R v Scott, 2023 ABCJ 119

In the Alberta Court of Justice Citation: R v Scott, 2023 ABCJ 119 Date: 20230529 Docket: 210608204P1 Registry: Red Deer In the Matter of an Application for Disclosure Between: His Majesty the King Crown (Respondent) - and - Christopher James Scott Accused (Applicant) - and - Alberta Health Services, Office of the Chief Medical Officer, Alberta Gaming and Liquor Commission Board, Alberta Justice, Office of the Premier and Attorney General of Canada (representing the Royal Canadian Mounted Police) Respondents Reasons for Decision of the Honourable Justice J.A. Glass [ 1 ] This is an application brought by Mr.

Scott for further disclosure of documents alleged to be in the possession of the Crown and the named Respondents. The issue arose during cross-examination of an investigator during the voir dire at trial. This resulted in an Order, by consent, for the Crown to provide further first party disclosure. That disclosure was provided by the Crown and Mr.

Scott submits that there is clearly further documentary disclosure that is relevant to his Charter Application in the possession of one or all of the Respondents. [ 2 ] The Crown and the Attorney General of Canada, for the RCMP, have provided additional first party disclosure to Mr. Scott.

Beyond what has been provided, the Crown and the Attorney General of Canada submit that they have no other disclosure to provide and that if there is further disclosure to be provided, it is in the possession of the other Respondents. [ 3 ] The AHS appeared and indicated it opposes any further order for disclosure. [ 4 ] All parties were provided with the opportunity to file written briefs and make oral submissions to the Court on April 12, 2023. The parties agreed that the sole decision for the Court at this hearing was to determine whether the records requested by Mr.

Scott were first party or third-party records. Depending upon their classification, further argument may be required. I reserved my decision, and these are my reasons. Background [ 5 ] Mr. Scott faces a series of charges regarding alleged violations of the Public Health Act and the Gaming, Liquor and Cannabis Act spanning the dates of January 23, 2021 to April 23, 2021. [ 6 ] Mr. Scott has filed Charter and Constitutional Notices and the trial proceeded on a truncated basis by agreement of counsel and the court on August 30 and 31, 2022. The Crown has largely called its case.

However, in testimony from AHS Public Health Inspector Ian Plischke it became apparent that other disclosure might be available that had not been previously provided. By agreement, the court ordered the production of the additional disclosure and that disclosure has been provided. The Order specifically directed that Mr. Plischke provide correspondence, including emails, that he sent, received, or was copied on, as well as handwritten notes regarding Mr. Scott or the Whistle Stop Restaurant between the dates of December 11, 2020 and April 30, 2021. [ 7 ] The evidence of Mr.

Plischke that resulted in the order was as follows: (Transcript of proceedings, August 30, 2022, Page 70, Lines 33-41) Q Fair. Now, prior to January 22nd, sir, when you went out and performed at least your first inspection to which we received copies of the reports, were there any internal meetings, Alberta Health Services, about Chris Scott or the Whistle Stop? You mentioned that you had discussions with your manager. And who -- sorry, who's your manager? A The manger is Zaheen Nanji. Q Okay. And your director is David Brown. Is that correct?

A That's right. (Transcript of Proceedings, August 30, 2022, Page 71, Lines 1-33) Q Okay, that's fair. Did you folks have any internal discussions about Chris and the Whistle Stop prior to your first on-site inspection? You -- you must have because you clearly made a decision to go out and do that, so you did have discussions. Is that right? A I would assume we did. I cannot recall. Q Okay. But earlier, sir, you did recall that you had formed some sort of consensus, so either you recall that you did or you don't. And it's got to be one of the two. Right?

So in thinking back, do you recall any previous internal meetings to discuss Chris and the Whistle Stop prior to your first inspection? A I don't recall the meetings. Q You do not recall. That's fair. And you didn't take any notes?

