R v Porter, 2023 ABKB 197

Court of King’s Bench of Alberta Citation: R v Porter, 2023 ABKB 197 Date: 20230405 Docket: 210076071Q1 Registry: Edmonton Between: His Majesty the King Crown/Respondent - and - Kenneth Thomas Porter Accused/Applicant - and - Athletics Canada Third Party Record Holder _______________________________________________________ Reasons on

section 278 Records Application of the Honourable Justice N.E. Devlin _______________________________________________________ Overview [ 1 ] The Applicant faces numerous allegations of historical sexual assaults against young athletes during his time as a competitive

track coach. He has brought this application seeking third-party records from Athletics Canada concerning these specific complaints and a related internal investigation. The matter proceeded through a full first-stage hearing pursuant to

section 278.4, with each of the five complainants represented by counsel. [ 2 ] For the reasons that follow, the records are ordered to be produced to the Court for judicial review pursuant to

section 278.5(1), have been reviewed, and partially ordered disclosed with an invitation to parties with standing to provide submissions on the terms of disclosure. These are my reasons for the determinations at each stage, as required by s. 278.8(1) Factual background and the Application [ 3 ] The Application was supported by extensive affidavit evidence detailing the factual matrix said to justify disclosure.

This evidence provides support for the following facts and was not disputed. [ 4 ] Prior to criminal charges being laid in this case, the Applicant was the subject of an internal investigation by Athletics Canada, the national sport governing body for track and field. Athletics Canada hired André Marin as its independent investigator. Mr.

Marin is a lawyer who has served as the Director of Ontario’s Special Investigations Unit, mandated to oversee investigations involving police activities resulting in death or serious injury, and subsequently as the Ombudsman for the Province of Ontario. [ 5 ] In the present case, Mr. Marin conducted extensive interviews, including with several of the complainants in this case and related witnesses, concerning allegations of sexual impropriety against the Applicant. Marin subsequently issued a report which resulted in the Applicant being suspended by Athletics Canada.

Several iterations of the report prior to the final version were prepared and varied in length and detail. [ 6 ] Mr. Marin has made statements encouraging prosecution of the Applicant and urging that his report be made publicly available. [ 7 ] The Edmonton Police Service, the charging investigative agency in this case, corresponded with Mr. Marin and Athletics Canada seeking investigative information concerning the Applicant in relation to this investigation. [1] Mr.

Marin provided the lead investigator with a portion of his report in April 2019, writing in the covering correspondence that “This should help you kickstart your investigation.” [ 8 ] That correspondence, together with other correspondence to the Saskatoon Police Service, indicated the existence of recorded interviews with the complainants. [ 9 ] The report prepared by Marin, subsequent to the interviews, appears to have been publicly available at one point, and resulted in extensive media coverage as well as a public decision by Athletics Canada to suspend the Applicant, along with another former coach. [ 10 ] The other suspended individual appealed the suspension imposed by Athletics Canada.

An Arbitrator ruled that Mr. Marin’s investigation was biased and defective in a number of material aspects. [ 11 ] Against this background, the Applicant seeks disclosure of “all material in the possession of Athletics Canada related to” this matter. Specifically, he seeks: a. all final reports, draft reports, working notes, interview notes, audio/visual recordings and any other evidence related to the Athletics Canada investigation; and b. all internal correspondence related to the investigation, including all correspondence involving Mr.

Marin, Athletics Canada staff, and all potential complainants, witnesses or others. [ 12 ] Athletics Canada responded to the subpoena served on it pursuant to

section 287.3(5) by providing three large binders of materials and a volume of electronic files comprising the video recorded interviews conducted by Mr. Marin. The process [ 13 ] The process to seek and obtain third-party records in cases concerning sexually based offences is governed by sections 278.1 to 278.8 of the Criminal Code . It involves multiple stages, beginning with an application to have the documents produced to the Court for private review by the application judge (s. 278.3).

