R v Gabad, 2023 ABKB 267

Court of King’s Bench of Alberta Citation: R v Gabad, 2023 ABKB 267 Date: 20230502 Docket: 200075638Q1 Registry: Calgary Between: His Majesty the King Crown - and - Yahye Gabad Accused - and - Tyrell Noskiye Accused - and - Timothy Ashton Jones Accused -and- Dwayne Lyn Turner Accused/Applicant

-and- Alberta Witness Security Program Respondent Corrected judgment: A corrigendum was issued on July 17, 2023; thecorrections have been made to the text and the corrigendum is appended to thisjudgment. _______________________________________________________ Reasons for Decision of the Honourable Mr. Justice D.A. Labrenz _______________________________________________________ These are reasons that were delivered orally on March 30, 2021. Although a transcript has been produced of those reasons, I havedecided to publish these reasons for the purpose of greater accessibility.

In this written version I have made corrections to language andadded case citations to the reasons previously provided orally. The oral version that was delivered in court remains the official version. Introduction [1] The accused are charged with the first degree murder of Karson Goodeagle arising from certain events that occurred onJanuary 5, 2020.

Following the arrest of the four accused, the Crown preferred a direct indictment, and a six-day trial was scheduled tobe heard in this Court before Justice Gates beginning February 1, 2021. [2] The trial of the four men, however, did not proceed as scheduled on February 1st because the Court and defence counselwere advised that one of the key Crown witnesses, who I will simply identify as John Roe [“JR”], had lately entered the WitnessProtection Program as administered by the Alberta Witness Security Program under the authority granted by the Witness Security Act,SA 2010, c W-12.5.

Also relevant to my consideration in this disclosure application is the Witness Protection Act, SC 1996, c 15. [3] Justice Gates adjourned the trial to proceed May 25, 2021. [4] I was appointed as the case management judge to hear the application of the accused to seek further disclosure of specifieddocumentation related to JR’s entry into the Witness Protection Program and to determine whether certain information relating tofinancial expenditures incurred consequent to JR’s participating in the program have been overly redacted. [5] Legal Counsel on behalf of the Alberta Witness Security Program [“AWSP”] resists further disclosure on several discretebases.

First, contrary to the submissions made by the accused, the Security Program argues that the requested disclosure is not first partyrecords under R v Stinchcombe, (SCC), [1991] 3 SCR 326, but instead should be viewed as third party records subject tothe procedures applicable to such records as adopted by the Supreme Court of Canada’s decision in R v O’Connor, (SCC), [1995] 4 SCR 411.

Beyond that consideration, the AWSP argues that it has already disclosed all documentation that are properlydisclosable and not otherwise privileged. [6] As an initial step, I must first determine whether or not the documentation within the possession of the AWSP is first partyor third party disclosure. This is my decision with respect to that threshold issue. Background [7] JR is alleged to have been situated outside a Circle K Convenience Store before the attack of Karson Goodeagle on January5, 2020. At the time he was in the vicinity of the accused Dwayne Turner and the accused Timothy Jones.

JR advised police, at least inpart, that when Mr. Goodeagle entered the Circle K, he heard Mr. Turner instruct Mr. Jones to “call the other two,” that they were“doing a hit,” and “taking care of this”. It is alleged by the Crown that the four co-accused then waited for Mr. Goodeagle to exit theCircle K before attacking him. This attack resulted his eventual death. All four accused were subsequently arrested between January 6and January 8, 2020. [8] JR did not provide an initial statement to police until January 10, 2020. He then provided a KGB statement to the police on

January 16, 2020. JR is, as is obvious, is an essential witness for the Crown. In part, the Crown intend to argue that the utterances overheard by JR provide some evidence of planning and deliberation thereby supporting an argument in support of convicting the accused of first degree murder. The Crown advises, as well, that it will argue for a conviction of first degree murder based upon forcible confinement. With respect to the latter argument, the Crown suggests that JR would not be a necessary witness.

Nonetheless, the Crown does not dispute that JR is an important witness for the Crown. [ 9 ] On December 16, 2020, the Crown received information that JR feared for his safety and wanted to enter the Witness Protection Program. The Crown completed documentation in response to JR’s request that same day and provided it to the Calgary Police Service.