A I don't believe so. Maybe informally. Q So you take notes of your inspections – A M-hm. Q -- and it's your job to keep records, I would imagine, as an AHS inspector. Why would you not have taken any notes of any meetings to – A So the way we operate, it's email, on the phone, in the office discussing, and it's – Q So you would have had email correspondence, then, with David Brown and your manager prior to going out there. Correct? A I can't say specifically if I did. Q Okay, but you just said that you would discuss by email. A In general, that's how our department communicates. Q Okay.

So it's fair to say that there would likely be email correspondence between you and your manager or Mr. Brown in respect of the Whistle Stop prior to you going out there? A Likely. (Transcript of Proceedings, August 31, 2022, Page 72, Lines 6-31) Q MR. WILLIAMSON: Mr. Plischke, were any memoranda, memos, or notes taken at these meetings? THE COURT: The AHS ones with the 30 inspectors? MR. WILLIAMSON: That's right. THE COURT: Yes, okay. A Yes.

Q MR. WILLIAMSON: Did you provide those to the police? A No. Q Did you provide those to the Crown? A I did not. Q Sir, was Deena Hinshaw involved in those meetings? A No. Q Was any member of the Alberta government external to AHS involved in those meetings? A Not that I recall. Q Any member of cabinet involved in those meetings? A No. [ 8 ] The disclosure was provided and consisted of 698 pages of email records. [ 9 ] Mr. Scott then brought this application for further disclosure and, in particular, asked for the following:

i) Full and complete disclosure of all internal email correspondence, notes, text messages, meeting notes, meeting agendas, meeting memoranda within AHS relative to the Applicant from December 1, 2020 through to May 11, 2021. ii) Full and complete disclosure of all internal email correspondence, notes, text messages, meeting notes, meeting agendas, meeting memoranda within the AGLC relative to the Applicant from December 1, 2020 through to May 11, 2021. iii) Full and complete disclosure of all email correspondence, notes text messages, meeting notes, meeting agendas, meeting memoranda between AHS and the Office of the Chief Medical Officer of Health relative to the Applicant from December 1, 2020, through to May 11, 2021. iv) Full and complete disclosure of all email correspondence, notes text messages, meeting notes, meeting agendas, meeting memoranda between AHS and the office of the Premier of Alberta (including his designated subordinates) relative to the Applicant from December 1, 2020, through to May 11, 2021.

v) Full and complete disclosure of all email correspondence, notes text messages, meeting notes, meeting agendas, meeting memoranda between AHS and the Alberta Justice relative to the Applicant from December 1, 2020, through to May 11, 2021. vi) Full and complete disclosure of all email correspondence, notes, text messages, meeting notes, meeting agendas, meeting memoranda between AHS the RCMP relative to the Applicant from December 1, 2020 through to May 11, 2022. vii) Full and complete disclosure of email correspondence, notes, text messages, meeting notes, meeting agendas, meeting memoranda between AHS and the AGLC relative to the Applicant from December 1, 2020 through to May 11, 2022. viii) Full and complete disclosure of the RCMP actions relative to the Applicant leading up to his May 8, 2021 arrest, and imprisonment for three days afterwards.

This includes but is not limited to officer notes, body camera footage, and any other relevant disclosure from the date of the last alleged offence through to May 11, 2021. Position of the Parties

[10] Mr. Scott takes the position the above sought after records are first party records and fall under the disclosure principlesenunciated in R. v. Stinchcombe, (SCC), [1991] 3 SCR 326. He argues that, given the unique prosecution and facts ofthis matter, that the Crown encompasses the prosecuting Crown and all other Crown entities noted in his application given the level ofcooperation between all of these entities in the prosecution of Mr. Scott. Mr.

Scott also argues that the restrictions imposed and theenforcement actions taken were political in nature, and particularly interfered with his commercial insurance contract, his commercialtenancy agreement, and resulted in the revocation of his liquor license. Mr. Scott argues that additional disclosure is required to makefull answer and defence, as the material sought is necessary to meet the Crown’s case, raise a defence, or consider the conduct of theDefence. [11] The Crown argues that Mr.

