R v Chung, 2023 ABKB 314

Court of King’s Bench of Alberta Citation: R v Chung, 2023 ABKB 314 Date: 20230526 Docket: 160963161Q1 Registry: Edmonton Between: His Majesty the King Crown (Respondent) - and - Christopher Paul Chung Accused (Applicant) _______________________________________________________ Memorandum of Decision of the Honourable Justice W.N. Renke _______________________________________________________ I delivered the following decision orally, with written reasons to follow. [1] Mr. Chung is charged with first degree murder in connection with the death of Junior Laidley and with offering an indignityto Mr.

Laidley’s remains. [2] The offences are alleged to have occurred on or about January 5, 2016 at or near Fort Saskatchewan, Alberta. [3] The issue for this preliminary application was whether Witness Protection Program (WPP) records sought by the Defencewere governed by the Stinchcome disclosure rules or the O’Connor production rules (R v Stinchcombe, (SCC), [1991] 3SCR 326, Sopinka J; R v O’Connor, (SCC), [1995] 4 SCR 411, Lamer CJC and Sopinka J). [4] In the following, I’ll refer to the Defence Written Submissions (DWS) and Written Submissions of the Third Party RCMP

(TPWS). Table of Contents I. Background . 3 II. Overarching Test 4 III. Matters Not at Issue . 5 A. Prior Redaction Determinations . 5 B. No Concession . 5 C. Possession or Control of the Prosecuting Crown . 5 D. Fruits of the Investigation . 5 E. The Question . 5 IV. Scope of Gubbins . 6 A. Vader . 6 B. No Bridge between Investigators and the WPP . 6 C. Scope of Gubbins . 6 V. Obviously Relevant 7 A. “Relevance” . 8 B. “Obvious” . 8 C. Obviousness and Context 9 VI. The Additional Records . 10 A. Disclosure Request 10 B. Witnesses Receiving WPP Benefits . 11 1. Types of Benefits Received . 11 2.

WPP Chronology . 12 3. Obvious Relevance of the WPP Benefits . 12 4. Obvious Relevance of Statements . 14 5. Obvious Relevance of Psychological and Addictions Observations . 17 6. Threat Assessments . 18 C. Witness Not Receiving WPP Benefits . 18 1. No Benefits, No Arrangement 18 2. Order 18 D. Records Respecting Investigating Officers and the Prosecuting Crown . 19 1. Evidence Bearing on the Abuse of Process Issue . 19 2. The Crown . 19 3. Investigating Officers . 19 4. Order 19 E. Policy Manuals . 20 F. Time and Overtime Records . 20 VII.

Summary . 20

I. Background [ 5 ] The case against Mr. Chung relies on several Vetrovec witnesses, notably witnesses who claim to have been present when Mr. Laidley was killed. One such witness was Daniel Hill, who provided several statements to the police. Mr. Hill identified individuals involved in the incident that resulted in the death of Mr. Laidley, including himself as a driver only. Mr. Hill was not charged with an offence relating to the death of Mr. Laidley. Amanda Hill, Mr. Hill’s spouse, was interviewed by the police in relation to the investigation. Melvin Pennell provided several statements to the police.

He eventually pleaded guilty to an offence connected with Mr. Laidley’s death. Mr. Hill and Mr. Pennell testified at Mr. Chung’s preliminary inquiry in June 2017. [ 6 ] Mr. Hill, Ms. Hill, and Mr. Pennell were subpoenaed by the Crown for Mr. Chung’s first trial. Mr. Hill and Mr. Pennell testified. [ 7 ] This is Mr. Chung’s second trial. The first trial was derailed when it was learned that Mr. Hill, Ms. Hill, and Mr. Pennell had contact with the WPP and Mr. Hill and Ms. Hill had the benefit of programs administered by the WPP.

As a result of information arising from mid-trial disclosure relating to informer privilege and the innocence at stake exception to that privilege, a judicial stay was entered terminating the first trial. The Court of Appeal ordered a new trial respecting Mr. Chung: R v Matthews , 2022 ABCA 115 . [ 8 ] Another issue that emerged in the first trial was not adjudicated.

This concerned whether an RCMP officer or a member of the prosecuting Crown’s office or both misled the Court and Defence giving rise to an abuse of process. [ 9 ] In the first trial, the WPP, represented by the federal Crown, produced records to the trial judge, Justice Ouellette. These records were produced on a third-party or O’Connor basis. Justice Ouellette redacted two batches of records. These were produced to Defence counsel in the first trial. At the time that Justice Ouellette ordered the stay he had redacted a third batch of records. These records were not provided to the prosecuting Crown and Defence.

After the trial was stayed, these records were returned to the federal Crown with redactions indicated. Justice Ouellette did not formally decide whether the records fell in the first party disclosure or third party production regimes: TPWS para 5. [ 10 ] In this trial, Mr. Hill and Mr. Pennell are likely to testify for the Crown. Ms. Hill may be subpoenaed. [ 11 ] And in this trial, the WPP, represented by the federal Crown, provided to Defence counsel the three batches of records produced in the first trial with the redactions approved by Justice Ouellette (with some identified exceptions).

Some additional post-first- trial records have also been produced. These records were produced on a third-party or O’Connor basis: TPWS para 6. [ 12 ] The Defence seeks the provision of further records, redacted elements of the produced records (i.e., the de-redaction of records) and additional records. The records are contended to be relevant to two main sets of issues, the credibility and reliability of the Crown witnesses and an abuse of process argument.

I’ll refer to these globally as the Additional Records. [ 13 ] The issue is whether the Additional Records should be disclosed by the prosecuting Crown on a first-party Stinchcombe basis or whether the records should be produced on a third-party O’Connor basis. [ 14 ] If the records are disclosed on a Stinchcombe basis, the Crown would be obligated to review the unredacted records and any further records and determine whether additional information should be disclosed to the Defence.