The Crown confirms that it received advice, on the same day, that efforts were directed towards placing JR into the Witness Protection Program. [ 10 ] On January 28, 2021, the Calgary Police Service advised Crown counsel that JR had been accepted into the Witness Protection Program in December of 2020. On January 7, 2021, the Calgary Police Service sent an email to the Crown indicating that JR was in treatment and doing well.

According to the Crown, the Crown was later advised that JR was not formally accepted into the program until February 1, 2021, but was being treated as if he was in the program before that date. [ 11 ] On February 1, 2021, shortly before speaking to the adjournment in front of Justice Gates, Mr. Iovinelli, QC on behalf of all defence counsel requested several items of disclosure in relation to JR and his involvement in the AWSP. The Crown responded to this request by correspondence dated February 18, 2021 as follows: i.

Letter of Acknowledgement – the Crown stated that JR had not signed a Letter of Acknowledgement. The Crown promised it would forward a redacted copy once signed by JR; ii. Communications including texts, emails, and correspondence between counsel for the participant and the Crown. The Crown advised that counsel had not yet been appointed and the records do not exist; iii. Threat Assessment – the Crown advised that it is not in possession of these documents, and that the documents are third-party disclosure and subject to the O’Connor regime; iv.

Handler and surveillance notes - the Crown advised that the will-state of the witness protection officer notes are third party disclosure and also subject to the O’Connor regime; v. All information and background reviews leading up to the signing of the Letter of Acknowledgment – the Crown advised that it was not in possession of these documents; vi. All interactions of the participant and law enforcement – the Crown advised that a criminal record and an up-to-date tracking sheet have been provided; vii.

All financial renumeration in relation to the participant and any exchange of hard cash, payment for programming, payment of debts, and all financial breakdowns – the Crown advised that a disclosure of expenditures, current to February 1, 2021 had been provided February 3, 2021 and that more up to date disclosure can be provided at a future date if requested; viii. Psychological assessments of the participant – the Crown advised that AWSP stated that such records do not exist; ix.

Meeting dates and times for JR with the Crown and any law enforcement agencies – the Crown advised that notes of meetings between JR and the Crown were provided January 21, 2021, and that the Crown is not in possession of any other notes regarding the participant and law enforcement agencies. The Crown further advised that witness protection notes are third party disclosure and subject to the O’Connor regime; x.

Any instance where the participant was in custody after the canvassing of the Letter of Acknowledgement with the participant – the Crown advised that neither the Crown nor AWSP is aware of any instance where the participant was in custody since entering the Program. The Crown promised to disclose any future incidences; and xi. Any source debriefing reports that assisted the WPP members in their planning – the Crown responding that this type of information is subject to absolute confidential informant privilege.

By responding to this request, the Crown is not confirming/denying whether the witness ever had such a status. [ 12 ] On March 10, 2021, Crown counsel provided defence counsel with a 7-page vetted Letter of Acknowledgement. [ 13 ] In response the Crown’s correspondence dated February 18, 2021, Ms. Snukal on behalf of the accused sent correspondence to the Crown on March 11, 2021, seeking further itemized disclosure. Specifically, in relation to the Letter of Acknowledgement, Ms. Snukal suggested that several clauses in the Letter of Acknowledgment had been redacted that should not have been edited.

Specifically, Ms. Snukal sought further information in relation to the Letter of Acknowledgment as follows: i. Two clauses referring to the financial renumeration and expenditures for JR; ii. Clause 7.3 which indicated that JR acknowledges that he has an obligation to disclose information to the Police and the Province and a declaration that he has disclosed certain information that has been redacted.