Scott’s application conflates two separate and distinct enforcement procedures and the Charterrelief sought relates to a great extent on Mr. Scott’s treatment by the authorities related to his arrest for the unrelated civil contemptproceedings. Further, the Crown submits that the application lacks the necessary evidentiary basis to be either first party or third-partydisclosure. The Crown does make two narrow concessions in this application:

i) The Crown will look for and produce any communications that were exchanged by the Alberta Crown Prosecution Service to theRCMP with respect to charge recommendation. This would be first party disclosure; and ii) The Crown will look at whether or not there is likely relevance in regard to the meetings of the thirty Alberta Health Serviceinspectors that were referenced by Mr. Plischke in his testimony. This will be limited to the Alberta Crown Prosecution Service only. This would be third party disclosure. [12] Further, the Crown submits that Mr.

Scott has failed to adduce any evidence to show that the Crown has acted based onpolitical motivation or interference in the conduct of its prosecution and that there is no evidence that any records support the allegationsof political interference in the decision to prosecute Mr. Scott in this matter. The Crown also argues that there is no evidence that any ofthe other entities named in this application influenced or pressured the Crown in any way regarding the prosecution of this matter. [13] AHS argues that the minutes and notes sought relate to operational matters not specific to Mr.

Scott or the Whistle Stop andare not disclosable, as first or third-party records. AHS submits that Mr. Scott has not established an evidentiary foundation for the typeof records sought. AHS submits that all of the records sought by Mr. Scott from AHS are third party records. Further, AHS submits thatthere is no evidence that AHS acted outside of its authority or acting improperly by coordinating the enforcement actions of otheragencies, including the RCMP and the AGLC. The AHS submits that Mr.

Scott mischaracterizes the e-mail exchanges expressingfrustration with the Chief Public Health Officer and the Premier, which in any event constitutes idle “shop talk.” There is no evidencethat any of the public health inspectors made any contact with either of these entities. [14] The Attorney General of Canada, representing the RCMP, submits that it is prepared to provide additional, first partydisclosure relating only to the regulatory prosecution between the dates of December 1, 2020 and May 1, 2021, and has in fact providedthat information already to Mr. Scott.

The RCMP is opposed to providing any other disclosure, particularly as it relates to thecircumstances of the civil contempt proceedings that Mr. Scott was subject to on the basis that it is irrelevant to this prosecution andwould be a collateral attack on those separate proceedings. Further, it argues that any documents following May 1, 2021 would be thirdparty disclosure. Law [15] All parties agree that the Supreme Court of Canada described the relevant test for determining whether the records sought are“first party” or “third party,” in the decision of R. v.

Gubbins, 2018 SCC 44, at paragraph 33: . . . [T]o determine which regime is applicable, one should consider:

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

(2) Is the nature of the information sought such that the police or another Crown entity in possession orcontrol of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified asbeing part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for theapplication of the first party disclosure regime. Otherwise, the third party disclosure regime applies.

Analysis [16] Apart from the Crown and the RCMP’s limited concessions noted above, it is my view that the balance of the disclosuresought by Mr. Scott is not in the possession or control of the prosecuting Crown, in this case Mr. MacKenzie K.C.. I am entitled to relyupon his representation that he is not in possession of these documents and I have certainly not been provided with any evidence tosuggest that Mr. MacKenzie K.C. has mislead the Court in this representation. I fully accept the “Shawcross principle” of prosecutorialindependence that is a constitutional convention in Canada.

I agree that not one scintilla of evidence has been provided to me to suggestthat the Crown in this case has been improperly influenced in its prosecution of Mr. Scott. Further, I have no evidence that Mr.MacKenzie K.C. has violated his professional ethics or quasi-judicial function that he holds as a prosecutor. [17] I specifically disagree with Mr. Scott’s submission that given the coordination between various government bodies, that theyare a single prosecuting entity subject to the first party disclosure regime. The Crown is the only entity named by Mr. Scott in hisapplication that is the prosecuting agency.