When that application is brought, the Court must hold an in camera hearing to determine whether the recordholder ought to produce the records sought for judicial review (s. 278.4). Complainants in the underlying prosecution have a statutory right to appear at the first-stage hearing and to be represented by counsel if they wish (ss. 278.4(2-2.1)). [ 14 ] The application judge must determine whether the records should be produced for judicial review in accordance with the factors enumerated in sections 278.3(4) and 278.5.

The test for initial production requires the applicant to satisfy the Court that the application is: (

i) brought in accordance with sections 278.3(2-6); (ii) that the records are likely relevant to an issue at trial or to the competence of a witness to testify; and (iii) that production of the records is necessary in the interests of justice. Likely relevance is the real touchstone of most such applications, as is the case here. [ 15 ] If the records are ordered to be produced for judicial review pursuant to s. 278.5, the application judge reviews the records privately to determine whether they should be disclosed to the accused in whole or part.

The application judge may decide to hold a further in camera hearing, involving all the parties with a right of audience at the first stage, if he or she feels that such submissions will assist in determining the extent and terms of production (ss. 278.6(1-3)).

[ 16 ] Finally, where the application judge determines that any of the records are likely relevant and that their production is in the interests of justice, he or she may order those records disclosed to the accused, subject to conditions crafted to protect the privacy, personal security, and equality interests of the complainant, other witnesses, or third parties to whom the record relates (ss. 278.7(1-3)).

Position of the Parties The Applicant [ 17 ] The Applicant argues that the investigative interviews conducted by and on behalf of Athletics Canada involve the complainants in this case discussing, and being interviewed about, the very subject matter of the charges before the Court, by a professional investigator, conducting a quasi-public inquiry. They argue that this makes the relevance of the materials self-evident.

They further argue that these records have little privacy interest attached to them, given their explicitly investigational and quasi-public context. [ 18 ] The Applicant further argues that, since these interviews were used to craft a report which has subsequently been criticized by an arbitrator as exhibiting significant bias, the communications internal to Athletics Canada, both to and about the investigation and investigator, including the draft reports, are also likely relevant to potential collusion or cross-contamination of evidence between complainants.

The complainants [ 19 ] Each of the five complainants exercised their right to retain counsel and make submissions at the first-stage hearing. Each one of them advised the Court that they took no position on production of the records for judicial review. The Crown [ 20 ] The Crown opposes the production of the records. It asserts principally that the fact that these records involve the complainants discussing the subject matter of the charges, and may thus disclose prior inconsistent statements, does not satisfy the test for likely relevance, relying on sections 278.3(4)(c-d).

The Crown points out that there is “no evidence that any of the complainants’ allegations have become amplified because of the Athletics Canada investigation”, nor that there are any demonstrated inconsistencies between the complainants’ disclosed police interviews and the interviews conducted by Mr. Marin. [ 21 ] The Crown further argues that there is no evidence that any of the potential communications between Athletics Canada and police authorities in this case could be likely relevant. Analysis [ 22 ] The

section 278 regime seeks to resolve the tension between the right to full answer and defence and the right of complainants and witnesses to privacy, dignity, and equality: R v Mills , [1993] 3 SCR 668 at para 17 . Unlike the O’Connor process, this statutory scheme expressly requires a balancing of rights at the initial production stage: R v O’Connor , [1995], 4 SCR 41 . [ 23 ] This case is unusual in that the lion’s share of the records sought are explicitly investigative interviews, gathered and recorded in an evidentiary manner, and undertaken with an eye to public sanctions for misconduct by the Applicant.

Similarly, the records were not made for collateral purposes, such as the furtherance of a therapeutic relationship. Rather, they directly concerned the incidents charged and led or contributed to the existence of the criminal prosecution. This case is thus entirely unlike those in which third party disclosure applications seek to trespass into private, personal spheres far removed from the issues at hand in the prosecution.

It was this invasive nature of third-party applications in sexually based offences in particular that led Parliament to enact the safeguards in s. 278. [ 24 ] The s. 278 procedure is not a device to be leveraged for tactical advantage by the Crown in shielding complainants or witnesses from proper cross-examination or scrutiny.