The same clause indicates that JR acknowledges being responsible for current and future financial obligations that are not payable by the police as part of the provision of protective services, including - and rest of that clause is redacted. iii. Clause 7.15 wherein JR acknowledged that he must testify truthfully and completely at the trial of the accused and that he must answer all Police enquiries in a complete and truthful manner. This clause contains a further agreement regarding the trial that has been redacted that Ms. Snukal sought on behalf of the accused;

iv. Ms. Snukal also questioned why the name of the witness and the date on the Letter of Acknowledgment had beenredacted; and, v. The request for the Threat Assessment and witness protection officer/handler notes was repeated. [14] In response to Ms. Snukal’s March 11th correspondence, Ms. Flaherty as counsel on behalf of the AWSP sent an email toCrown counsel attaching a copy of the Letter of Acknowledgment with some of the redactions removed. Ms. Flaherty also advised thatthe name of the witness on the Letter of Acknowledgement had been redacted by reason of s.11(1)(

c) of the Witness Protection Act. [15] The removal of some of the redactions provided further disclosure to the accused.

Specifically, the accused by reason of theextensive unredacted information came to learn that JR would receive not more that $38,150 for items such as temporaryaccommodation, food, transportation, phone, and medical expenses over the term stipulated by the Letter of Acknowledgment. [16] In relation to clause 7.3 of the Letter of Acknowledgment, the accused learned that JR agreed that he had an obligation todisclose information relating to his outstanding legal obligations, including court orders or arrangements relating to custody or access tochildren, civil or criminal proceedings instigated against him, and his outstanding debts and financial obligations including spousal orchild support.

A further obligation to disclose by JR remains redacted. JR also acknowledged that he remains responsible for current andfuture financial obligations not covered by the police, including the legal fees and administrative costs associated the sale, disposition ortransfer of his assets and property. [17] The redaction contained in clause 7.5 was fully removed.

The previously redacted provision required JR to make himselfavailable and fully cooperate for meetings as required by the Police or Crown as it relates to the upcoming trial. [18] JR’s name was also unredacted including the date of the signing of the Letter of Acknowledgment on March 3, 2021. [19] The accused seek further disclosure. Without limitation, the accused seek the threat assessment completed in relation to theinvestigation, and disclosure of all witness protection officer/handler notes.

The accused also seek that the redactions found in clause 2.3which seems to include financial renumeration and expenditures for JR be removed, and further that clause 7.3(

d) which seem to includeinteractions with the police that would be potentially relevant be unredacted. What disclosure regime applies to the requested disclosure,Stinchcombe or O’Connor? [20] As the parties have ably identified in argument, two different but complementary disclosure regimes govern disclosure incriminal cases: first party disclosure under Stinchcombe, as supplemented by the duties imposed on the Crown and the investigatingpolice in R v McNeil, 2009 SCC 3, and third-party disclosure pursuant to O’Connor.

As Justice Watt explains in R v Pascal, 2020ONCA 287 at para 100, the purpose of each regime is to protect an accused’s right to make full answer and defence, while at the sametime recognizing the need to impose limits on disclosure when required: R v Gubbins, 2018 SCC 44; World Bank v Wallace, 2016 SCC15. [21] Following Stinchcombe, the Crown has the duty to disclose all relevant, non-privileged information in its possession orcontrol, whether inculpatory or exculpatory, unless the information is governed by another regime.

The duty is ongoing, even after trial,and arises from the accused’s constitutional right embraced by s.7 of the Charter to all material which meets the Stinchcombe standard:Gubbins at paras 18-19; Stinchcombe at pp 229; and R v Dixon (SCC), [1998] 1 SCR 244 at para 22. [22] Relevance, as contemplated by Stinchcombe, is a relatively broad concept and has been variously described.

In Dixon, forexample at para 22, the Supreme Court speaks of the reasonable possibility that the undisclosed information might have in meeting thecase for the Crown, advancing a defence, or otherwise in planning the conduct of the defence.

As Justice Rowe indicated at para 19 ofGubbins the Crown’s duty to disclose under Stinchcombe is triggered by request and does not involve an application to the court. [23] While the obligation to disclose is not absolute, being subject to limitations such as privilege, for example, the Supreme Courtmade it clear in Stinchcombe that while Crown counsel must err on the side of inclusion, the Crown need not disclose that which isclearly irrelevant.

When challenged, the discretion of the Crown as to disclosure is reviewable by the Court, and when defence initiatessuch a review the Crown must justify its refusal to disclose.