In Justice Charron’s words in R v McNeil , 2009 SCC 3 at para 18 , “[u]nless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession.” If the Defence were to seek a review of the Crown’s disclosure determinations, the Crown would have the burden of justifying any refusal to disclose by showing that the information is “clearly irrelevant” or privileged: R v Gubbins , 2018 SCC 44 , Rowe J at para 19; Stinchcombe at 339-40; R v Sandhu , 2020 ABQB 459 , Feth J at para 7. [ 15 ] If the records are subject to the O’Connor third party production regime, the O’Connor procedure was waived for the elements of the records produced in redacted form.

The consent production would not have waived the O’Connor procedure requirements for the redacted (not produced) elements of the records or for any further records. The Defence would be required to establish the “likely relevance” of the Additional Records and I would be required to conduct a second-stage balancing to determine the scope of production. [ 16 ] A voir dire was held respecting the disclosure/production issue. Staff Sgt “John Doe,” whose identity was protected under s. 486.31 of the Criminal Code , submitted an affidavit (JDA) and testified.

SSgt Doe is a member of the RCMP and a Regional NCO for the WPP. II. Overarching Test [ 17 ] The test for whether the Stinchcombe or O’Connor regime applies was set out by Justice Rowe in Gubbins at para 33 : [33] ... one should consider:

(1) Is the information that is sought in the possession or control of the prosecuting Crown? and

(2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime .... [footnote omitted]

III. Matters Not at Issue A. Prior Redaction Determinations [ 18 ] Regardless of whether the disclosure or production regime were engaged, the Crown did not contend that Justice Ouellette’s redaction determinations in the first trial were binding through (e.g.) the doctrine of issue estoppel: R v Mahalingan , 2008 SCC 63 , McLachlin CJC at paras 39, 47, 74. A new trial would not be bound by determinations made in a proceeding ordered to be re-tried. In any event, the first party disclosure/third party production issue was subject only to a provisional ruling in the first trial. B.

No Concession [ 19 ] The Defence properly did not contend that the Crown had conceded, in whole or in part, that the produced records were properly subject to the Stinchcombe regime (this distinguishes a determination in R v Giles , 2021 NSSC 69 , Scaravelli J at para 18; see R v Nguyen , 2023 BCSC 583 , Gropper J at para 35). C. Possession or Control of the Prosecuting Crown [ 20 ] The Defence did not contend that the Additional Records were “in the possession or control of the prosecuting Crown.” That stance was appropriate.

The prosecuting Crown did not receive the unredacted records: TPWS para 11; R v Fischer , 2020 ABQB 67 , Ackerl J at para 13. D.

Fruits of the Investigation [ 21 ] The Defence did not contend that the WPP should have supplied records to the prosecuting Crown because the records contained information that was “part of the fruits of the investigation.” This stance too was appropriate. [ 22 ] According to Justice Watt in R v Pascal , 2020 ONCA 287 at para 105 , [105] The “fruits of the investigation” refers to the police investigative files, not their operational records or background information .... “fruits of the investigation” refers to information “generated or acquired during or as a result of the specific investigation into the charges against the accused”: Gubbins , at para. 22 . [ 23 ] The WPP records were not investigative records or records generated as a result of the investigation of charges against Mr.

Chung: TPWS para 13; Fischer at para 15 ; R v Vader , 2016 ABQB 228 , Thomas J at para 24. E. The Question [ 24 ] The foregoing exposes the main question to be answered: was the WPP obligated to disclose the Additional Records on a Stinchcombe basis because the records contained information that was “obviously relevant?” [ 25 ] However, another issue must be addressed before turning to this question. Justice Thomas’ decision in Vader could support the argument that the WPP does not form part of the “police” for disclosure purposes. IV. Scope of Gubbins A.

Vader [ 26 ] The WPP is a program administered by the Commissioner of the RCMP: Witness Protection Program Act, ss. 2 (“Commissioner,” “Force”), 4 (WPPA). [ 27 ] I acknowledge that the WPP unit is distinct (but not separate) from RCMP investigative units: JDA para 9. The focus of the WPP is on “the needs of protected persons:” JDA para 9. Its “primary objective” is “to safeguard witnesses in cases of serious threats which cannot be reasonably addressed by other protective measures:” JDA para 5. WPP coordinators and handlers play no role in investigations: JDA para 10.

The WPP is “administered independently from investigative interests:” JDA para 11. [ 28 ] Justice Thomas found at para 28 of Vader that the WPP “is, for all intents and purposes, as separate from the investigating police force as if it were situated in another federal department or agency.” If another federal department or agency generated the same set of records, “there would be no question that those would be third party records.” “[N]either the investigators nor the prosecuting Alberta Crown will have any lawful way to access this information:” para 29.

Therefore Justice Thomas found that WPP information is in the nature of a third-party record and the O’Connor production regime applied. [ 29 ] One could argue, then, as follows: Gubbins relied on McNeil respecting disclosure obligations of the police, but on the Vader analysis the police would not include the WPP, so Gubbins and McNeil would not contemplate any extension of first-party disclosure beyond investigating policing agencies to the WPP. B. No Bridge between Investigators and the WPP

[ 30 ] Further, the record does not disclose any breach of the institutional integrity of the WPP through intrusion by investigating officers. Interaction between the WPP and investigating officers occurred in R v Jennings , 2018 ABQB 105 , Shelley J. At para 36, Justice Shelley wrote that “[t]he WPP was not isolated from the investigative team, as there was more than passing interaction between them, and this interaction triggered the police obligation to provide the WPP records on a first party footing ....” See also paras 10 and 34 and R v Emery Martin , 2021 NBQB 24 , LeBlanc J at para 48. C.

