couple minutes discussion, down in the hallway, down on the end of the floor. [ 62 ] McNeil suggests the first step in a Third Party Records application where a privilege is being asserted is to resolve the privilege issue. I therefore turn to the journalist-source privilege asserted by [CD] and [Media Outlet].

Journalist-Source Privilege [ 63 ] In 2010, the Supreme Court of Canada released two decisions that established journalist- source privilege as a case-by-case common law privilege: R v National Post , 2010 SCC 16 and Globe and Mail v Canada (Attorney General) , 2010 SCC 41 .

These decisions state that there is no blanket or “class” privilege afforded to journalists, and that the privilege must be established on a case-by- case basis. [ 64 ] The journalist-source privilege can protect the identity of a journalist’s source and the contents of communications with journalists: National Post at para 56 ; Kwok v Natural Sciences and Engineering Research Counsel of Canada , 2013 ABQB 395 at para 161 , aff’d 2013 ABCA 431 .

The privilege may also protect a journalist from being compelled to testify and may be claimed in defence against the issuance or execution of a search warrant: National Post at para 52 . Even if the source’s identity is known, privilege may remain over the contents of the communications: Kwok (QB) at para 161. [ 65 ] In National Post , the Court held that the test for establishing journalist-source privilege is the four-part Wigmore test, set out at para 53: 1. The communication must originate in a confidence that the identity of the informant will not be disclosed; 2.

The confidence must be essential to the relationship in which the communication arises; 3. The relationship must be one which should be sedulously fostered in the public good; and

4. Whether, in the instant case, the public interest served by protecting the identity of the informant from disclosure outweighsthe public interest in getting at the truth. [66] In The Law of Privilege in Canada, the authors suggest that an affidavit from a journalist confirming the first and secondcriteria of the Wigmore test are met is likely a sufficient evidentiary base for finding these criteria are met: Robert W Hubbard, SusanMagotiaux and Suzanne M Duncan, The Law of Privilege in Canada, loose-leaf, (Aurora, Ont: Canada Law Book, 2014) at 13-18. In thiscase, no evidence was tendered by CD or Media Outlet.

Thus, I find there is no evidentiary basis upon which I may assess this privilegeand Media Outlet’s first argument fails. I now consider it second argument, also advanced by the Crown, that the applicants have notsatisfied the first stage of the O’Connor test.

The First Stage of the O’Connor Test [67] At the first stage of an O’Connor application, the accused bears the onus of establishing the materials sought are “likelyrelevant”. “Likely relevance” is a higher threshold of relevance than that in the context of Crown disclosure pursuant to Stinchcombe,and was defined by the court in O’Connor, at para 22: In the disclosure context, the meaning of “relevance” is expressed in terms of whether the information may be useful to the defence (seeEgger, supra, at p. 467, and Chaplin, supra, at p. 740).

In the context of production, the test of relevance should be higher: the presidingjudge must be satisfied that there is a reasonable possibility that the information is logically probative to an issue at trial or thecompetence of a witness to testify. When we speak of relevance to “an issue at trial”, we are referring not only to evidence that may beprobative to the material issues in the case (i.e. the unfolding of events) but also to evidence relating to the credibility of witnesses and tothe reliability of other evidence in the case. See R. v. R. (L.) (1995), (ON CA), 39 C.R. (4th) 390 (Ont.

C.A.), at p.398. [68] The “likely relevance” standard imposes “a significant burden” but not an “onerous burden” upon the applicant: O’Connor atpara 24; McNeil at para 29.

The rationale for this burden was “to prevent the defence from engaging in ‘speculative, fanciful, disruptive,unmeritorious, obstructive and time-consuming’ requests for production”: O’Connor at para 24; McNeil at para 29. [69] The accused submit the interview is likely relevant as defined by O’Connor for the reasons explained in the Affidavit ofHenry Nguyen sworn December 8, 2016: ...The apparent comments made by [AB] regarding his mental health issues are probative of fundamental issues at my trial.