At the same time, the Supreme Court in Stinchcombe instructed judges tobe guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding ofinformation will impair the right of the accused to make full answer and defence; unless, of course, the non-disclosure is justified by thelaw of privilege. [24] The right to disclosure is therefore broad in scope and encompasses material that may be of only marginal value to theultimate issues at trial: Dixon, at para 23. [25] The use of the phrase “obviously relevant” as described in the applicable legal authorities; including R v McNeil, 2009 SCC 3;R v Jackson, 2015 ONCA 832; R v Black¸ 2011 ABCA 349; and Gubbins, does not create a new or different standard for first partydisclosure other than what was first described in Stinchcombe.

As Justice Rowe stated at para 23 of Gubbins, “In addition to informationcontained in the investigative file, the police must disclose to the prosecuting Crown any additional information that is obviouslyrelevant to the accused’s case.

The phrase “obviously relevant” should not be taken as indicating a new standard or degree ofrelevance...Rather this phrase simply describes information that is not within the investigative file, but that would nonetheless berequired to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, orotherwise consider the conduct of the defence. McNeil requires the police to hand such information to the Crown.” [26] As Justice Watt stated in Pascal at paras 104-107, the prosecuting Crown cannot justify its failure to disclose relevant

material on the basis that the investigating police service failed to supply it; instead, when the Crown receives effective notice ofpotentially relevant materials in the hands of the police, the Crown has an obligation to make reasonable inquiries. The police have acorresponding duty to disclose to the prosecuting Crown all material pertaining to its investigation of the accused, sometimes referred toas “the fruits of the investigation,” Gubbins at para 21, McNeil at paras 14, 22-24 and 52.

The “fruits of the investigation” refers toinformation “generated or acquired during or as a result of the specific investigation against the accused”: Gubbins, at para 22. [27] Beyond the “fruits of the investigation” the police have the duty to disclose to the prosecuting Crown any additionalinformation that is “obviously relevant” to the accused’s case: “Obviously relevant” having a broad meaning that includes informationrelating to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence: Gubbins atpara 23. [28] As Justice Watt succinctly points out at para 107, when determining which disclosure regime applies, a court must considerwhether: i.

The information sought is in the possession or control of the prosecuting Crown; and ii. The nature of the information sought is such that the police or another Crown entity in possession or control of itshould have supplied the information to the prosecuting Crown. [29] As Justice Watt notes, the second question will be answered affirmatively when the information is part of the “fruits of theinvestigation” or is “obviously relevant”.

An affirmative response on either of these issues means that the first party or Stinchcombedisclosure regime applies: Gubbins at para 33. [30] Legal counsel for the AWSP and the prosecuting Crown jointly take the position that the documentation requested by thedefence are neither “fruits of the investigation,” nor “obviously relevant,” and are therefore subject to the third party O’Connor regimemeaning that the accused would have to establish that the disclosure sought is “likely relevant” in the sense that there is a reasonablepossibility that the information is logically probative to an issue at trial.

The difficulty this poses for the accused is that they do not knowwhat the records contain, which hinders their present ability to establish or demonstrate likely relevance. Although this onus cannot besaid to be onerous or significant, it does place an onus on the accused at a higher threshold than what was contemplated by Stinchcombe.This distinction is important because the majority in O’Connor described the threshold test at p.438 as preventing the defence fromengaging in “speculative, fanciful, disruptive, unmeritorious, obstructive and time-consuming” requests.

As one example, Doherty JA inR v Batte, (ON CA), [2000] OJ No 2184, held in the context of a request by the accused for production of thecomplainant’s counselling records in the midst of a prosecution for sexual offending, that it was not sufficient to demonstrate likelyrelevance by merely demonstrating the witness had said something in the past about a subject matter that she could be cross examinedupon at trial, nor does it raise a reasonable possibility that the complainant’s statement will have some probative value as to hercredibility.

The result being that likely relevance was not demonstrated. [31] In support of its position, AWSP filed an affidavit of “John Doe” who is the Witness Security Coordinator for the AlbertaWitness Security Program since April 2012. His affidavit can be summarized for the purposes of this application as follows: i. Witness protection programs have been developed in Canada to effectively deal with serious offences, organizedcrime, and terrorism. Investigations of serous offences and organized crime groups are difficult for law enforcement due to the secrecyinvolved.