Scope of Gubbins [ 31 ] Nonetheless, in my opinion, despite the institutional arrangements respecting the WPP, the “obviously relevant” doctrine extends to the WPP. [ 32 ] First, the WPP is not a Crown entity separate from the RCMP like the Canada Border Services Agency or the Canada Revenue Agency. Links are apparent from the WPPA itself.

Section 3 of the WPPA provides that 3 The purpose of this Act is to promote law enforcement ... by facilitating the protection of persons (

a) who are involved directly or indirectly in providing assistance in law enforcement matters in relation to (

i) activities conducted by the [RCMP] .... [emphasis added] [ 33 ] The WPP falls under the direction of the RCMP Commissioner. The WPP employs police officers with specialized training as coordinators and handlers: JDA para 3. Individuals are admitted to the WPP through referrals from investigating officers. The WPP is a program for witnesses, that is to say individuals who are to provide or who have provided testimony in trials and who need protection from other individuals or from organizations involved in or having an interest in the trials.

Often the individuals will have become witnesses through the investigative efforts of the RCMP. [ 34 ] In my opinion, the WPP, considered functionally, is a branch of “the police” and remains part of the RCMP despite institutional administrative policy. [ 35 ] Second, and more importantly, Gubbins expressly extended the potential reach of Stinchcombe to Crown entities other than the police.

The second question in para 33 of Gubbins asks “Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown?” [emphasis added] [ 36 ] It could be, for example, that another Crown agency, such as a branch of the Canada Revenue Agency, participated in or coordinated with the RCMP in an investigation.

Context may dictate that this agency would not be a third party for disclosure purposes. [ 37 ] Third, and most importantly – and this was discerned by Justice Shelley in Jennings – what is crucial is not “where” the information resides, but whether, in the circumstances and on the record, the information is “obviously relevant.” Thus, Justice Shelley wrote at para 35 of Jennings that [35] In Vader , Thomas J held that, because the means and methods of the WPP and the payments made to the witness were not directly related to the facts on which Mr.

Vader was charged, this information was not part of the acquisition of evidence available for prosecution. In my view, this is too narrow an

interpretation of the Supreme Court’s decision in McNeil , which permitted first party disclosure of evidence that went to the credibility and reliability of a witness, as long as that witness was integrally connected to the investigation . Here, both Mr. Lopez and Mr. Edmunds were instrumental in acquiring evidence for the prosecution . Mr. Lopez’s actions as a police agent triggered Edmund’s confession and his involvement in the investigation as a Crown witness. [emphasis added] [ 38 ] Justice Shelley anticipated Gubbins .

Under Gubbins , the question is not whether the “other Crown entity” is or is not institutionally linked to the police, but whether the information the other Crown entity possesses is part of the fruits of the investigation or obviously relevant – at least if there is a functional connection between the other Crown entity, the police, and the trial process. [ 39 ] I therefore conclude that any institutional distinction of the WPP from the investigative units of the RCMP does not block the reach of Gubbins to WPP records, particularly in light of the functional connection of the WPP to the police role in the trial process.

V. Obviously Relevant [ 40 ] Gubbins , though, does not entail that all WPP records or, in this case, that all WPP records relating to Mr. Hill, Ms. Hill, and Mr. Pennell, are subject to first-party disclosure: R v Gabad , 2023 ABKB 267 , Labrenz J (March 30, 2021) at para 43. Only “obviously relevant” records would be subject to disclosure. [ 41 ] Three aspects of “obvious relevance” are important – what is meant by “relevance,” what is meant by “obvious,” and context. A. “Relevance” [ 42 ] The concept of “relevance” at work in the phrase “obviously relevant” is relevance in the Stinchcombe sense.

Gubbins did not establish a “new standard” of relevance: Gabad at paras 6, 22 . Thus Justice Feth wrote at para 33 of Sandhu that [33] As the Supreme Court confirmed in Gubbins , “obviously relevant” does not create a new standard of relevance. Relevance continues to mean a reasonable possibility that the information may assist the accused in the exercise of the right to make full answer and defence, including the ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence: McNeil at para 17 and Gubbins at para 23 .

Justice Watt commented in Pascal at para 129 that “[l]ogically, this would include evidence that could be used to impeach the credibility of witnesses to be called to establish the accused’s guilt.” B. “Obvious” [ 43 ] To engage the Gubbins extension of Stinchcombe , relevance must be “obvious.” [ 44 ] According to the Oxford English Dictionary , “obvious” means 1.a. Plain and evident to the mind; perfectly clear or manifest; plainly distinguishable; clearly visible .... c.

Natural, likely; such as common sense might suggest. [ 45 ] I note that in McNeil at para 54 , Justice Charron used “self-evident” as a synonym for “obvious:” “When the police misconduct in question concerns the same incident that forms the subject-matter of the charge against the accused, the police duty to disclose information concerning police disciplinary action taken in respect of that misconduct is rather self-evident.” [ 46 ] Justice Feth commented in Sandhu at para 36 that [36] The Alberta Court of Appeal in Vallentgoed used the terms “admittedly relevant” or “relevant beyond dispute” to capture the usual meaning of obvious relevance.

However, that guidance should not be construed so narrowly that the efficiency and fairness promoted by first party disclosure is lost.

Black’s Law Dictionary , Online Legal Dictionary , 2nd Edition, defines “obvious” to include that which is “apparent, easily seen or understood.” In my view, the appellate jurisprudence leaves room for obvious relevance to include information that is clearly and more than likely relevant, even where some dispute arises. [ 47 ] “Obvious relevance,” though, as Justice Feth pointed out at para 35, must [35] ... connote a measure of clarity greater than “likely relevance”, otherwise the first stage of the O’Connor analysis would be rendered redundant and the production of all police records would be addressed through first party disclosure.