The other entities are either regulatory, investigatory, or political and none of them is bringingthis prosecution. Further, I do not find anything wrong with these entities in working together and coordinating their efforts to enforcethe legislation they are responsible for and to make reasonable efforts to bring Mr. Scott into compliance. [18] I also must consider whether the information sought is such that the police or another Crown entity in possession or control ofthe information ought to have supplied to the prosecuting Crown. I need to consider if this information can be qualified as fruits of the

investigation or obviously relevant. I also must be satisfied that there is an evidentiary basis that these records even exist. i. Full and complete disclosure of all internal email correspondence, notes, text messages, meeting notes, meeting agendas, meeting memoranda within AHS relative to the Applicant from December 1, 2020 through to May 11, 2021 [ 19 ] This request is broader than that which was made and agreed to at the trial that resulted in the disclosure of the information by Mr. Plischke. This request extends to all AHS employees and expands the time frame to include the civil matters involving Mr.

Scott. [ 20 ] In my view, subject to my comments that follow, the additional notes and minutes sought from the AHS, if indeed they exist, have not been shown to be anything more than “operational records” and not specific to the Scott investigation ( Gubbins , at para 35 ). On careful review of the e-mail records, Mr. Scott has not established either that these additional documents are the fruits of the investigation or obviously relevant. Accordingly, they are not first party disclosure. [ 21 ] However, in relation to the email located at page 251 of Ms.

Williamson’s Affidavit, regarding Enforcement Discussions and Mr. Plischke’s evidence that these meetings occurred regularly, it is my view that emails or notes that are specifically of that nature would be classified as third-party disclosure and would be the only documents that would be the subject of a third-party disclosure application. [ 22 ] In addition, disclosure of these documents would only be for the period of December 1, 2020 to April 30, 2021. ii.

Full and complete disclosure of all internal email correspondence, notes, text messages, meeting notes, meeting agendas, meeting memoranda within the AGLC relative to the Applicant from December 1, 2020 through to May 11, 2021 [ 23 ] Mr. Scott has not proven the existence of these records, nor established that they may be fruits of the investigation or obviously relevant. These would be subject of a third-party records application. In addition, disclosure of these documents would only be for the period of December 1, 2020 to April 30, 2021. iii.

Full and complete disclosure of all email correspondence, notes text messages, meeting notes, meeting agendas, meeting memoranda between AHS and the Office of the Chief Medical Officer of Health relative to the Applicant from December 1, 2020, through to May 11, 2021 [ 24 ] Mr. Scott has not proven the existence of these records, nor established that they may be fruits of the investigation or obviously relevant. Further, Mr. Plischke specifically denied that the Office of the Chief Medical Officer of Health was involved in any discussions with AHS relative to this prosecution that he is aware of.

These would be the subject of a third-party records application. In addition, disclosure of these documents would only be for the period of December 1, 2020 to April 30, 2021. iv. Full and complete disclosure of all email correspondence, notes text messages, meeting notes, meeting agendas, meeting memoranda between AHS and the office of the Premier of Alberta (including his designated subordinates) relative to the Applicant from December 1, 2020, through to May 11, 2021 [ 25 ] Mr.

Scott has not proven the existence of these records, not established that they may be the fruits of the investigation or obviously relevant. Mr. Plischke specifically denied that any member of the cabinet, which I conclude would include the Premier, was involved in any discussions with AHS relative this prosecution that he is aware of. These records would be the subject of a third-party records application . In addition, disclosure of these documents would only be for the period of December 1, 2020 to April 30, 2021. v.

Full and complete disclosure of all email correspondence, notes text messages, meeting notes, meeting agendas, meeting memoranda between AHS and the Alberta Justice relative to the Applicant from December 1, 2020, through to May 11, 2021 [ 26 ] As indicated earlier, I accept that Mr. MacKenzie K.C. has fully complied with his obligations as a prosecutor and his quasi- judicial role. Mr. Scott has provided absolutely no evidence that Mr. MacKenzie K.C. has improperly withheld information or failed to disclose first party information.