Witnesses to crime by organized crime groups often face the risk of serious bodily harm or death as

an act of retaliation forassisting an investigation and testifying in court. The witness protection programs were developed to provide protection from suchretaliation; ii. The AWSP aims to safeguard witnesses in cases of serious threats which cannot reasonably addressed by otherprotective measures; iii. An application must be made by law enforcement and must be on the consent of the witness; iv.

The application is reviewed to determine the seriousness of the offence, the nature of the witness’ evidence andwhether the witness is essential to the Crown’s case, the risk to the safety or security of the witness, the likelihood of the witness beingable to adjust to any conditions that may be incorporated in a Letter of Acknowledgment, the financial and logistical requirements ofprotective services, the availability of providing protective services, whether the witness has been or is applying for any other witnessprotection program, and an factors that the security coordinator feels are relevant; v.

A witness security panel determines whether the witness is eligible for protective services; vi. The provision of protective services expires when the letter of acknowledgment expires or upon the written request ofthe person protected; vii. The security coordinator can recommend termination of protective services to the panel in certain circumstancesincluding a misrepresentation by the protected person, a failure to disclose or a breach of the terms set by the letter of acknowledgment; viii. The AWSP is administered by dedicated witness protection units; ix.

The AWSP must operate covertly to protect a witness location, change of identity, or any other information about themeans and methods by which a witness is protected. The information is prohibited from disclosure; x. Witnesses cooperate when a credible process exists that ensure their safety; xi. Protection services may include relocation, accommodation, change of identity, counselling, and financial support;

xii. The protection of witnesses is administered independently from investigative interests. The witness protection units are separate from law enforcement; xiii. Witness protection units are not conducted to gather or discuss evidence; xiv. Attached to the affidavit of John Doe are the notes of Calgary Police Service members detailing JR’s request for protective services, including an indication that JR said that he had a bounty on his head. JR also said that he was “beat up” because he had cooperated with police in relation to the murder of Karson Goodeagle; xv.

During an interview with police and Crown counsel Mr. Wilson, JR told the Crown and police that he is not asking for anything, but he is doing this because it is the right thing to do; xvi. JR did not ask to receive protective measures in exchange for providing evidence concerning this or any other investigation; xvii. JR was not offered protective measures in exchange for evidence; xviii. The Calgary Police Service had no role in determining whether protective measures would be provided; xix. On December 16, 2021 JR signed rules for applicants awaiting possible admission into the AWSP; xx.

On February 1, 2021 JR was approved to receive AWSP protective services; xxi. On March 3, 2021 JR signed the Letter of Acknowledgment; xxii. Disclosure of expenditures was made on two occasions which provided some generalized itemization of expenditures by category. [ 32 ] The affidavit also detailed objection to disclosure of information and documentation as follows: i. Threat assessment – this document is said to have been gathered to assess potential threats to witnesses, primarily the accused.

It identifies threats to JR so as to assist with appropriate protections, and the AWSP objects to provide the document on the basis that it does not provide any information that would help to assess the credibility or reliability of JR and it reveals the means and methods used to protect a witness; ii. Financial information found in clause 2.3 of the Letter of Acknowledgment – the redacted categorized cost of JR’s participation in the program is objected to as disclosure on the basis that it could be used to determine JR’s location, and it reveals the means and methods of the AWSP used to protect a witness; iii.

Financial information found in clause 7.3(

d) of the Letter of Acknowledgment – the clause relates to the means and methods used by the AWSP to relocate and protect a witness. It is objected to on the basis that it reveals the means and methods of the AWSP used to relocate and protect a witness; and, iv. Witness protection officer notes – objected to because they do not contain information relating to the credibility or reliability of JR as a witness in the criminal proceedings. The notes are said to detail the mechanical steps taken by the witness protection officer in executing the protection plan for JR.

The notes include notations of meeting dates, travel booked for the witnesses, or communications between the AWSP and the witness protection officer.