The appellate jurisprudence plainly contemplates that the O’Connor regime survives for some police records: McNeil at para 25 ; Gubbins at para 24 ; and [ R v Black , 2011 ABCA 349 ] at para 37-38. [ 48 ] Finally, the notion of “obviousness” leaves open the question of “obvious to whom?” [ 49 ] Obviousness may be determined by a judge. In R v Stipo , 2019 ONCA 3 , Justice Watt commented at para 86 that “[u]nlike in the second step of the O’Connor application, the court will not have the records before it for examination.

Therefore, the relevance of the records must be ‘obvious’ without such examination.” [emphasis added] [ 50 ] Obviousness may be apparent to the record holder. Justice Charron had this in mind at para 59 of McNeil : “Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting .” [emphasis in original] [ 51 ] Obviousness may be determined by the Crown who reviews records produced by the police prior to disclosure.

Justice Charron referred to this “gate-keeping” role of the Crown at para 58: “The Ferguson Report recommended that upon receiving this information from police, the Crown act as ‘gate-keeper’, sorting out what parts of this material, if any, should be turned over to the defence in compliance with the Crown’s Stinchcombe obligation of disclosure.” C.

Obviousness and Context [ 52 ] Justice Feth again properly captured the contextual nature of a judgment of “obvious relevance,” at para 34 of Sandhu : [34] Relevance must be assessed contextually and is driven by the specifics of the charge against the accused, the circumstances surrounding the alleged offence, the nature and scope of the investigation, the evidence which the Crown relies upon to seek a conviction, and any defences the accused intends to put forward: McNeil at paras 38-39 ; R v Vautour , 2019 PESC 42 at para 13 ; and R v Fischer , 2020 ABQB 67 at para 21 . [ 53 ] As regards WPP records, the relevance determination will turn on, e.g., the following contextual factors. [ 54 ] First, as discussed earlier, the functional relationship of the WPP to the RCMP, investigations preceding trial, and witnesses testifying in the trial. [ 55 ] Second, the importance of the protected witness to the Crown’s case, whether the witness is “integral” to the Crown case: Giles at para 24 ; Emery Martin at para 20 ; Jennings at paras 12, 32 .

A good comparator for the present case was described by Justice Ackerl in Fischer at paras 22-23 : [22] In this case, Ms. P. allegedly provided the vehicle used to transport the victim to the crime scene. She allegedly was also present in the immediate vicinity with the accused persons and the victim when the alleged murder occurred. Subsequently, she actively assisted police in locating and confirming the Accused’s residences. [23] Under the circumstances, Ms. P. is a material, and indeed, significant Crown witness. She is integrally connected to both the police investigation and the prosecution case.

It is properly anticipated the credibility and reliability of her evidence will meaningfully impact the trial outcome ....

[ 56 ] Third, the timing of WPP benefits or contact with the program. The mere fact that a witness received WPP benefits regardless of how long before or after a trial or regardless of the circumstances that made the individual a witness would not mean that WPP records were obviously relevant. In Fischer , program benefits were being provided at the time of testimony. In my opinion, receipt of WPP benefits before or after testifying may attract a finding of relevance so long as the timing of receipt of benefits was relatively proximate to trial participation.

The question will be whether the benefits were circumstantially relevant to the witness’s motivations to testify and therefore to the content of the witness’s testimony. See R v Johnston , 2019 BCCA 107 , Griffin JA at para 86 (“I accept that Person Y’s enrollment in the WPP [3 words redacted] after he completed his testimony is probative of the likelihood that there were discussions between Person Y and persons in authority regarding his pending or possible enrollment in the WPP, before he completed his testimony”). [ 57 ] Fourth, as is always the case, relevance must be gauged against the facts-in-issue.

The facts-in-issue will include the credibility and reliability of witnesses.

In the present case, relevance must also be gauged in relation to the abuse of process argument. [ 58 ] At DWS para 2, the defence referred to relevance “to issues on the substantive trial, including any information that would impact the credibility and reliability of witnesses (as well as any information or statements provided to the WPP relating to the circumstances of the offence, the applicant, or anticipated testimony).” Defence counsel also referred to relevance to issues not discussed in prior caselaw: the abuse of process Charter application ... is intertwined with disclosure issues that arose in the first trial surrounding WPP information that was withheld from prior defence counsel.

Consequently, information within WPP records that informs issues on the abuse of process motion (such as which RCMP investigators or Crown prosecutors were involved with the WPP, their knowledge of witness participation, and the timeline of that knowledge) are also relevant in the unique context of the present case .... VI. The Additional Records A. Disclosure Request [ 59 ] By correspondence of July 20, 2022, Defence counsel requested the additional disclosure including the following: 1.

All disclosure relating to the involvement of witnesses and their families in the federal and/or provincial witness protection program(s), or limited aid agreements such as Alternate Aid Arrangements, including but not limited to:

a) Any applications;

b) Any agreements, whether formal or informal;

c) Any offers that were made to witnesses including (but not limited to) Melvin Pennell, Matthew Thiemer, and Daniel Hill;

d) Any communications or correspondence regarding the witness protection program, applications into the program(s), discussions regarding suitability, etc.;

e) Notes or other documents relating to the provincial and/or federal witness protection program for any of the witnesses or their families;

f) Notes of any meetings regarding the witness protection program(

s) or other such offers of protection or payment to any witnesses or their families;

g) Threat assessments;

h) Any payments that were made to witnesses or compensation or assistance provided in the form of hotels, meals, taxis, etc.;

i) Financial accountings including receipts and expenses associated with the witness protection program or applications into the program(s);

j) Time and overtime tracking logs;

k) Details of all of Cst. Simard’s interactions with Melvin Pennell and any other witnesses in 2017 and 2018, including reports, notes, messages, and communications; and

l) Involvement of the MCU including reports, notes, correspondence, communications, and policy manuals. [ 60 ] At DWS para 2, Defence counsel wrote To state the Applicant’s request succinctly, the defence seeks disclosure of all relevant records in the possession of the WPP that are not exempt as prohibited disclosure under section 11(1) of the Witness Protection Program Act . [ 61 ] I’ll consider first the issues concerning the two potential witnesses who received WPP benefits, then the potential witness who did not, and finally the issues concerning all the witnesses. [ 62 ] I have not reviewed any of the records in question. B. Witnesses Receiving WPP Benefits

