Her Majesty the Queen - v. -, 2021 SKPC 22

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 22 Date: March 15, 2021 Information: 991137908 Location: Regina _____________________________________________________________________________ Between: Her Majesty the Queen - and - Murray Gore, William Reid, Barry Lines, Gavin McGarrigle, Joshua Coles, Mario Santos, Kenneth Anderson, Karl Deforest, Charles Grieve, Jerome Dias, Trevor R. Lesperance, Michael Smith, Bjorn E. Person / Collectively Referred as the Accused Appearing: Mr. Derek Davidson For the Crown Mr. John M. Williams and Mr.

Thomas Hynes For the Accused DECISION ON CHARTER APPLICATION REGARDING D. KOVATCH, J DISCLOSURE BACKGROUND AND FACTS [ 1 ] These matters arise out of a bitter and highly publicized labour management dispute between the Federated Co-operatives Limited, as owners of the Co-op Upgrader and Refinery in Regina, and UNIFOR, the union representing the employees at that facility. During the course of that dispute, the union established picket lines around the refinery, and particularly at a number of points of access to and from the refinery.

There were applications for injunctive relief made to the Saskatchewan Court of Queen’s Bench. There were

also significant publicity campaigns initiated by various stakeholders imploring the parties to settle, complaining about picket lines disrupting business, imploring the Police and/or Government to take action, or complaining about Police or Government action or inaction. [ 2 ] On January 20, 2020, several members of the Regina Police Service attended at the Co-op Refinery picket lines and arrested and charged a number of union members. Subsequently, the 13 accused were all jointly charged that on January 20, 2020, they wilfully obstructed peace officers in the execution of their duties, by attempting to prevent the enforcement of the Queen’s Bench order, contrary to

section 129 of the Criminal Code . Further, that on January 20, 2020, they wilfully interfered with the lawful use, enjoyment and operation of the Co-op Refinery Complex and committed mischief, contrary to section 430(4) of the Criminal Code . [ 3 ] The Crown proceeded summarily on all matters. All of the accused entered not guilty pleas to both charges, and the matters were set for trial. I was designated as the trial judge.

The trial was adjourned because of the COVID-19 pandemic, and the concern that the trial could not be safely conducted during the height of the pandemic. [ 4 ] All of the accused are represented by the same legal counsel. Early on in the proceedings, defence counsel made the usual request of Crown counsel for full disclosure. It was agreed by counsel that the Crown made full disclosure to defence counsel.

That disclosure was made to defence counsel on the usual trust conditions that required defence counsel to maintain control of the items of disclosure, not to disseminate those items, and not use them for any purpose other than their preparation for trial. [ 5 ] In the meantime, the COVID-19 pandemic hit, and numerous travel and meeting restrictions were imposed for public safety. Eleven of the 13 accused reside outside the province of Saskatchewan. Interprovincial travel, in particular, was greatly discouraged.

It became very inconvenient if not impossible, for the accused persons to come back to Regina, to meet with counsel, in order to review disclosure and instruct counsel. [ 6 ] I gather that counsel had a number of discussions regarding removal of the restrictive trust conditions, so that disclosed materials could be reproduced and disseminated to their clients, for review by the clients. I am advised that counsel reached agreements with respect to all of the written documents in the disclosure package. These written materials have been disseminated, reviewed, and counsel are advised and instructed.

However, the disclosure package also contained a number of video recordings of incidents at the picket line. Defence counsel asked that any restriction on the reproduction and dissemination of the video recordings be removed so that defence counsel could make copies on DVD and distribute them among their clients. Crown counsel advised they could not agree to the open and unrestricted dissemination of these video materials.

Crown counsel proposed that a Muirhead order be made against each of the accused persons, which would prevent them from disseminating the videos to any other party, and prevent the usage of the videos for any purpose other than preparation for trial. Defence counsel maintained that such restrictions were unnecessary and unwarranted, and that the Provincial Court did not have jurisdiction to make such an order. Negotiations broke down. [ 7 ] Defence counsel then brought this application.