The AWSP objects to the production of the notes on the basis that the notes reveal means and methods of the AWSP used to protect a witness. [ 33 ] In approximately the last five years no less than three different decisions of this Court have considered whether disclosure of witness protection information should be considered as first party of disclosure or third party disclosure. [ 34 ] In R v Vader, 2016 ABQB 228 , Justice Thomas considered whether the records sought should be considered as “fruits of the investigation” given that Witness Protection Program staff perform no investigative police function.

While Justice Thomas stated that the Court must be responsive to subtle changes between first and third party information as it relates to Crown entities as considered by the Supreme Court of Canada, it is clear that Justice limited his consideration to the suggestion made in R v Quesnelle, 2014 SCC 46 at para 11 , that the police duty was only to supply the Crown with the “fruits of the investigation”. In other words, Thomas J arrived at the conclusion that such records were in the nature of third party records because the information could not be said to be the fruits of the investigation.

As is obvious, Thomas J’s conclusion in this regard pre-dated the clarifications made by the Supreme Court in Gubbins . clarifying the distinction made in McNeil that Crown entities must also provide the prosecuting Crown with any information that must be disclosed under the Stinchcombe first party regime. [ 35 ] In R v Jennings, 2018 ABQB 105 , another pre- Gubbins decision, Justice Shelley held that the Federal Witness Protection Program documents relating to a Crown witness were first party records and subject to Stinchcombe disclosure.

It is important to note that the witness in Jennings actively sought and negotiated protection for becoming a police agent. The witness was therefore actively involved in the investigation and the creation of incriminating evidence.

He was described personally as being a “fruit of the investigation.” As noted by legal counsel for the AWSP in written argument, Shelly J held that “to some degree the WPP files pertain to the conduct of the investigation and the evidence obtained, and that WPP was not completely isolated from the investigative unit but shared a go between relationship such that the WPP records were first party.” Justice Shelly stated at para 35 as follows: 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 were 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 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. [ 36 ] In R v Fischer, 2020 ABQB 67 , the Crown witness was denied emergency protection within the Witness Protection Program, however, she did receive limited assistance under an alternative aid arrangement administered by the RCMP.

This arrangement was said to fall under the WPP ambit. [ 37 ] Justice Ackerl at paras 15-17 noted that the WPP records did not form the “fruit of the investigation” because they were not created because of the police investigation and noted that WPP functioned separate from investigative police functions.

He also noted that existence of legislative separation from the police investigative role; however, recognizing that true relevance must be assessed contextually, Justice Ackerl noted that the obligation to disclose goes beyond the “fruits of the investigation” to what is “obviously relevant to the accused’s case.” [ 38 ] In context, Justice Ackerl held that WPP records are not by their nature, obviously relevant, but he also observed that the witness provided the vehicle to transport the victim to the crime scene and was present when the murder occurred.

Subsequently, the witness was said to have actively assisted the police in locating and confirming the accused’s residences. [ 39 ] Finding that the witness was a material and significant witness, integrally connected to both the police investigation and the prosecution case, Justice Ackerl found the records were in the nature of first party disclosure referring to para 24 -Justice Ackerl stated, “...program funding may improve the lifestyle quality of a program participant. Such funding was ongoing during her preliminary inquiry testimony and concluded shortly thereafter.

These records may have a significant impact upon [the witness’] credibility and reliability as a trial witness. Most obviously, they may inform her motivation to testify in this case”. Justice Ackerl found the records were akin to the disciplinary records of McNeil such that they triggered the Crown’s obligation to make reasonable opportunities to request the information. [ 40 ] In R v Giles, 2021 NSSC 69 , Justice Scaravelli considered an application for disclosure for records held by the WPP related to a co-accused, who had pleaded guilty, provided a KGB statement, and entered witness protection.