1. Types of Benefits Received [63] Neither Mr. Hill nor Ms. Hill entered the WPP “full program.” Each obtained “emergency protection” and entered into“Alternate Aid Arrangements” (AAA). [64] Benefits provided by the full WPP program include relocation, accommodation, change of identity, counselling and financialsupport “to ensure the security of a person and to facilitate the person’s re-establishment and self-sufficiency:” JDA para 8. Job supportscould include skills training. Counselling may concern psychological or addictions matters. Treatment programs may be provided. [65] Mr. Hill and Ms.

Hill did not obtain a secure name change and were not supported to “establish a new life.” They wereresponsible for their own safety. The WPP did “not have much impact” on where they lived or how they lived. [66] In emergency protection and AAAs, “small” amounts of support may be provided, including accommodation support, a livingallowance and (at the material times) counselling and addiction treatment. Each of Mr. Hill and Ms. Hill would have received his or herown living allowance. [67] SSgt Doe confirmed that the financial support paid is to ensure that a basic standard of living is met.

The amount of financialsupport can vary, depending on the number of dependents and the types of services required. The financial support depends on individualneeds. The living allowance is generally standard, but variation may occur because of costs of living in different communities or becauseof (e.g.) addictions treatment needs. 2. WPP Chronology [68] In March 2016, the Edmonton Major Crimes Unit requested that the WPP consider admitting Mr. Hill into its program. TheMCU advised that the Crown had decided not to charge Mr. Hill. There was no immunity agreement: JDA para 12. [69] Mr. Hill and Ms.

Hill were in emergency protection in April 2016 and July 2019. [70] They were in AAAs for three month periods commencing in June 2016, September 2016, and September 2019. [71] The first trial was held in November and December 2018. Mr. Hill testified but Ms. Hill did not. 3. Obvious Relevance of the WPP Benefits (

a) Importance of the Witnesses [72] Mr. Hill was an important Crown witness. He was an eyewitness to the death of Mr. Laidley. Mr. Hill was not charged withan offence relating to Mr. Laidley’s death. Ms. Hill was his dependent, his spouse. (

b) Timing [73] As the Defence argued, the WPP arrangements bookended the trial. I consider the timing of the contacts with the WPP tomaintain the relevance of these arrangements to the assessment of the credibility and reliability of these witnesses in the upcoming trial. (

c) Impact of the Benefits [74] In my opinion, even without having reviewed the records, any records containing information about pecuniary or non-pecuniary benefits provided through the WPP to Mr. Hill and Ms. Hill are obviously relevant to the assessment of their credibility andreliability.

See Gabad at paras 44, 45, 50; Fischer at para 24; Giles at paras 17-18; Emery Martin at para 47. [75] It strikes me as indisputable that the fact that a witness for the Crown has received benefits from the Crown is relevant to theassessment of that witness’s credibility and reliability: Johnston at paras 91 (“Materials relating to possible witness benefits orinducements are relevant and the Crown must clearly disclose them as first party records during the trial proceeding.

The Crown readilyconcedes this”); see also para 104. [76] In Johnston at para 90, Justice Griffin wrote that [90] Management of Crown witnesses by police investigators, including the promise of any benefits or special treatment pre-trial, canbear on the witnesses’ motives and states of mind during trial testimony, and whether those inducements influenced them to shape theirtestimony: Palmer at para. 32.

Benefits received by a witness may provide fodder for the defence to challenge the independence,reliability and credibility of the witness. [77] On the obviousness of the impact of benefits on witness credibility and reliability, I observe that the common law hasrecognized since at least the late 1700s that if there is a reasonable doubt about whether an accused’s statement was induced by hope ofadvantage, the statement is inadmissible. Justice Iacobucci wrote as follows in R v Oickle, 2000 SCC 38 at para 24: 24 As indicated by McLachlin J. (as she then was), in R. v.

Hebert, (SCC), [1990] 2 S.C.R. 151, there are two mainstrands to this Court’s jurisprudence under the confessions rule. One approach is narrow, excluding statements only where the policeheld out explicit threats or promises to the accused. The definitive statement of this approach came in Ibrahim v. The King, [1914] A.C.599 (P.C.), at p. 609: It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against

him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either byfear of prejudice or hope of advantage exercised or held out by a person in authority. [emphasis added] See also para 49.

Even as regards an accused, a hope of advantage vitiates reliability. [78] In R v KGB, (SCC), [1993] 1 SCR 740 at 801, Chief Justice Lamer recognized the same sort of threat toreliability as it applies to witness statements: “the test developed by this Court for the admission of confessions is well-suited to making athreshold determination of whether the circumstances under which the statement was made undermine the veracity of the indicia ofreliability.” [79] What occurred in the first trial provides some indication of the importance of evidence of witnesses’ receipt of benefits fromthe State.

The revelation that some Crown witnesses had received such benefits caused the trial judge and counsel great concern. Whilethis revelation, by itself, did not generate the eventual stay, the revelation did generate significant discussion and the eventualinvolvement of the federal Crown leading to the production of records. [80] I do not know whether Mr. Hill’s spouse will be called as a witness in this trial or what her evidence might concern, but herstatus as Mr. Hill’s spouse and the provision of benefits to her links her benefits to Mr. Hill. Her benefits are his benefits.