Rather, it exists to level the playing field between the rights of all justice system participants, and to protect these individuals from having the right of disclosure weaponized against them. [ 25 ] The onus is on the Applicant to satisfy the Court that the requirements of s. 278 are met at all stages. This onus is not, however, a presumption against production and disclosure. To the extent that this has been suggested, in cases such as R v S(GJ) , 2007 ABQB 757 at para 12 , I respectfully disagree.

Indeed, in Mills itself at para 132, the Supreme Court noted that: [i]f a record is established to be “likely relevant” and, after considering the various factors, the judge is left uncertain about whether its production is necessary to make full answer and defence, then the judge should rule in favour of inspecting the document. As L’Heureux-Dubé J. stated in O’Connor , supra , at para. 152, “[i]n borderline cases, the judge should err on the side of production to the court”.

The interests of justice require nothing less. [ 26 ] It must be remembered that, at this stage of the third-party records process, the accused is mostly operating in the dark, compelled to construct arguments for likely relevance without access to the documents in question. Consequently, to maintain a constitutionally sound

interpretation of these provisions, the likely relevance standard is “significant but not onerous”: R v McNeil , 2009 SCC 3 at para 29 . Rather, this is a screening mechanism for unwarranted fishing expeditions: R v Gubbins , 2018 SCC 44 at paras. 27-28 ; R v Jackson , 2015 ONCA 832 at para 128 . That threshold is met in this case.

Stage 1 – Production for Judicial Review [27] There is no dispute that the application is compliant with ss 278.3(3) to (6). Likely Relevance [28] The evidence tendered in support of this application demonstrates that Athletics Canada possesses lengthy, detailed, recorded,investigative interviews with some of the complainants about the incidents in question. This material is not likely relevant, it is seminallyrelevant. One need only consider how identical material created by a state agency would be treated under a Stinchcombe analysis tounderstand the legitimate defence interest in this material. [29] The Crown’s opposition to production of those records is premised on the misreading of

section 278.3(4) the Supreme Courtcautioned against in Mills at para 118, where it emphasized that the list of ‘insufficient’ grounds in s. 278.3(4): ...does not entirely prevent an accused from relying on the factors listed, but simply prevents reliance on bare “assertions” of the listedmatters, where there is no other evidence and they stand “on their own”. [original emphasis] [30] In simple terms, the fact that a bare assertion that a record “may relate to the incident” and contain statements about it by thecomplainant are insufficient per se to justify a finding of likely relevance does not mandate the Court to ignore the nature and context ofthose statements shown in the applicant’s evidence: Mills at para. 120. [31] In terms of their nature, the statements sought in this case appear to be recorded and thus highly accurate and first-handstatements.

They are also likely to be thorough and detailed. The relevant context is that the complainants and witnesses participatedvoluntarily in a quasi-public fact-finding exercise by an independent investigator, done for the express purpose of gathering facts todetermine whether the Applicant was guilty of misconduct. These facts suggest that the records are highly probative, on-point to theallegations rather than touching on them collaterally, and were given in a situation where honesty was sought and expected. [32] There is really no question as to the relevance of these records.

The Applicant does not have to show that the statements inquestion “amplified” or varied from other disclosed statements. Indeed, it would be impossible for them to do so at this stage. Settingsuch a burden on the Applicant would render it virtually impossible for an accused to access any statements about the incident made tothird parties, even for private judicial review. Creating such an insurmountable hurdle would render s. 278.2 an unconstitutionalinfringement of

section 7 of the Charter, and is contrary to what the Supreme Court called for in Mills, at paras 117-118 and 138. [33] As regards the reports produced for Athletics Canada, and the correspondence relating to it, I am satisfied these also meet theproduction threshold for several related reasons. These materials are in large measure the genesis of the case against the Applicant, thecreator of the reports had contact with several of the complainants, and the product of those contacts has been criticized as biased andunfair to the Applicant.

