R v Badger, 2022 ABKB 686

Court of King’s Bench of Alberta Citation: R v Badger, 2022 ABKB 686 Date: 20221019 Docket: 210573317S1 Registry: Edmonton Between: His Majesty the King Crown - and - Cory Gilbert Badger Accused _______________________________________________________ Reasons for Decision of the Honourable Justice R.P. Belzil _______________________________________________________

Part 1- The Application [ 1 ] The Chief of the Edmonton Police Service (EPS) applies for Intervener Status and for Certiorari following a trial in the Provincial Court of Alberta wherein the presiding Judge directed a Stay of Proceedings. The Crown has filed a

Summary Conviction Appeal (SCA).

Part 1- Factual Background [ 2 ] On June 11, 2021, the EPS received a complaint of a Break and Enter at a residence in Edmonton. [ 3 ] Two officers, Sgt.

Maxwell and Constable Carson attended the scene. [ 4 ] The officers observed an individual, later identified as Cory Gilbert Badger, fleeing the scene and gave chase. [ 5 ] Shortly thereafter, Constable Carson deployed a conducted energy weapon (CEW), commonly known as a taser. [ 6 ] Badger was arrested and charged with one count of Break and Enter contrary to s349(1) of the Criminal Code and Obstruction of a Police Officer contrary to s129(a) . [ 7 ] The trial proceeded in the Provincial Court of Alberta on March 24 th and May 6 th , 2022. [ 8 ] During the cross examination of Cst.

Carson, defence counsel produced a document purporting to be the EPS Policy governing the use of a CEW. [ 9 ] Defence counsel obtained this document as a result of a FOIP request but did not advance an O’Connor application. [ 10 ] When asked if he was familiar with the document, Cst. Carson replied “ it appears to be associated to our policy and procedure”. [ 11 ] EPS was not provided with notice that this document would be tendered at trial and Counsel for the EPS did not participate in the trial. [ 12 ] There was no attempt to authenticate this document. [ 13 ] On May 6, 2022 Judge S.

Shoyele granted a Stay of Proceedings pursuant to s24(1) of the Charter on the basis that Cst. Carson had used excessive force in deploying the CEW. [ 14 ] The Crown filed a SCA on May 30, 2022. [ 15 ] On July 31, 2022 the Chief of the EPS filed an application seeking the following relief: Remedy sought: The Chief seeks intervener status on the following questions: 1.

When is an O'Connor application necessary when putting documents purporting to b e Edmonton Police Service policy to Edmonton Police Service police officers who are testifying and/or seeking to have those documents authenticated by Edmonton Police Service police officers? 2. l s Edmonton Police Service policy relevant and admissible through any witness? 3. Can judicial notice be taken of Edmonton Police Service policies?

The Chief seeks a finding that EPS members cannot be required to authenticate, confirm, or provide EPS policy , or related documents, to the Court without a successfu l third-party disclosure ( O'Connor ) application. The Chief further seeks a finding that EPS policy is irrelevant and inadmissible on the question of whether an accused's person's rights were violated in the course of a criminal inv es tigation. The Chief a l so applies for certiorari to quash the lower court decision to admit the Edmonton Police Service policy in question.

The Chief recognizes that certiorari is a remedy which is imbued with discretion, and thus may be unnece ssa ry if the issues can be addressed by another mechanism, such as granting the Chief intervener s tatus on this

Summary Conviction Appeal. However, the Chief raises both a l ternatives to ensure thoroughness.

As the transcripts of the lower court decision have already been obtained and the file already provided to this Honourable Court for review in the sum mary conviction appeal, the Chief seeks permission to not obtain the same record through a notice to obtain record of proceedings pursuant to Rule 3.18 of the Alberta Rules of Court , as this would be a duplication of effort and potentially create more confusion as the records have, presumptively, already been sent over from Provincia l Court. [ 16 ] With the consent of all counsel, this SCA will be bifurcated.

The following reasons deal only with the issue of whether The Chief should be granted Intervener Status in the SCA. Consequences of not advancing an O’Connor Application [ 17 ] Defence counsel acknowledges that he obtained the document purporting to be the EPS Policy dealing with the use of CEWs as a result of a FOIP request. [ 18 ] I accept that there is nothing inherently improper in counsel obtaining documents through a FOIP request, indeed this is

frequently done. [19] I do not accept however, that obtaining documents through FOIP is a substitute for obtaining records through the wellestablished O’Connor regime. [20] Indeed, this application to add the Chief as an Intervener in the SCA, highlights the limitations of tendering at trial, recordsobtained through FOIP or other sources, without proceeding with an O’Connor application. [21] Tendering a document to a witness at trial obtained outside of the O’Connor regime does not necessarily mean that thedocument can be authenticated.

This is particularly significant when documents purporting to be policy documents, not drafted by thewitness, are tendered. [22] Moreover, relying on the results of a FOIP request is inherently problematic because there is no mechanism to ensure that therecords produced are complete and temporally relevant. [23] In R v McNeil, 2009 SCC 3, the Supreme Court of Canada affirmed the long standing principle that the Crown, as part of itsStinchcombe obligation, must make disclosure of the fruits of the investigation. [24] However, the term “fruits of the investigation” is limited. [25] At para 22 the following passage appears: The Stinchcombe regime of disclosure extends only to material in the possession or control of the Crown.

The law cannot impose anobligation on the Crown to disclose material which it does not have or cannot obtain: R. v. Stinchcombe, (SCC),[1995] 1 S.C.R. 754. A question then arises as to whether the “Crown”, for disclosure purposes, encompasses other state authorities. The notion that all state authorities amount to a single “Crown” entity for the purposes of disclosure and production must be quicklyrejected. It finds no support in law and, given our multi-tiered system of governance and the realities of Canada’s geography, isunworkable in practice. As aptly explained in R. v.