See thedecision of Justice McIntyre, then of the BC Court of Appeal, in R v Jackson (1977), (BC CA), 34 CCC (2d) 35(BCCA) at 38, quoted with approval in Oickle at para 51: [Cases] must be considered in relation to their own facts.

It is m y opinion that for a promised benefit to a person other than the accusedto vitiate a confession, the benefit must be of such a nature that when considered in the light of the relationship between the person andthe accused, and all the surrounding circumstances of the confession, it would tend to induce the accused to make an untrue statement,for it is the danger that a person may be induced by promises to make such a statement which lies at the root of this exclusionary rule. [81] The issue of the impact of benefits on witnesses’ lifestyle was raised in the cross-examination of SSgt. Doe.

I do not considerthe contribution of benefits to the witnesses’ lifestyle to be a significant factor on the record. There is no evidence, for example, that thebenefits would have no value to the witnesses because they were incarcerated for life or because they had substantial revenue-generatingassets. Generally, if benefits are received from the State, those are benefits that would not have otherwise been received.

Even if awitness (formerly) had revenues exceeding the amount of State assistance, the State assistance is new money that the witness has not hadto earn through a job, through investments, or through selling property. The effect of the marginal value of the benefit to a witness on thewitness’s credibility or reliability is a matter to be assessed following cross-examination. (

d) Order [82] I order that all unredacted WPP records containing information about benefits received by Mr. Hill and Ms.

Hill be disclosedto the prosecuting Crown. [83] Again, by benefits I include any payments made to either witness or on either witness’s behalf to a third party and theprovision of any goods or services (e.g. transportation). [84] This will require review of records including • any applications • any agreements, formal or informal • any offers made to either witness • any payments to third parties (information about third parties that would or would have compromised the witness’s safety shall notbe disclosed). [85] I add that I accept the federal Crown’s point that itemized receipts and detailed payment information are not relevant.

Totalexpenditures and breakdowns of expenses by category are sufficient. [86] The prosecuting Crown shall disclose to the Defence any records or information required by Stinchcombe not alreadyproduced to the Defence. 4. Obvious Relevance of Statements [87] The Defence seeks “information or statements provided to the WPP relating to the circumstances of the offence, the applicant,or anticipated testimony:” DWS para 2. (

a) Nature of Relevance [88] If there were records containing such information, particularly statements by Mr. Hill or Ms. Hill about the eventssurrounding the death of Mr. Laidley, this information would certainly, on a Stinchcombe basis, be relevant to the defence. Suchinformation could reasonably inform the assessment of the witnesses’ credibility and reliability. Such information could be relevant tothe guilt or innocence of Mr. Chung.

If such information existed, it would be, in my opinion, obviously relevant to the Defence. [89] However, there is a distinction between this information and the benefits information. The relevance of the benefitsinformation is obvious to all, without any need to review the particulars of the benefits. Further, it is established that Mr. Hill and Ms.Hill in fact received some benefits through emergency protection and AAAs.

[ 90 ] The record, though, does not contain direct evidence about whether Mr. Hill or Ms. Hill said anything about the circumstances of the offence to anyone with the WPP. Mr. Hill or Ms. Hill may have provided information, it is possible that they did, but is that possibility sufficient to attract the Stinchcombe disclosure regime? [ 91 ] One might argue that the Defence bid for this information is based only on speculation about the contents of WPP records. How could it be said that the evidence sought is “obviously relevant” if its existence is unknown? (

i) Circumstantial Foundation for Reasonable Possibility of the Existence of Statements [ 92 ] However, there is a circumstantial foundation for the reasonable possibility that Mr. Hill and Ms. Hill made statements about the circumstances of the offence that would be captured in records held by the WPP. [ 93 ] I look to the WPPA itself.

Section 7 provides as follows: 7 The Commissioner shall consider the following factors in determining whether a witness should be admitted to the Program: (

a) the nature of the risk to the security of the witness; (

b) the danger to the community if the witness is admitted to the Program; (

c) the nature of the inquiry, investigation or prosecution involving the witness ... and the importance of the witness in the matter ; (

d) the value of the witness’s participation or of the information, evidence or assistance given or agreed to be given by the witness .... [emphasis added] Witness’s evidential contributions are relevant to WPP arrangements. [ 94 ] The WPP unit is dealing not with individuals unconnected to criminal proceedings, but with witnesses , and with witnesses to the very offences charged against Mr. Chung. [ 95 ] I do not suggest in any way that members of the WPP unit would seek to elicit information about offences from witnesses. But witnesses talk.

They are put in contact with WPP members because of what they claim to have know or to have observed. WPP members will doubtless do their best to keep witnesses focused on only WPP-relevant matters. That does not mean that witnesses will not say anything about what they observed. [ 96 ] Further, we are dealing not with a non-governmental records holder or a records holder institutionally separate from the prosecution of criminal offences, but with a records holder that is a unit of a policing agency, even though that unit is not tasked with criminal investigation.

Institutional distinctions are unlikely to make significant impressions on most civilian witnesses.

They will understand that they worked with the police in the investigation and they’re working with the police for their protection. [ 97 ] In addition, the timing of the WPP contacts supports or at least does not preclude the reasonable possibility of communication about the events in question or about testimony concerning the events in question. (ii) McNeil and Preventing the Catch-22 [ 98 ] Regardless, in my opinion, we are in the type of circumstances considered by Justice Charron in McNeil . [ 99 ] Justice Charron referred to the Ferguson Report at para 56: [56] The Ferguson Report noted that the question of disclosure of such information was usually left to be determined in the context of an O’Connor application for third party production and that this often gave rise to a “Catch-22” problem, stating as follows (at p. 12): Once into O’Connor , it is difficult, if not impossible, for the defence to meet the threshold required to access the records .... [emphasis added] [ 100 ] The same difficulty is present here.