In its application, the accused allege that their Charter right to make full answer and defence and to have a fair trial has been infringed by the Crown’s refusal to make disclosure. Defence request a remedy under

section 24 of the Charter and in particular request an order for full disclosure of the videos without any restrictions respecting their reproduction and dissemination. [ 8 ] On February 11, 2021, counsel made argument on the motion. I reserved my decision. This is that decision. Disposition of the Defence Application for Charter Relief [ 9 ] I am of the view that the accused’s application for Charter relief must be dismissed. The onus is on the accused to establish a breach of Charter of rights , and an entitlement to relief under the Charter . They have failed to establish any breach of the Charter rights.

Because I cannot conclude that there has been any breach of Charter rights, I cannot grant any relief under

section 24 of the Charter . In the case of R v W.A.O. , 2001 SKCA 64 , 207 Sask R 208 the Court dealt with an application for relief under the Charter , based upon the Crown having imposed restrictions on the disclosure. At paragraph 10, Mr. Justice Cameron, speaking for the Court, stated as follows: [ 10 ] Had she found the Crown to be in breach of its duty of disclosure, she might then have granted the remedy sought by the applicant, namely an order requiring the Crown to provide defence counsel with a copy of the tape on the suggested condition it not be reproduced and be returned to the Crown in due course. And should we be satisfied she erred, we too might do so. In the absence,

however, of a breach by the Crown of its duty, without which there is no infringement of the right to make full answer and defence, no such order may be made. That would amount to exercising the remedial powers of section 24(1) in the absence of an infringement of a Charter right.

And further at paragraphs 32 and 33: [32] Indeed, we agree with the position taken by Crown counsel on appeal, namely that the form of disclosure opted for by the Crown in the proper exercise of its discretion did not have the effect of infringing the appellant's right to make full answer and defence. [33] Aside from the inconvenience to defence counsel in having to inspect and view the tape on the terms suggested by Crown counsel, we can see no reasonable possibility of his right having been impaired.

Defence counsel was informed of the existence and content of the tape, coupled with appellant's admission he produced it, and has been afforded the opportunity to examine and view the tape in private, either at his office or that of the Crown, in the presence of the appellant and an expert.

In view of this, the inconvenience occasioned by this form of disclosure does not significantly affect the appellant's right to make full answer and defence and, when set against the Crown's concern to protect to the extent possible the privacy interests of the complainant and her children, is of no material consequence. [10] In the much more recent case of R v Goodman , 2020 NSSC 384 , the accused was charged with sexual assault. With respect to some videos and photographs, the Crown released these to defence counsel in trust on the condition that they not be copied or given over to the accused.

The Court held that the conditions imposed by the Crown on disclosure did not infringe upon Mr. Goodman’s right to full answer and defence. The Court concluded that the Crown had exercised its discretion appropriately, and was not prepared to interfere. Most importantly, the Court held there was no infringement of the accused’s right to full answer and defence, and accordingly dismissed the application. [ 11 ] Also, in R v Mossaddad , 2017 ONSC 5520 , defence sought the Court’s override of trust conditions so that the accused could publicize disclosure materials.

At paragraph 21, the Court stated: [21] The Court of Appeal concluded [in another case] that the record did not support the conclusion that the respondent's right to make full answer and defence had been impaired. I note in this case that Mossaddad has put before this Court no evidence with respect to how his right to make full answer and defence is impaired by the undertaking not to disclose, other than his unsubstantiated suggestion that the videotape statement has been altered. [ 12 ] I have reviewed many cases dealing with applications for disclosure.

In my view, the law is clear that the right to disclosure is not an absolute one. Rather, the Crown has and maintains a discretion to impose conditions upon disclosure. The Courts have clearly stated that generally speaking, the condition preventing dissemination of the material is justified to protect third party rights in that information, and justified in the fair administration of justice. [ 13 ] In the case at bar, it is clear that the Crown has made full disclosure to the defence counsel and agents for all of the accused. This is the standard practice.