Further, there is no information that there are other documents in his possession subject to the limited disclosure that may be forthcoming in relation to the charging process. Mr. MacKenzie K.C. also concedes that he will look at whether there is likely relevance regarding the meetings of the thirty Alberta Health Service inspectors that were referenced by Mr. Plischke in his testimony. This will be limited to the Alberta Crown Prosecution Service only. This would be third party disclosure. vi.

Full and complete disclosure of all email correspondence, notes, text messages, meeting notes, meeting agendas, meeting memoranda between AHS the RCMP relative to the Applicant from December 1, 2020 through to May 11, 2022. [ 27 ] As indicated earlier, the Attorney General has already provided additional, first party disclosure relating only to the regulatory prosecution between the dates of December 1, 2020 and May 1, 2021. Accordingly, the RCMP have fully complied with this request and no further order is required. Any documents relative to AHS have already been dealt with in item i. above. vii.

Full and complete disclosure of email correspondence, notes, text messages, meeting notes, meeting agendas, meeting memoranda between AHS and the AGLC relative to the Applicant from December 1, 2020 through to May 11, 2022. [ 28 ] Mr. Scott has not proven the existence of these records, nor established that they may be fruits of the investigation or obviously relevant. These would be subject of a third-party records application. In addition, disclosure of these documents would only be for the period of December 1, 2020 to April 30, 2021. viii.

Full and complete disclosure of the RCMP actions relative to the Applicant leading up to his May 8, 2021 arrest, and imprisonment for three days afterwards. This includes but is not limited to officer notes, body camera footage, and any other

relevant disclosure from the date of the last alleged offence through to May 11, 2021. [ 29 ] In my view, Mr. Scott has not proven that these records are the fruits of the investigation or obviously relevant. In fact, these records are completely irrelevant to this prosecution and cannot be the subject of a disclosure application of any sort. I agree that this is an impermissible collateral attack of other proceedings (being the civil contempt proceedings). Conclusion [ 30 ] This application was to classify documents requested by Mr. Scott as either first party or third-party disclosure.

I have determined that, apart from the two limited concessions provided by the Crown and the RCMP, all other records are third party records and are the subject of that disclosure regime, meaning that AHS will respond on the limited disclosure that I have indicated herein, and that the Alberta Gaming and Liquor Control Commission, the Office of the Chief Medical Officer and the Office of the Premier will respond to the third-party disclosure application. Parties that have not filed a written response to Mr. Scott’s application will now be entitled to do so. If other parties, including Mr.

Scott, wish to make further written submissions on this next phase of the application they may apply to me in writing. [ 31 ] I have limited the time frames for this disclosure application to those that are clearly relevant to this prosecution. The CMOH Orders that are alleged to have been breached were in existence between December 1, 2020 to April 30, 2021. The allegations fall within this time period.

Requests for information falling outside of this period are clearly irrelevant and shall not be included in the third-party disclosure application. [ 32 ] For the purposes of clarity, I have dismissed the applications seeking disclosure from Alberta Justice, apart from the two concessions made by the Crown, and the application concerning the civil contempt matters. Heard on the 12 th day of April, 2023. Dated at the City of Red Deer, Alberta this 29 th day of May, 2023. J.A. Glass A Justice of the Alberta Court of Justice Appearances: P. Mackenzie for the Crown Y. Niv and C. Williamson for the Accused A.

Groenewegen and K. Fowler for the Respondent, Alberta Health Services J. Dube

for the Respondent, Office of the Chief Medical Officer, Alberta Gaming and Liquor Commission Board, Alberta Justice, Office of the Premier D. Vassberg for the Respondent, Attorney General Canada (representing the Royal Canadian Mounted Police)