The Defence cannot know whether or what a witness said to WPP members without having reviewed the records in question. See Gabad at para 30 . [ 101 ] Justice Charron said the following at para 59 of McNeil : [59] I agree that it is “neither efficient nor justified” to leave the entire question of access to police misconduct records to be determined in the context of the O’Connor regime for third party production . Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process.

Where the information is obviously relevant to the accused’s case, it should form part of the first party disclosure package to the Crown without prompting . For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent upon the police force, in fulfilment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action . Of course, not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused’s case.

The officer may have played a peripheral role in the investigation, or the misconduct in question may have no realistic bearing on the credibility or reliability of the officer’s evidence.

The kinds of information listed in the Ferguson Report can provide useful guidance on those types of matters in respect of which a police force may well be advised to seek the advice of Crown counsel . [underlined emphasis added] [ 102 ] Justice Charron confirmed in McNeil at para 52 that “the police have a corollary duty to disclose to the prosecuting Crown all material pertaining to the investigation of an accused.” See also paras 23 and 24.

[ 103 ] Given the circumstantial foundation for the reasonable possibility for the existence of statements made by witnesses about the events in question or testimony, the WPP has an obligation to review its records to determine whether any such statements were made. The WPP is obligated, then, to determine whether its records contain information that is obviously relevant to the Defence. If its review reveals such records, those records should be provided to the Crown for review: see Giles paras 3, 25-27 . (

b) Order [ 104 ] I order the WPP to review its records to determine whether Mr. Hill or Ms. Hill made any comments about the offences Mr. Chung faces or about their prospective or past testimony. The records containing this information must be provided in unredacted form to the prosecuting Crown. [ 105 ] The records to be reviewed include notes made respecting any interactions between WPP members and Mr. Hill or Ms. Hill and notes of any communications made by Mr. Hill or Ms.

Hill respecting the circumstances of the offences. [ 106 ] The prosecuting Crown shall disclose to the Defence any records or information required by Stinchcombe not already produced to the Defence. 5. Obvious Relevance of Psychological and Addictions Observations (

a) Psychological and Addictions Observations [ 107 ] I accept that the WPP does not perform psychological evaluations of witnesses. SSgt Doe confirmed that the WPP does not conduct psychological assessments for admission to programs. Neither does the WPP employ individuals to perform psychological assessments. I do note that a psychological assessment of a prospective protected witness was performed in the Jennings case: see para 9 . I also accept that if such an assessment were performed it could be obviously relevant to the credibility and reliability of a witness, depending on the nature of the assessment’s conclusions: see Fischer at para 25 . I note that s. 7(

e) of the WPPA provides that 7 The Commissioner shall consider the following factors in determining whether a witness should be admitted to the Program: .... (

e) the likelihood of the witness being able to adjust to the Program, having regard to the witness’s maturity, judgment and other personal characteristics and the family relationships of the witness .... [emphasis added] [ 108 ] In any event, SSgt Doe also confirmed that as part of at least the interviewing process, mental health or addictions issues “could come to the surface.” [ 109 ] Moreover, the WPP may assist with addictions counselling.

If a witness stated that he or she were under the influence of drugs or alcohol at the time of making alleged observations or since, that too would be obviously relevant to the Defence. If the witness were under the influence of drugs or alcohol at the time of alleged observations, that could undermine the witness’s credibility or reliability by calling into question the accuracy of the witness’s observations.

If the witness significantly abused drugs or alcohol after the alleged observations, that too could undermine the witness’s credibility or reliability by impairing the witness’s memory. [ 110 ] Potential records concerning psychological condition or addictions are on the same footing as the evidence concerning statements. If the evidence existed, it would be obviously relevant to the Defence.

Whether the evidence exists, though, cannot be determined by the Defence. [ 111 ] For the reasons given respecting statements, the duty of the WPP, as a branch of the police connected with in-trial testimony, is to determine whether such evidence exists and to provide the material records, unredacted, to the prosecuting Crown. (

b) Order [ 112 ] I order the WPP to review its records to determine whether any WPP member recorded any observations about Mr. Hill or Ms. Hill relating to their psychological conditions or relating to whether at the time of the alleged offences or afterwards they were under the influence of drugs or alcohol to a degree that could affect the assessment of their credibility and reliability. Any records containing such information must be disclosed to the prosecuting Crown in unredacted form. [ 113 ] Again, the records to be reviewed include notes made respecting any interactions between WPP members and Mr.

Hill or Ms. Hill and notes of any communications made by Mr. Hill or Ms. Hill respecting their psychological conditions and drug or alcohol abuse at the time of or following the events in question. [ 114 ] The prosecuting Crown shall disclose to the Defence any records or information required by Stinchcombe not already produced to the Defence. 6. Threat Assessments (

a) Information in Threat Assessments [ 115 ] SSgt Doe stated that gang or organized crime affiliations of protected persons would be addressed in a threat assessment. [ 116 ] In Gabad at para 50 , Justice Labrenz found that a threat assessment by the WPP was obviously relevant. The threat assessment could contain statements by the witness about the accused (e.g. the accused’s links to a gang or organized crime) and threats by the accused to the witness’s safety. Those claims may be relevant to the assessment of the witness’s credibility and reliability.

(

b) Order [ 117 ] I order the WPP to review its threat assessment records to determine whether Mr. Hill or Ms. Hill made any claims about Mr. Chung’s dangerousness or connections with gangs or organized crime or described any threats made by Mr. Chung against either of them. Any records containing such information must be disclosed to the prosecuting Crown in unredacted form. [ 118 ] The prosecuting Crown shall disclose to the Defence any records or information required by Stinchcombe not already produced to the Defence. C. Witness Not Receiving WPP Benefits 1. No Benefits, No Arrangement [ 119 ] Mr.