It is not difficult to conjure legitimate concerns over how this process may have impacted subsequent complaintsto the police. Balancing of relevance and privacy factors [34] In addition to a finding of likely relevance, the decision whether to order production for judicial review also requires theapplication judge to consider the rights and interests of those affected by disclosure: Mills at para 126.

Section 287.5(2) enumerateseight factors the Court must take into account at this stage. I address each of these factors below: a. Extent to which full answer and defence are implicated. [35] The investigative interviews sought fall at the very core of the right to full answer and defence. At this stage, the accused neednot proffer evidence that those interviews contain impeachable inconsistencies.

The nature and context of these records is sufficient toestablish their relevance to the defence. [36] The Crown relies on the decision of Doherty JA in R v Batte (2000), 49 OR (3d) 321, (ON CA) for theproposition that not all statements made by a complainant about the incident are necessarily relevant. That holding must be understood inthe specific context of that case, where therapeutic counselling records were sought on the basis of nothing more than that they likelycontained the therapist’s recording of some discussion about the incident.

Notably, Doherty JA explained that a third-party record of thisnature “gains relevance only if it is admissible in its own right or has some impeachment value”. Batte at para 77. Critically, given thatthe applicant cannot have seen the record at this stage or know its exact contents, “impeachment value” does not mean the pre-determined existence of a contradiction, but rather that the form, timing, and context of the statement makes it potentially usable infurtherance of impeachment at trial. [37] All three consideration militate in favour of production in this case.

To begin with, the main records sought are in factstatements by the complainants themselves, as opposed to an intermediary’s shorthand recording thereof. These could well compriseadmissible evidence in their own right. Ironically, it is not difficult to conceive of the Crown seeking their admission under the principledexception if one of the complainants were to become unavailable: R v B(KG), (SCC), [1993] 1 SCR 740; R vKhelawon, 2006 SCC 57.

Thus, these statements have demonstrably greater impeachment value than informal third-party recordings ofthings supposedly said by a potential witness. [38] Second, these were pre-charge statements, made closer in time to the events, and represent the first statements made infurtherance of any sort of investigation into the incidents. Their status as the foundational complaint imbues them with relevance andmakes it important for the Applicant to be able to compare them with the allegations as advanced at trial.

[39] Finally, the context in which these statements were made suggests that they likely compromise complete narratives of theincidents, rather than isolated statements about them.

This increases their impeachment value compared to circumstances in which smallfacets of the allegation, or personal details about a complainant, are recorded in isolation and may require significant additionalinformation and explanation in order to be probative or properly understood. [40] Again, it is important to remember that, at the first stage, the applicant is not expected to demonstrate that the records soughtwill provide actual impeachments or exculpatory evidence at trial, but rather that they are likely relevant to trial issues, of whichcredibility and reliability of testimony are often foremost in trials involving historic claims of abuse. [41] Marin’s report, in its draft and final form, together with institutional correspondence surrounding it, are not as core to thedefence in this case but may nevertheless be relevant to issues of complainant cross-contamination, especially given its inflammatorytone.

Simply put, it would feel unfair to absolutely deny the Applicant access to this material, even if it ultimately serves only duediligence purposes. It must be remembered that “likely relevant” is not the same as “likely helpful”. Allowing the defence to fullyevaluate what defences and lines of exculpatory inquiry it may have at trial is a significant function of disclosure. That purpose continuesto hold force in the s. 278 process. b. Probative value of the records [42] Recordings of the complainants speaking in detail about the events in question are highly probative.

If the other recordscontain the sort of material anticipated, they may also be probative to issues of witness contamination and the evolution of theprosecution. c. Nature and extent of the reasonable privacy expectations in the records [43] The records in question here have a little or no privacy expectation attached to them. The complainants all opted tovoluntarily speak, on the record, with an ostensibly neutral investigator who owed them no duties of confidentiality, for a report that was,at least briefly, made public.

