Tanya Apodaca Applicant - v. –, 2023 SKPC 26

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2023 SKPC 26 Date: March 21, 2023 Information: 991192882 Location: Regina Between: Tanya Apodaca Applicant - and – The Regina Police Service Respondent Appearing: Elaine Anderson For the Applicant Katrina Swan, K.C. For the Respondent Bryan Carter For the Crown DECISION ON APPLICATION FOR THIRD PARTY RECORD PRODUCTION M.

HINDS , J INTRODUCTION [ 1 ] Tanya Apodaca, Gerald Ferguson, Cindy Gall, Christina Hagel, Jasmine Grandel, Erinn Knoll, Brenda Kriese, Tamara Lavoie, Edward Palchinski, and John Slastukin are charged that on or about May 15, 2021 at Regina, Saskatchewan they did fail to comply with a Public Health Order by attending a gathering exceeding 10 people , contrary to

section 61 of The Public Health Act, 1994 , SS 1994, c P-37.1 . [ 2 ] The trial of this strict liability offence is taking place between March 20 -24 and 27, 2023 before me. The trial date was set on April 7, 2022.

[3] On March 10, 2023 legal counsel for the accused, Tanya Apodaca served a Notice of Application for Third Party RecordProduction, Pursuant to R v O’Connor, (SCC), [1995] 4 SCR 411 [O’Connor] and an Affidavit of Tanya Apodaca on thesolicitor for the respondent, The Regina Police Service (RPS). These documents have been filed with the Court and form the basis of theapplication.

Rather than serving the Chief of Police of the Regina Police Service with a subpoena duces tecum compelling him to bring aRPS document to Court entitled “The Operational Plan – Public Health Order May 2021 references in paragraph 2 of the GeneralOccurrence Report #RA 21034806 authored by #622 Robinson, A., the Court was advised that legal counsel for the RPS, Ms. Swan,K.C. brought this document to Court in a sealed envelope on the return date of the Application, March 16, 2023. The Court heard theapplication on March 16, 2023 which was dismissed with written reasons to follow.

This decision constitutes the written reasons fordismissing the application. [4] The Notice of Application states that the applicant is seeking an order of production pursuant to O’Connor, for the followingrecords to be produced from the Regina Police Service to the accused: 1. The Operational Plan – Public Health Order May 2021 as referenced in paragraph 2 of General Occurrence Report #RA 21034806,authored by #622 Robinson, A. (“Operational Plan”). [5] The Notice of Application states that the applicant relies on the following grounds: 2.

The Applicant asserts that the Operational Plan constitutes fruits of the investigation and is subject to the first party disclosureregime under Stinchcombe. 3. The Applicant further asserts the Operational Plan was utilized by Corporal Anita Robinson to identify people on the street onMay 15, 2021. As such it is “obviously relevant” to the Applicant’s defence and is subject to the first party disclosure regime pursuant toR v McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 at para. 59. 4.

In the alternative, for the same reasons the Applicant asserts the requested disclosure is likely relevant and may assist the accusedin the exercise of the right to make full answer and defence. Therefore, the Operational Plan should be produced to the court forexamination. 5. The refusal of the Crown to exercise its discretion to obtain a copy of these records does not absolve the Crown of its disclosureobligations for obviously relevant disclosure. 6.

Any additional grounds as counsel may advise and this Honourable Court may permit. [6] The Notice of Application indicates that the applicant seeks the following relief: 1. An Order allowing the Application and granting production and disclosure of the Operational Plan and other relevant recordswithin the possession or control of the Regina Police Service (“RPS”) relating to the Applicants; and, 2. In the absence of any other remedy, staying Information 991192882 as the only just remedy. [7] The Affidavit of Tanya Apodaca in support of this application is comprised of 6 paragraphs which state as follows: 1.

I Tanya Apodaca, have personal knowledge of the matters and facts herein deposed to except where stated to be on information andbelief and where so stated I verily believe the same to be true. 2. I am a named accused on the long form information recited in the style of cause to this affidavit.