It is true that the COVID-19 pandemic has intervened and it is now more difficult and inconvenient for the individual accused persons to review the disclosure. But that is not the fault of the Crown. The Crown has dealt with this matter exactly as they would have in any other case, and I cannot conclude they have breached any Charter right. The Crown’s suggestions that a Muirhead order be imposed was reasonable and in accord with the standard practice. Most importantly, in my view it does not affect the accused’s right to make full and answer and defence at all.

Accordingly, I would dismiss the defence application for Charter relief. Can this Court make an order for disclosure? As part of such an order, can it impose conditions? [ 14 ] I am of the view that a trial judge of the Provincial Court can make such an order, as a part of its jurisdiction and control over its own process. It is true that I would be making such an order to ensure that the accused had full disclosure and could make full answer and defence. It is true that I would be making such an order so that the accused could have a fair trial.

But having made these statements, an order for disclosure does not automatically make this a matter of granting Charter relief. Countless orders or decisions of the Court are made every day, in order to ensure that an accused can make full answer and defence and will have a fair trial. I would suggest that this is the case every time a decision is made allowing or disallowing a particular line of questioning. This is the case when the Court issues a subpoena and requires the witness to bring with them certain documents or objects as exhibits.

[15] In the case at bar, the defence makes application for disclosure, and wants me to make an order. The Crown agrees that anorder is appropriate, and simply wants me to make a Muirhead order which will have the effect of restricting the dissemination of theinformation. It seems to me that the Court must exercise its discretion and make an order. [16] I find support for the view that I can make such an order in the cases of R v Savion (1980), (ON CA), 52CCC (2d) 276 (Ont CA) [Savion] and D.P. v.

Wagg (2004), (ON CA), 71 OR (3d) 229 (Ont CA) [D.P. v Wagg]. [17] The Savion case is a pre-Charter case where the Crown refused to produce the accused’s statement during the trial. Defencecounsel asked for a Production Order. At paragraph 29, the Court stated that: [29] I have not been referred to, nor have I been able to find a Canadian case dealing with the power of a court to order productionwhere what was sought was the accused's own statement.

However, I cannot conceive that the power to compel the Crown to producethe statement of a witness is a narrow and isolated power; I conceive it to be but one facet of a wider power to order production that flowsfrom the ability of the court to control its process so as to manifestly ensure fundamental fairness and see that the adversarial process isconsistent with the interests of justice. Such a power must include the power to order production of the statement of an accused. [18] D.P. v Wagg was a civil case where the plaintiffs were seeking damages against the government related to a criminalprosecution.

The plaintiffs requested disclosure of a large number of the documents from a criminal prosecution file, as a part of theirdiscovery in the civil action. The Divisional Court Judge ordered a limited disclosure, and created a screening and review process todetermine which documents were relevant and needed to be disclosed. On appeal to the Ontario Court of Appeal, the Court addressedthe issue of the jurisdiction of the Divisional Court to order disclosure, and to impose conditions upon that disclosure and a screeningprocess. At paragraph 27, Mr.

Justice Rosenberg, speaking for the Court, clearly concluded that the Court had the jurisdiction to makesuch orders as part of its inherent power to control its process and to protect that process from being abused or obstructed. [19] In the case at bar, both Crown and defence are in agreement that some order must be made for the disclosure of the videos sothat defence is able to make a full answer and defence. Based on the above mentioned authorities, I believe I have the jurisdiction tomake such an order and will make an order.

Should there be an order preventing the dissemination of the videos? [20] Defence counsel takes the position that this court does not have jurisdiction to make an order restricting the dissemination ofthe video materials, and in any event, such conditions would not be appropriate in this case. With respect, I disagree. [21] Above, I concluded that this Court has jurisdiction to direct disclosure as part of its control over its process. I believe that if Ihave jurisdiction to direct disclosure, then as part of the same order, I have jurisdiction to impose restrictions on the use of thatdisclosure.