The non-private nature of these interviews is reflected in the fact that not a single complainant opposedproduction of these materials for judicial review. [44] The iterations of the report itself have little privacy expectation in them, as they were intended for use by a quasi-publicorganization and were made public, or were intended to be made public, at some point in the past. They may contain personal details notrelevant to this case as the investigation by Athletics Canada concerned a second individual in addition to the Applicant.

The internalcorrespondence of Athletics Canada are corporate communications of a nature to which the privacy and equality concerns animatingsection 278 generally do not generally apply. Athletics Canada did not oppose their production. d. Presence of any discriminatory beliefs or biases underlying the request [45] No discriminatory beliefs or biases underlie the request. I would note that finding likely relevance in the prior statement of acomplainant does not imply that they are likely to have changed their story. e.

Potential prejudice to the personal dignity of third parties [46] None of the records in question were made in circumstances of privacy, vulnerability, or confidentiality.

At this stage ofproduction, there is no reason to believe that they contain private personal or medical information that would impact upon an individual’sdignity, outside of the allegations which comprise the charges against the Applicant and which are already disclosed in the prosecution.Interviews with parties unconnected to this case are likely identifiable, and can be excluded from disclosure, without their contents evenbeing viewed, minimized any further publication of those individuals’ experiences. f.

Societal interest in encouraging reporting of sexual offences [47] Production of the records in question would not discourage reporting of sexual offences. It is apparent from the circumstancesthat the complainants each freely chose to tell their story in this forum in the hope that something would be publicly done about it. Therelease of these statements, and associated corporate records, to the Applicant was easily foreseeable. Again, the complainants’ positionreflects this reality. [48] Complainants have, and must be accorded, full agency by the Courts.

All complainants will have a unique approach andreaction to the reporting choice and process.The participation of these complainants in the Athletics Canada process speaks to theirconsidered decisions to address these events openly and quasi-publicly. In these circumstances, examination of these records by theCourt does not act to discourage reporting of sexual offences in this case or at large. g.

Society’s interest in encouraging the obtaining of treatment by complainants of sexual offences [49] This consideration is not engaged, as this case is far removed from scenarios in which an application for records could beperceived as creating an odious choice for victims of sexual offences between receiving therapeutic assistance and getting justice. h. The effect of the determination on the integrity of the trial process [50] The failure to even judicially examine these records would raise concern about the integrity of the trial process.

The right offull answer and defence is a “core” principle of fundamental justice: Mills at para 94; Re BC Motor Vehicle Act, (SCC),[1985] 2 SCR 486, at p. 502; Dersch v. Canada (Attorney General), (SCC), [1990] 2 SCR 1505. It is abrogated atgreat cost to the administration of justice: Mills at para 70. In this case, this factor weighs strongly in favour of ordering production. Conclusion on Stage 1

[ 51 ] The materials sought are likely relevant and their production engages almost none of the values mitigating against intrusive third-party production. The records are ordered produced for judicial review. Judicial review – Stage 2 [ 52 ] Having received and reviewed the records, the Court must re-examine the same questions of likely relevance and the interests of justice as are engaged at Stage 1, though with the benefit of having the records in-hand. The Court must again be mindful of the factors enumerated in s. 278.5(2)(a-h).

While s. 278.6(2) permits the Court to convene a further in camera hearing in respect of disclosure of the records, in this case I found that further submissions would not assist in making the necessary determination, with one exception discussed below. [ 53 ] The interviews with complainants and related witnesses are relevant and denial of their disclosure to the Applicant would be fundamentally inconsistent with

section 7 of the Charter . They are ordered disclosed. [ 54 ] Athletics Canada produced interviews with individuals other than the complainants in this case, concerning allegations against another person. Those are not relevant. Correspondence related to those complainants are also not relevant. [ 55 ] Of the administrative correspondence provided, only a small portion bears on the case in any material way. This correspondence engages no privacy interests and may shed light on the background of the process. These records are ordered disclosed.