3. My lawyer, Elaine Anderson, has informed me, and I do verily believe it to be true, an “operational plan” was referenced in the Regina Police Service General Report that formed part of the disclosure package for the charges against me. 4. Ms. Anderson also informed me that on January 3, 2023 she received an email from Bryan Carter, Crown Prosecutor, stating that, “if you seek disclosure of an “operational plan” on any of these upcoming trial files, you will need to make an O’Connor application on notice to the police. We do not have the “operational plan” in our possession.” 5.

Paragraph 2 of the General Report for occurrence #RA 21034806, authored by #622 Robinson, A. states, “I was tasked with the running the Operational Plan for The Anti-Mark Protest on 2021/05/15”. 6. I make this Affidavit in support of an application for the production of records in the possession of the Regina Police Service. ISSUES [ 8 ] The issues to be determined are as follows: (

a) Is this an application for first party records pursuant to Stinchcombe and McNeil or is this application for third party records pursuant to O’Connor ? (

b) If it is determined that this is an application for third party records pursuant to O’Connor is the application supported by evidence showing that the record (Operational Plan) is likely relevant? (

a) Is this an application for first party records pursuant to Stinchcombe and McNeil or is this application for third party records pursuant to O’Connor ? [ 9 ] Despite the written assertions set out in paragraphs 2 and 3 of the Notice of Application that this application is made subject to (1) the first party disclosure regime under Stinchcombe and (2) is subject to the first party disclosure regime pursuant to McNeil, respectively, legal counsel for applicant conceded in oral argument that this application is for an order for third party disclosure pursuant to O’Connor . [ 10 ] This is a helpful concession and is in keeping with the law.

There are two different regimes which govern disclosure in criminal cases and in this case, which is a strict liability offence. This is nicely summarized in R v Gubbins, 2018 SCC 44 , [2018] 3 SCR 35 [ Gubbins ] at paragraph 29 : [29] To summarize, two different regimes govern disclosure in criminal cases. First party disclosure, as set out in Stinchcombe and supplemented by the duties on the Crown and the investigating police in McNeil , requires disclosure of all relevant information upon request. If the Crown refuses disclosure, it bears the burden to show that the information is clearly irrelevant.

Third party disclosure per O'Connor requires an application to the court for third party disclosure (where the records sought do not fall under first party disclosure) for which the defence bears the burden to show that the record is likely relevant. In both instances, the purpose is "[to protect] an accused person's right to make full answer and defence, while at the same time recognizing the need to place limits on disclosure when required": World Bank Group v. Wallace , 2016 SCC 15 , [2016] 1 S.C.R. 207 (S.C.C.) , at para. 115 . Such limits include avoiding fishing expeditions.

First Party Disclosure [ 11 ] In R v Gubbins Mr. Justice M. Rowe discussed the Stinchombe first party disclosure obligation upon the Crown at some length at paragraphs 18 to 24. I found paragraphs 21 and 22 particularly instructive in this case: [21] In McNeil , this Court clarified that "the Crown cannot explain a failure to disclose relevant material on the basis that the investigating police force failed to disclose it to the Crown": para. 24.

The Crown has a duty to make reasonable inquiries when put on notice of material in the hands of police or other Crown entities that is potentially relevant: McNeil , at para. 49 . As well, the police have a corresponding duty to disclose "all material pertaining to its investigation of the accused": McNeil , at paras. 23 and 52 . Such material is often referred to as "the fruits of the investigation": McNeil , at paras. 14, 22-23 .

As well, the police may be required to hand over information beyond the fruits of the investigation where such information is "obviously relevant to the accused's case": McNeil , at para. 59 .

[22] The "fruits of the investigation" refers to the police's investigative files, as opposed to operational records or backgroundinformation. This information is generated or acquired during or as a result of the specific investigation into the charges against theaccused.

Such information is necessarily captured by first party/Stinchcombe disclosure, as it likely includes relevant, non-privileged information related to the matters the Crown intends to adduce in evidence against an accused, as well as anyinformation in respect of which there is a reasonable possibility that it may assist an accused in the exercise of the right to make fullanswer and defence. The information may relate to the unfolding of the narrative of material events, to the credibility of witnesses or thereliability of evidence that may form part of the case to meet.