The applicant sought disclosure of any agreements between the witness and WPP, information regarding the nature, purpose, and amounts of past or future payments made by the WPP, or demanded by the witness, details of WPP involvement with any Criminal Code offence with which the witness had been charged, information obtained by WPP regarding any false or misleading statements made by the witness, information regarding any consideration give to expelling Bacon from the WPP, details of any conversations concerning the investigation or the witness’ expected testimony, information or statements obtained by WPP that are relevant to the offence with which the applicant is charged, including post-offence conduct, conversations or interactions that involve the circumstances of the offence or the applicant, and all relevant records in the possession of the WPP that are not exempt as prohibited disclosure under s.11(1) of the Witness Protection Program Act . [ 41 ] Justice Scaravelli, following a review of Fischer , acknowledged the decisions prior to Gubbins that treated WPP records as third party disclosure such as R v Le (TD), 2011 MBCA 83 and Vader , before coming to the conclusion that WPP records relating to the credibility and reliability of a key Crown witness are firstparty records.

Justice Scaravelli further noted that those cases which suggest that such records are third party did not have the benefit of the clarification provided by the Supreme Court in Gubbins , which confirmed that disclosure from third parties on a first party basis applies to records that are of “obvious relevance”. Justice Scaravelli also noted that the Attorney General of Canada consented to Stinchcombe production of any financial assistance provided to the witness and information that pertains to any incidents of witness misconduct.

Justice Scaravelli concluded that this position was supported by the British Columbia Court of Appeal in R v Johnston, 2019 BCCA 107 at para 104 : Despite this nuanced position, I consider it possible that Person Y viewed enrollment in the WPP as a benefit, even if the Crown did not. As such, and without determining the issue beyond this first stage of threshold relevance, and subject to the Crown’s assertions of privilege, I conclude that the WPP Records dealing with promises made to Person Y about the WPP, and any of his demands regarding the same, are first party records .

Subject to claims of privilege, there is at least a reasonable possibility that disclosure of these records will assist the appellants in an argument on appeal that the earlier failure to disclose this information was in breach of the Crown duty to disclose all benefits and inducements offered to the witness.

For ease of reference, I will call these the “First Party WPP Records”. [Emphasis added.] [ 42 ] Justice Scaravelli did not agree with the Attorney General that the other requests made by the applicant were subject to the O’Connor regime because the information sought relating to the witness included “medical history, financial, educational, and employment history.” In Justice Scaravelli’s view the Crown had a duty to make reasonable inquiries of the WPP on the basis that WPP was in possession of evidence pertaining to the credibility or reliability of the witness.

Justice Scaravelli further held that the “caselaw suggests a broader range of first party disclosure, covering information relating to inducements and demands, and evidence generally that relates to the credibility and reliability of the witness’s evidence, encompassing all of the requested information subject to s.11(1) of the Act ”. Analysis [ 43 ] As a starting point, a finding that the records sought by the accused are disclosable under Stinchcombe is not a finding that all the information possessed by the AWSP is disclosable.

This is because it is trite law that the state need not disclose any materials that are clearly irrelevant or privileged.

Having said this, consistent with the principles found in Fischer and with Giles , I am of the view that the disclosure sought by the accused is first party disclosure and the prosecuting Crown therefore has as duty to make reasonable inquiries to obtain any records that would be properly disclosable under Stinchcombe, and that these materials should be disclosed. [ 44 ] I agree with the reasoning of Scaravelli J in Giles that interprets Gubbins as making it clear that the prosecuting Crown has an obligation to obtain and disclose materials from the third party AWSP on the basis that the material being sought by the accused constitutes records of “obvious relevance.” While I agree that the AWSP records do not constitute the “fruits of the investigation,” it is obvious that AWSP is in possession of materials pertaining to the credibility or reliability of JR, including information relating to

potential inducements made to the witness and any demands made by the witness, which are of obvious relevance. [ 45 ] Notionally, I do not agree with the prosecuting Crown or the AWSP that the witness protection arrangement sought by JR and provided by the state could properly be considered as having no relevance for disclosure purposes. I say this because the records themselves contextually relate to the protective arrangements made between the state and JR in support of his participation in the murder trial qua witness.