Specificallyhis own comments, regarding his mental health, are probative with respect to the issue of his credibility, his character, his reliability andhis ability to recall. I understand that video recorded statements of [AB], speaking about his mental health issues, is information that hasnot previously been available to my counsel. [70] It is clear from the affidavit of Mr. Nguyen and the submissions of Mr. Dear that the Media Outlet interview is not probativeof the allegations before the Court respecting “the unfolding of events”.

Further, having observed AB testify in direct examination priorto this application, the interview could not be probative of his competence to testify as there was nothing before me to suggest any issuewith respect to AB’s competence. Rather, counsel for the accused submit the interview is logically probative of the credibility andreliability of AB. [71] Mr. Nguyen’s affidavit is based upon information and belief. This and the submissions before me indicate that CD spoke toMr. Dear about the interview, Mr.

Dear then spoke to defence counsel for the accused, and defence counsel for Henry Nguyen passedthis information on to their client. Mr. Nguyen’s belief is at least third hand hearsay. As such, its reliability is highly questionable. [72] Even if I was to find the assertions in the affidavit to be reliable, there is no evidence before me to suggest that because anindividual has a mental health issue or issues, the unnamed mental health issue or issues is probative of the credibility and reliability ofthe individual. [73] This is the type of bare assertion that the statutory

section enacted in the Criminal Code, RSC 1985, c C-46 after O’Connorstates is not sufficient to establish a record is “likely relevant”. The specific

section provides: 278.3

(4) Insufficient grounds Any one or more of the following assertions by the accused are not sufficient on their own to establish that the record is likely relevant toan issue at trial or to the competence of a witness to testify: (

a) that the record exists; (

b) that the record relates to medical or psychiatric treatment, therapy or counselling that the complainant or witness has received or isreceiving; ... (

d) that the record may disclose a prior inconsistent statement of the complainant or witness; (

e) that the record may relate to the credibility of the complainant or witness; (

f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witnesshas received or is receiving psychiatric treatment, therapy or counselling; ...

[74] I acknowledge this

section does not guide my decision, but it is informative. [75] The Supreme Court of Canada in O’Connor and its companion case, A(LL) v B(A), (SCC), [1995] 4 SCR 536,said that a party applying for production of third party records cannot rely upon stereotypical reasoning related to mental health. Anapplicant must have an evidentiary basis to support its claim. For example, Justice L’Heureux-Dube stated as follows at para 143 ofO’Connor: Similarly, the mere fact that a witness has a medical or psychiatric record cannot be taken as indicative of the potential unreliability ofhis or her testimony.

Any suggestion that a particular treatment, therapy, illness, or disability implies unreliability must be informed bycogent evidence, rather than stereotype, myth or prejudice. For these reasons, it would also be inappropriate for judicial notice to betaken of the fact that unreliability may be inferred from any particular course of treatment. See R. v K. (V.) (BC CA), 1991, 4 C.R. (4th) 338 at 350-51 (B.C.

C.A.). [76] In A (LL), Justice L’Heureux-Dube again stated, at para 104: Moreover, as set out in O’Connor, in determining the likely relevance of the private records, the trial judge cannot rely upon illegitimatepurposes or discriminatory and stereotypical reasoning.

For instance, an application based on credibility “at large”, based on unsupportedassertions of “recent complaint”’ or of “allegations of sexual abuse by other people”, or based on the mere fact that a witness has a pastpsychiatric history or that he or she received counselling after a sexual assault are all insufficient grounds to meet the threshold of likelyrelevance.

In the case at hand, the respondent argued that “the records have to be reviewed to determine if there is any information inthere which would be relevant to the trial, credibility of the complainant, [and] how the information was extracted prior to them going tothe police”.

These grounds do not meet the test for an application for production of private records held by third parties (see O’Connor).This should have been amply sufficient either to dismiss the respondent’s application for production or to allow the Crown’s applicationto quash the subpoena duces tecum. [77] Further, defence counsel have in their possession information, set out below, of a diagnosis respecting AB.