In its normal, natural everyday sense, the phrase "fruits of the investigation" posits a relationship between the subject matter sought andthe investigation that leads to the charges against an accused. (R. v.

Jackson, 2015 ONCA 832, 128 O.R. (3d) 161, at paras. 92-93) [emphasis added] [12] Given this statement of the law I am of the view that the “Operational Plan” at issue in this application which the RPS hasdescribed as being “a template, an internal, investigative document, that was intended to assist police members in ensuring publicsafety,” should be considered under the third party disclosure regime set out in O’Connor. Third Party Disclosure (

b) If it is determined that this is an application for third party records pursuant to O’Connor, is the application supported byevidence showing that the record (Operational Plan) is likely relevant? [13] A helpful

summary of the law relating to third party disclosure is provided by the Court in Gubbins at paragraphs 25 – 28 asfollows: [25] Third party disclosure is dealt with in O'Connor. To obtain disclosure of such records, an accused must make a court application.First, the burden is on the accused to show that the record is "likely relevant".

Second, where the accused discharges this burden, thejudge will examine the record to determine whether, and to what extent, it should be produced to the accused. [26] Information will be "likely relevant" where there is "a reasonable possibility that the information is logically probative to an issueat trial or to the competence of a witness to testify": O'Connor, at para. 22 (emphasis deleted). The "likely relevant" threshold has beendescribed as significant, but not onerous: O'Connor, at para. 24; McNeil, at para. 29.

The reason that the relevance threshold is"significant" is to allow the courts to act as gatekeepers, preventing "speculative, fanciful, disruptive, unmeritorious, obstructive, andtime consuming" requests for production: O'Connor, at para. 24, quoting R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727, atpara. 32. [27] Nevertheless, the burden on the accused is not onerous.

"Likely relevance" is a lower threshold than "true relevance", and has a"wide and generous connotation" that "includes information in respect of which there is a reasonable possibility that it may assist theaccused in the exercise of the right to make full answer and defence": McNeil, at para. 44; see also O'Connor, at para. 21. Only afterinformation has been shown to be likely relevant will the courts assess the actual relevance of the record sought. The courts then considercompeting interests at the second stage of an O'Connor application: McNeil, at para. 39.

It may be apparent "upon inspection by thecourt that the claim of likely relevance established at the first stage of the O'Connor application is simply not borne out": McNeil, atpara. 40. [28] There are two reasons why the threshold in an O'Connor application is not onerous. First, the only issue at this stage is likelyrelevance. The application judge is not determining the admissibility of records, nor has the judge reached the point at which he or sheconsiders competing interests: O'Connor, at para. 24.

Second, the accused at this stage is in the difficult position of having to makesubmissions without knowing the contents of the records being sought: O'Connor, at para. 25. The likely relevance threshold is a first-step inquiry designed to prevent fishing expeditions, but nothing more. [emphasis added] [14] I am of the view that the applicant bears the onus of establishing that the records sought (the Operational Plan) are “likelyrelevant”. Relevance is not presumed. The applicant must lay a foundation for the relevance of the material being sought [McNeil atparagraph 44].

As has been stated, the Supreme Court of Canada in O’Connor (at paragraph 22). held that the standard of likelyrelevance means that there is "a reasonable possibility that the information is logically probative to an issue at trial or the competence of

a witness to testify " In addition, The “likely relevant” threshold has been described as significant but not onerous ( O’Connor at paragraph 24). The Court at this first stage of the O’Connor application is to act as a gatekeeper preventing “speculative, fanciful, disruptive , unmeritorious , obstructive, time consuming” requests for disclosure. In short, the first stage of the O’Connor application is to prevent fishing expeditions. [ 15 ] In R v Cyr , 2013 SKQB 87 , 461 Sask R 1 Schwann J. as she then was, confirmed the requirement to provide a proper evidentiary foundation on O’Connor applications.