In my view such records cannot be described as peripheral to the prosecution of the accused for murder. As might seem obvious, JR’s credibility and reliability are key considerations in the upcoming trial, and the records that relate to any of JR’s demands, and any of the promises to him, are unquestionably relevant and disclosable. Indeed, the AWSP has voluntarily disclosed some of the requested information, which seems to be at least some tacit acknowledgment of such relevance. [ 46 ] Indeed, it is difficult to understand how it could be otherwise.

Although, I agree that AWSP does not have an investigative function, and I accept that the investigative police agency is separate from AWSP, I would note that the material Crown witness remains, nonetheless, as engaged and protected by the state at his own personal request, and subject to his agreement to abide by a number of state-imposed rules. In this context, it must be remembered that relevance is a broad concept involving the requirement that the Crown disclose material relating to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence.

In the context of first party disclosure only material that is clearly irrelevant may be withheld from defence. It is for this reason, in most instances, that the prosecuting Crown seeks to be over as opposed to under inclusive when providing criminal disclosure. [ 47 ] While I appreciate that AWSP has provided some evidence tending to demonstrate that JR’s testimony at the upcoming trial is not the sine qua non of the protection afforded to him, AWSP’s position regarding the offered protection does not mean that JR views his cooperate testimony as incidental to his continued protection.

I mention this as just one example of the potential importance of the requested disclosure to the defence. [ 48 ] Beyond this consideration, JR in the Letter of Acknowledgment acknowledged that he must testify truthfully and completely when answering any question at any criminal proceedings to which he was subpoenaed, and that he would answer police questioning truthfully, along with a final promise to cooperate with respect to attendance at meetings scheduled with the Crown and the police.

Given this agreement, and the strong incentive that it arguably creates for JR to continue to adopt his KGB sworn statement, even if the sworn statement was untrue, it is difficult to understand the argument made by AWSP and the prosecuting Crown that such records are third party in nature. [ 49 ] Indeed, JR’s present life circumstances are presently under the effective control of the state, and it is on behalf of that same state that JR will testify at trial.

As I have already said, it is difficult in these circumstances to understand the suggestion that the voluntary control of JR’s life circumstances by the state could be said to anything other than obviously relevant, subject of course to statutory and common law privilege. As would seem intuitively obvious, the protective services provided to JR may potentially speak to his motivation to testify and, as such, are otherwise relevant to both his credibility and reliability.

The records are also therefore of a first party nature as potentially speaking to the behaviour and tendencies of the witness. [ 50 ] I conclude that the additional materials sought by defence are first party disclosure, subject to the successful claim of privilege, or upon the Crown establishing that withheld or redacted individual documents on a case-by-case basis are clearly irrelevant.

In particular, the threat assessments would appear to have obvious relevance given my understanding that they contain information regarding the threat posed by the individual accused in this case, which may, in turn, support or not support JR’s assertions that he was beaten and that there is a bounty on his head because the accused’s membership in an identifiable crime group. The monetary breakdown of financial assistance provided to JR is of obvious relevance because it speaks directly to the types of inducements or motivations provided to JR.

As would seem obvious by my ruling, the police notes of the various interactions between police officers and JR, have obvious relevance as they catalogue JR’s critical interactions with the state. Heard on the 25 th day of March, 2021. Delivered orally on the 30 th day of March, 2021. Dated at the City of Calgary, Alberta this 2 nd day of May, 2023. D.A. Labrenz J.C.K.B.A.

Appearances: Ken McCaffrey, QC Scott Wilson Alberta Crown Prosecution Service for the Crown Adriano Iovinelli, QC for the Accused Gabad L Kim Ross for the Accused Noskiye Allan Fay for the Accused Jones Rebecca Snukal for the Accused Turner Hillary Flaherty Deanna Matchett for the Alberta Witness Security Program _______________________________________________________ Corrigendum of the Reasons for Decision of The Honourable Mr. Justice D.A.

Labrenz _______________________________________________________ Para 8 line 2: as is obvious, is an essential Para 8, line 3: the Crown intend to Para 8, line 4: argument in support of Para 9, line 3: response to JR’s Para 20, the decision " R v Gubbins " is cited as " 2019 SCC 44 " changed to " 2018 SCC 44

Para 45, line 7: reliability are going to be key Para 46, line 4: protected by the state ,