Pennell declined participation in any WPP arrangement. No benefits were provided to him: JDA paras 40-42. He received no protection or financial assistance. No agreement or arrangement was entered into with Mr. Pennell. [ 120 ] The sole contact between WPP members and Mr. Pennell was an interview on July 10, 2018. [ 121 ] The sole source of relevant records would be that interview. 2. Order [ 122 ] I order the WPP to review its records of the July 10, 2018 interview with Mr. Pennell to determine whether any records were made of any comments by Mr.

Pennell about the events at issue, his testimony, or about his drug or alcohol abuse bearing on his observations or memory and whether WPP members recorded any observations respecting Mr. Pennell’s psychological state relevant to his credibility and reliability. [ 123 ] If any such records exist, the WPP is ordered to provide those records in unredacted form to the prosecuting Crown. The prosecuting Crown shall disclose to the Defence any records or information required by Stinchcombe not already produced to the Defence. D. Records Respecting Investigating Officers and the Prosecuting Crown 1.

Evidence Bearing on the Abuse of Process Issue [ 124 ] This case has the unusual feature of an abuse of process argument based on the conduct and representations of at least one member of the RCMP investigations team and respecting representations made by one or more Crown prosecutors. That argument is based on testimony heard during the first trial and some produced documents. That argument is not speculative but relies on some evidence in support. [ 125 ] The evidential issues that shall eventually require resolution will turn on who knew what information and when that information was known. 2.

The Crown [ 126 ] SSgt Doe testified that there are no records of any contact by the WPP with any prosecuting Crown. He was directly asked whether there was any Crown involvement with the WPP respecting Mr. Hill and Ms. Hill in this case. The answer was No. That testimony was not undermined in any way and I accept that it is true. Hence, the WPP has no obligation to review records respecting WPP contact with Crown prosecutors. 3.

Investigating Officers [ 127 ] Records showing which members of the Major Crimes Unit contacted the WPP and the information provided by the WPP to the members of the Major Crimes Unit is obviously relevant. [ 128 ] SSgt Doe testified that the WPP is engaged through “criminal operations” (CROPS) personnel from the investigating Division rather than by criminal investigators. His affidavit referred to CROPS members contacting the WPP respecting Mr. Hill and Ms. Hill: paras 20, 33.

CROPS members, though, could reasonably be inferred to have had communications respecting witness protection with investigating officers. [ 129 ] Further, SSgt Doe’s affidavit also confirmed that MCU members contacted the WPP respecting Mr. Hill and Ms. Hill and respecting Mr. Pennell: paras 12, 39. [ 130 ] Two aspects of the Defence request for disclosure are relevant: • details of Cst. Simard’s interactions with Mr.

Pennell and any other witnesses in 2017 and 2018, including reports, notes, messages, and communications, and • reports, notes, correspondence, and records of communications providing information about the involvement of members of the MCU with the WPP.

4. Order [ 131 ] I order the WPP to provide its records relating to contact with the MCU and CROPS members, particularly Cst. Simard, in unredacted form to the prosecuting Crown. [ 132 ] The pertinent information concerns the identities of the MCU and CROPS officers who received information about the WPP arrangements (or lack of arrangements) for Mr. Hill, Ms. Hill, and Mr. Pennell and when those officers were provided with that information. [ 133 ] The prosecuting Crown shall disclose to the Defence any records or information required by Stinchcombe not already produced to the Defence. E.

Policy Manuals [ 134 ] The Defence disclosure request referred to “policy manuals.” I did not detect a foundation for making a disclosure order respecting policy manuals. However, I understand that Defence counsel at the first trial received a WPP manual. I will leave the issue of producing a redacted WPP manual to the discretion of the WPP and federal Crown. F. Time and Overtime Records [ 135 ] I agree with the federal Crown that, on the record, “time and overtime tracking logs” would not contain obviously relevant information. VII.

Summary [ 136 ] The Defence does not seek disclosure of any information prohibited by s. 11(1) of the Witness Protection Program Act . [ 137 ] I have ordered that the WPP provide to the prosecuting Crown unredacted records containing information concerning • benefits received by Mr. Hill and Ms. Hill • any comments by Mr. Hill or Ms. Hill about the offences Mr. Chung faces or about their prospective or past testimony • any observations made by any WPP member relating to the psychological conditions of Mr. Hill or Ms.

Hill or relating to whether either was under the influence of drugs or alcohol at the time of the alleged offences or following the time of the alleged offences to the degree that could affect the assessment of their credibility and reliability • any comments by Mr. Pennell about the offences Mr. Chung faces or about Mr. Pennell’s testimony • any WPP member’s observations about Mr. Pennell’s psychological condition or relating to whether Mr.

Pennell had abused drugs or alcohol at the time of the alleged offences or following the alleged offences to the degree that could affect the assessment of his credibility and reliability • any claims made by Mr. Hill or Ms. Hill in a threat assessment concerning Mr. Chung as a source of danger or describing any threats made by Mr. Chung against either of them • WPP contact with the MCU and CROPS members, indicating the identities of the MCU and CROPS officers who received information about the WPP arrangements (or lack of arrangements) for Mr. Hill, Ms. Hill, and Mr.

Pennell, the information provided to those officers, and when those officers were provided with that information. [ 138 ] The prosecuting Crown shall disclose to the Defence any records or information required by Stinchcombe not already produced to the Defence. Heard on the 27 th day of April, 2023. Delivered at the City of Edmonton, Alberta this 12 th day of May, 2023. Signed at the City of Edmonton, Alberta this 25 th day of May, 2023. W.N. Renke J.C.K.B.A.

Appearances: Cameron Regehr Department of Justice Canada for the Federal Crown (Respondent) Marissa Tordoff Alberta Crown Prosecution Service Specialized Prosecutions for the Provincial Crown Alexandra Seaman Tania Shapka Dawson Duckett Garcia & Johnson for the Accused (Applicant)