At paragraphs 24 and 26 Schwann J. stated as follows: [24] As mentioned, the accused bears the onus in an O’Connor application. As L’Heureux-Dubé J. (for the majority in O’Connor ) observed, like any other motion, an application for third party records “must be accompanied by affidavit evidence which establishes to the judge’s satisfaction that the information sought is likely to be relevant”.

More to the point, the assertion of relevance must be based on evidence, “not on speculative assertions or on discriminatory or stereotypical reasoning”. ( O’Connor , para. 140) … [26] The above passage underscores the majority position that “regardless of when it is brought , an application for production will not succeed if it is not supported by evidence demonstrating likely relevance of the records”. ( O’Connor , para. 146) [ 16 ] The question before the Court is this.

Has the applicant established an evidential foundation which would enable me as the presiding judge to conclude there is actually in existence further material which may be useful to the accused in making full answer and defence, in the sense it is logically probative to an issue in the proceeding or the competence of a witness to testify? I am of the view that the answer to this question is no. [ 17 ] The Notice of Application states that the applicant relies on several grounds. The grounds are assertions as follows: 2.

The Applicant asserts that the Operational Plan constitutes fruits of the investigation and is subject to the first party disclosure regime under Stinchcombe . 3. The Applicant further asserts the Operational Plan was utilized by Corporal Anita Robinson to identify people on the street on May 15, 2021. As such, it is “obviously relevant” to the Applicant’s defence and is subject to the first party disclosure regime pursuant to R v McNeil , 2009 SCC 3 , [2009] 1 S.C.R. 66 at para. 59 . 4.

In the alternative, for the same reasons the Applicant asserts the requested disclosure is likely relevant and may assist the accused in the exercise of the right to make full answer and defence. Therefore, the Operational Plan should be produced to the court for examination. [emphasis added] [ 18 ] The affidavit of the applicant is made up of six concise paragraphs which I have set out in paragraph 7 of this decision. I am of the view that at this stage two paragraphs bear special attention. 3.

My lawyer, Elaine Anderson, has informed me, and I do verily believe it to be true, that an “operational plan” was referenced in the Regina Police Service General Report that formed part of the disclosure package for the charges against me. … 5. Paragraph 2 of the General Report for occurrence #RA 21034806, authored by #622 Robinson, A. states, “I was tasked with running the Operational Plan for the Anti-Mark Protest on 2021/05/15”. [ 19 ] First of all, as has been previously decided, the RPS Operational Plan is not the fruits of the investigation.

The first party disclosure regime under Stinchcombe does not apply to it. [ 20 ] Secondly, with respect, I am of the view that the applicant’s affidavit as a whole and in particular paragraphs 3 and 5 simply establish the existence of a RPS Operational Plan and that #622 Robinson A. was tasked with running the Operational Plan for the Anti- Mask Protest on May 15, 2021.

When the Court asked the applicant’s legal counsel what issue at trial the Operational Plan is relevant to, the applicant’s legal counsel stated “Identification.” There is, with respect, no evidentiary foundation before the Court establishing this. [ 21 ] T here is a bare assertion (see paragraph 3 Grounds) that the “Operational Plan” was utilized by Corporal Anita Robinson to identify people on the street on May 15, 2021. There is, however, no reference to this assertion in the whole of the affidavit of the

applicant. During oral argument on this application it became evident that this assertion is based on a review of certain video disclosure by the applicant’s legal counsel who thinks, but is not sure, that Corporal Anita Robinson may have used the Operational Plan while she was making an “in car video recording” of a gathering of people on May 15, 2021. Legal counsel for the applicant indicated that she could hear the “flipping of some pages” during the audio/visual recording from Corporal Robinson’s police vehicle.

This is nothing more than speculation on behalf of legal counsel for the applicant that the pages being flipped were from the Operational Plan. It is not evidence before this Court in support of the application. [ 22 ] In conclusion, I am of the view that the applicant has not met the onus upon her to establish that the RPS Operation Plan is likely relevant, that is there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify. For these reasons the application before the Court is dismissed. _________________________ Hinds, J