The balance are irrelevant. [ 56 ] The draft and final reports are relevant in so far as they summarize and analyse the allegations and to some extent their interrelationship. At a minimum, they are a helpful adjunct to understanding the interviews and the interviewer’s perspective. I find that they have sufficient likely relevance on this basis. Moreover, the final report also contains the details of non-recorded communications with other accusers and witnesses. Its

summary of these statements make it relevant. [ 57 ] Finally, the language used in all iterations of the report supports the concerns animating the application for their disclosure discussed above. They are likely relevant to at least the full and proper preparation of the case. [ 58 ] The iterations of the report contain summaries of alleged abuse by and against individuals unrelated to this case. This imbues these documents with some privacy concerns.

It is my understanding from the application materials, however, that the identities of these individuals, and some of the details of their complaints, have been made public and/or are otherwise known. Some have been referred to in an anonymizing fashion in the report itself. Editing the report is not a workable or necessary solution. Rather, those privacy concerns can be addressed through stringent disclosure conditions.

On balance, the interests of justice are best served by disclosure of these materials to the Applicant. [ 59 ] The same considerations in relation to the probative/privacy facts considered at Stage 1 apply here as well, and in the same terms. Additionally, the records reveal that a number of the individuals who have made complainants against the Applicant have done so publicly, including on Twitter. One of the individuals interviewed who alleged abuse against the Applicant is not a complainant in this prosecution. He has identified himself publicly, however, and is potentially a relevant witness.

Thus, his interview is also disclosable as relevant and in the interests of justice to be provided. [ 60 ] The records also contains details of a non-recorded interview with a witness who provided evidence of rumours he was aware of and conversations he had with the Applicant. This material is also disclosable as likely relevant and raises no privacy concerns. [ 61 ] From the table of contents of the production provided by Athletics Canada, the following numbered items are to be produced: tabs 4, 9, 13–19, 23, 24, 25, 29, 30, and 34. The remaining records are not relevant.

A copy of the disclosable records shall be provided to the prosecutor pursuant to

section 278.7(4). Disclosure terms [ 62 ] A disclosure order made pursuant to this regime must protect the dignity, privacy, and equality rights of the complainants and other impacted parties to the greatest extent compatible with the established need for disclosure: s. 287.7(3).

Therefore, the following conditions are imposed: i. copies will be produced to the relevant parties and originals retained by Athletics Canada; j. no party or lawyer shall disclose the contents of any records to any other person, except with the prior approval of the Court, or during court proceedings; k. the Applicant may review these records only in the presence of counsel, at counsel’s office; l. copies of the records shall be kept in the custody of counsel at all times, and not shown to any individual other than the Applicant or another member of the legal staff with conduct of this case; m. no record, or part of any record, maybe transmitted, posted, or electronically reproduced in any form without further Order of the Court; n. a single, working copy of any written record may be made by counsel, but shall also not leave their custody and be used only for purposes of trial preparation;

o. audio or video documents, shall not be copied without permission of the Court; p. subject to further direction of the Court, and processes of appeal being complete, all copies of these records shall be destroyed at the end of the trial; q. the records may not be used for any other purpose, including in any other action, without further Court Order. [ 63 ] The complainants, Crown, and Athletics Canada are invited to suggest any further conditions, or modification of these conditions, by way of letter to the Court within 15 days of receipt of these reasons.

Copies of the specified records shall not be disclosed until after this time has elapsed and any resulting steps are completed. Heard January 9, 11 and March 8, 2023. Dated at the City of Edmonton, Alberta this 5 th day of April, 2023. N.E. Devlin J.C.K.B.A. Appearances: Chantelle Washenfelder for the Crown Solomon Friedman and Fady Mansour for the Accused/Applicant Kent Tesky, KC for Record Holder Athletics Canada Laura Matalas for Complainant No. 1 Caitlin Bullerkist for Complainant No. 2 Austin Corbett for Complainant No. 3 Michael Mussieux for Complainant No. 4 Michael Aytenfisu for Complainant No. 5

[1] The documents sought on this application are not in the possession of the Crown or police.