D.P. v Wagg, supra, supports that view. [22] During argument, I understood defence counsel to say that this court could not make a Muirhead order. With respect, thisCourt has made Muirhead orders on a number of occasions. The so called Muirhead order comes from the decision in R v Muirhead(1995), (SK CA), 148 Sask R 242 (Sask CA). In that case Mr. Muirhead was self-represented on his appeal againstconviction. The Court of Appeal ordered full disclosure to Mr. Muirhead, but as part of that same order, ordered that: 2. Mr.

Muirhead shall not release any document provided by the Crown or any of the witnesses’ statements in his possession to anymember of the public or press; 3. the material referred to in paragraph 2, shall be used solely for the purposes of preparing Mr. Muirhead’s appeal and shall not bereproduced, stored in a retrieval system or transmitted in any form. [23] My review of many cases in this area indicates that the rule against reproduction and dissemination of the disclosed materialis very general and broad based.

Invariably, defence counsel must apply for some exempt status to escape the very strict application ofthe rule. Generally, when any exemption is granted, it is granted for a very limited and specific purpose, for example release to an expert

for expert analysis and opinion. I respectfully disagree with defence counsel that the case of R v Carter , 2018 ONSC 1272 supports the view that dissemination ought to be allowed unless the material is particularly sensitive in nature. [ 24 ] In this case, Crown counsel has expressed the concern that videotaped evidence for this trial would be released, in whole or in part, and find its way, in advance of trial, into a publicity campaign. Given the media coverage of the labour management dispute, and the various related publicity campaigns, the Crown’s concern is justified.

One of the most basic and fundamental rules for a fair trial is that the Court must decide the issue only upon the admissible evidence before the Court. Any reproduction and dissemination of videos should occur at or after trial, and not before. [ 25 ] Lastly, on this point, defence counsel argued that a restriction on dissemination was an unnecessary restriction on the freedom of his clients, and the Court should not impose such a restriction in the same way as it should not impose unnecessary restrictions on an accused in a bail application.

In my view, the bail situation is not analogous to the issue of disclosure. When I compare this situation to the bail situation, I reach the opposite conclusion, that the restriction is appropriate. When an accused person is released on bail, he remains a free person at large in our society, and should to the greatest extent possible, retain all of the same rights and freedoms as every other citizen. The Courts are not to restrict these rights and freedoms unnecessarily. No one has the right to reproduce and disseminate disclosure information as they see fit.

The whole reason for this application is that defence counsel does not even have that right. Giving the accused the right to reproduce or disseminate this material in any fashion would not make them the same as all other accused persons. It would give them very substantially greater rights and freedoms than all other accused persons. It could also be very detrimental to third party interests and the administration of justice.

By way of contrast, making an order restricting dissemination, in my view, does nothing more than make a clear legal statement that these accused have these videos subject to the exact same conditions as are imposed in virtually every other criminal case. In my view there must be restrictions. CONCLUSION [ 26 ] There will be one order under the style of cause of this decision that will be applicable to the Crown and all of the accused.

Service of that order on all of the accused will be effected by service of one true copy of the order on the legal office of Gerrand Rath Johnson, defence counsel for all of the accused. Following service of that order, the Crown and/or defence counsel may make copies of the videos, and may distribute one copy of the video to each of the accused persons. No one other than Crown or Defence Counsel shall reproduce any portion of the video materials, or store them in any retrieval system, or transmit them in any form to any other third person.

No person shall reproduce or transmit the videos to any member of the public or press. The videos may be utilized only for the purpose of preparing for the accused’s defence in the trial of this action, and for no other purpose. Upon completion of the trial, those videos shall be returned to the Crown, if requested. [ 27 ] Crown counsel may draft an order encompassing the above, and submit it to the Court for issuance. Dated at the City of Regina, the Province of Saskatchewan, this 15 th day of March, 2021. ______________________________ Kovatch, J