They haveprovided no evidence to suggest this diagnosis has any bearing on AB’s credibility or reliability. [78] I acknowledge that evidence of a particular psychiatric issue may well demonstrate that a witness’s credibility or reliabilityhas been or is impacted. However, there is not a scintilla of evidence before me to make any such finding. The applicants have notsatisfied the first stage of the O’Connor test, and I therefore find there is no merit to this application.

b) Alberta Health Services Records or Health Services Records of any Ministry of Health in CanadaRespecting AB Application [79] The affidavit in support of this application is the affidavit of Henry Nguyen sworn November 29, 2016. Mr. Nguyen states atpara C of his affidavit: In the disclosure provided on November 17, 2016 there was reference to [AB] being directed by Calgary Police Services to attend the“Hospital” on August 9, 2016 to address psychiatric concerns. It was stated in the Sergeants’ notes: “we determined that the witness hasnot taken his regularly prescribed psychiatric for approximately six weeks.

It was suggested to him that being back on his medicationmay help him make sound decisions and help him feel better in general. He agreed to attend a hospital and seek the advice of apsychiatrist and to obtain his prescription.” [80] The position of the accused is that because the police suggested AB go to a hospital “there is clearly an issue here with respectto his credibility and reliability”. [81] The Crown opposes this application, submitting the applicants have not met the first stage of the O’Connor test of likelyrelevance.

AB did not have counsel for this hearing, although counsel who had been retained by counsel for AB submitted documents forme to review should I find the first stage of the O’Connor test was met. [82] Again, context for this application is required. The accused have thousands of pages of information and records of, and withrespect to, AB from the 2015 Third Party Records application. These records include: 1. Correctional Service of Canada records of psychiatric and psychological assessments of AB, as well as health care records from histime in various correctional institutions; 2. Notes of Dr.

Bailey, a psychologist, dated November and December 2012, and March 2015; 3. Notes of Dr. Baxter, a psychiatrist, dated March 2015, which included a diagnosis and a prescription for Quetiapine; 4. January 13 to 20, 2015 – hospital admission records; and 5. March and June 2015 – progress notes and an assessment respecting AB from a physician, who prescribed Trazadone. [83] AB testified in direct examination three months before this application was heard, and all his answers were responsive to thequestions asked. [84] There is no evidence of the following: 1. That AB is not competent; 2.

That a person who is diagnosed with the same diagnosis as AB is a witness whose credibility or reliability is suspect, orwhose memory is affected by the health issue; and

3. That either prescription set out above affects credibility, reliability or memory. [ 85 ] Further, these offences took place five years ago. The temporal connection between events in 2016 and 2017 when disclosure was received and the offence is exceedingly remote. [ 86 ] Based on the above, and my analysis at paras 72-78, I find the applicants have not met the first stage of the O’Connor test and the application for the health care records is dismissed. Heard on December 5-9, December 12, 2016 and January 19, March 1 & March 14, 2017. Dated at the City of Calgary, Alberta this 22 nd day of December, 2017. E.A.

Hughes J.C.Q.B.A. Appearances: Janice S. Rea/Steven Johnston for the Crown Adriano Iovinelli,QC/Shamsher Kothari for the Accused Trong Minh Nguyen Andrea M. Urquhart/Tonii K. Roulston for the Accused Henry Le Nguyen Gavin L. Wolch for the Accused Byran James Balla Donald Dear QC for Media Outlet Andrea E. Beckwith-Ferraton for Alberta Health Services

_______________________________________________________ Corrigendum of the Memorandum of Decision of The Honourable Madam Justice E.A. Hughes _______________________________________________________ The following changes have been made. 1. A Notice of Publication Ban box has been added on the first page. 2. The second sentence of paragraph 2 was edited to replace "Third Party Records" with "records". 3. Paragraph 20 was added to reference the publication ban relating to CD and the Media Outlet. 4. Subsequent paragraph numbers were changed to reflect that a paragraph was added. 5.

Throughout the judgment, the names of the reporter and media outlet were replaced by CD and Media Outlet, respectively, to comply with the ban. 6. In paragraphs 47 and 82, "ps" was replaced with "pages". The original decision signed December 22, 2017 will be sealed and placed on the Court file. It will not be circulated to the publishers, and counsel are directed not to circulate it. Instead, the decision as revised by this Corrigendum will be circulated for publication and may be circulated by counsel, as it has been prepared to comply with the identification and publication bans.