Gingras (1992), (AB CA), 120 A.R. 300 (C.A.), at para. 14: If that line of reasoning were correct, then in order to meet the tests in Stinchcombe, some months before trial every Crown prosecutorwould have to inquire of every department of the Provincial Government and every department of the Federal Government. He wouldhave to ask each whether they had in their possession any records touching each prosecution upcoming. It would be impossible to carryout 1% of that task. It would take many years to bring every case to trial if that were required.

Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused’s case in the possession or control of theprosecuting Crown entity.

This material is commonly referred to as the “fruits of the investigation”. [26] Police Policy documents are not in the possession or control of the prosecuting Crown Attorney. [27] It is well established that the first stage of the O’Connor application involves screening for likely relevance. [28] It is also well established that a party which is the subject of an O’Connor application must make fulsome disclosure to theCourt, records which are likely relevant. [29] In the context of Police Policy documents, this would necessarily involve related policy documents in force at the relevanttime. [30] The presiding Judge would then make a decision as to what records, if any will be produced. [31] The well established O’Connor regime thus ensures complete disclosure of relevant records subject to stage twoconsiderations. [32] Defence counsel argues that an O’Connor application was not necessary because he had obtained the EPS CEW Policy as aresult of a FOIP request. [33] I do not agree.

While defence counsel did obtain “a document” as a result of a FOIP request, it does not necessarily follow thatthe document that he obtained could be authenticated or determined to be complete and in force at the relevant time. [34] At most, he obtained a purported policy document. [35] In Ontario (Provincial Police) v Mosher, 2015 ONCA 722, the Ontario Court of Appeal rejected the use of a subpoena ducestecum at a Preliminary Inquiry to obtain records.

At paras 116 and 117, the Court referred to this procedure as “a colourable attempt tocircumvent the Stinchcombe and O’Connor regimes.” The Intervener Application [36] With the foregoing principles in mind, I will now consider the Intervener Application. [37] In R v Vallentgoed, 2016 ABCA 19 at para 5 and 6 it reads: [5] Intervener status will be granted where the applicant: (1) is directly and significantly affected by the outcome of the appeal, and(2) has expertise and a fresh perspective on the subject matter of the appeal that is useful for the appeal’s resolution: R v Morgentaler, (SCC), [1993] 1 SCR 462 at para 1, [1993] SCJ No 48 (QL); City of Edmonton v Edmonton (Subdivision and

Development Appeal Board), 2014 ABCA 340 at para 8, 584 AR 255. The factors that inform these two questions include (Pedersen vAlberta, 2008 ABCA 192 at para 3, 432 AR 219; Re Stewart Estate, 2014 ABCA 222 at para 5, 577 AR 57): 1. Will the intervener be directly affected by the appeal; 2. Is the presence of the intervener necessary for the Court to properly decide the matter; 3. Might the interverner’s interest in the proceedings not be fully protected by the parties; 4. Will the intervener’s submission be useful and different or bring particular expertise to the subject matter of the appeal; 5.

Will the intervention unduly delay the proceedings; 6. Will there possibly be prejudice to the parties if intervention is granted; 7. Will intervention widen the lis between the parties; and 8. Will the intervention transform the Court into a political arena? [6] The discretion to grant intervener status should be exercised sparingly, particularly in criminal proceedings where the disputemust remain between the accused and the Crown: R v Neve, 1996 ABCA 242 , [1996] 8 WWR 294 at para 16, 184 AR 359 359(CA).

Interventions in criminal appeals are “generally shunned by the courts for a variety of policy and prudential reasons”, especiallythe risk “the the hearing of other voices can distort an appeal”; R v JLA, 2009 ABCA 324 at para 2, 464 AR 310. 1. Will the intervener be directly affected by the appeal. [38] Given that the Intervener controls the issuance of EPS Policy, the Chief is affected by the fact that a purported EPS Policydocument was not authenticated at trial and an O’Connor application was not advanced. 2.

Is the presence of the intervener necessary for the Court to properly decide thematter. [39] The Intervener will be able to authenticate the purported policy document and provide supporting information dealing withEPS Policy documents. 3. Might the interverner’s interest in the proceedings not be fully protected bythe parties. [40] As outlined at trial, neither Crown counsel or Defence counsel raised the necessity of an O’Connor application. Crowncounsel did not have control of the purported policy document. 4.

Will the intervener’s submission be useful and different or bring particularexpertise to the subject matter of the appeal. [41] The Intervener is uniquely qualified to make submissions on the subject of EPS Policy. 5. Will the intervention unduly delay the proceedings. [42] The intervention will not unduly delay the SCA. 6. Will there possibly be prejudice to the parties if intervention is granted. [43] There is no possibility of prejudice to the parties if intervention is granted. 7.

Will intervention widen the lis between the parties. [44] The lis between the parties will not be widened by the granting of Intervener Status. 8. Will the intervention transform the Court into a political arena? [45] Intervener Status will not transform the Court into a political arena. There is no evidence that any political issue will arise onthis evidentiary record. Conclusion

[ 46 ] The Application to grant the Chief Intervener Status in the SCA is granted. Heard on the 13 th day of October, 2022. Dated at Edmonton, Alberta this 19 th day of October, 2022. R. Paul Belzil J.C.K.B.A. Appearances: Michael Dunn for the Crown Micheal Aytenfisu for the Accused Megan Hankewich and Rowan Kunitz For the Edmonton Police Service