R. v. Giles, 2021 NSSC 69

SUPREME COURT OF Nova Scotia Citation: R. v. Giles , 2021 NSSC 69 Date: 20210225 Docket: CRP-496432 Registry: Pictou Between: Her Majesty the Queen v. William Jeffrey Giles, Charles Jardine Hayman, Donald Melbourne Messenger, and David James Bishop Decision on Records Application Judge: The Honourable Justice N.M. Scaravelli Heard: February 24, 2021, in Pictou, Nova Scotia Decision: February 25, 2021 Counsel: Peter Craig, Q.C. and T.W.

Gorman, for the Crown Patricia MacPhee, for the Attorney General of Canada Stanley MacDonald, Q.C., for the accused, William Giles Peter Planetta, for the accused, Charles Hayman Nash Brogan, for the accused, Donald Messenger Alexander McKillop, for the accused, David Bishop By the Court: [ 1 ] The applicant, William Jeffrey Giles, has made two disclosure applications, namely a third party application seeking production under the O’Connor regime and an application for first party disclosure under the Stinchcombe regime.

Background [ 2 ] The applicant is a co-accused facing multiple charges arising from an alleged aggravated assault. The incident involved the beating of one Barron, who allegedly stole a “cut” (vest) and a Gatekeepers’ sign from the home of a prospect member of the “Gatekeepers” motorcycle club. Barron was allegedly assaulted at the Gatekeepers’ clubhouse in New Glasgow, Nova Scotia.

The RCMP subsequently conducted a “Mr Big” sting operation involving the turning of a co-accused, Bacon, who eventually pleaded guilty, provided a KGB statement, and entered witness protection. [ 3 ] The applicant seeks production of certain records held by the Witness Protection Program (“WPP”). The records relate to the co-accused Bacon, who is expected to testify as a witness to the alleged assault and its aftermath. As described in the previous disclosure, and summarized in the affidavit of J.

Paul Niefer, dated 29 January 2021, Bacon was granted partial immunity from prosecution for the alleged assault and admitted into the WPP. He pleaded guilty to several counts in relation to these events and is serving a three-year sentence. The specifics of the information sought are set out in the applicant’s brief.

They include: - copies of any agreements between Bacon and the WPP; - information respecting the nature, purpose, and amounts of any past or future payments by the WPP, or which have been demanded by Bacon, including payments to third parties; - details of WPP involvement with any Criminal Code offences with Bacon has been charged;

- information obtained by the WPP respecting false or misleading statements by Bacon; - information respecting any consideration given to expelling Bacon from the WPP; - details of conversations concerning the investigation or Bacon’s expected testimony; - information or statements obtained by WPP that are relevant to the offence with which the applicant is charged, including post-offenceconduct, conversations, or interactions that involve the circumstances of the offence or the applicant; and - all relevant records in the possession of the WPP that are not exempt as prohibited disclosure under s 11(1) of the Witness ProtectionProgram Act, SC 1996, c 15. [4] Ultimately, the applicant seeks full disclosure, however, he submits the court should order first party disclosure. [5] The Attorney General consents to disclose to the Crown information regarding any financial assistance provided to thewitness, any incidents of misconduct as well as any agreements as part of first party disclosure.

The Attorney General submits anyfurther disclosure of WPP records should be sought by way of an O’Connor application. In this regard, “likely relevance” threshold hasbeen conceded by the Attorney General and WPP records have been collected and vetted for the court’s review. Records Production: First Party/Third Party [6] The issue in this application is which disclosure regime applies: the first party disclosure regime under R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326, and R. v. McNeil, 2009 SCC 3, or the third-party disclosure regime under R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411.

The two approaches were summarized, along with the analysis for determining which oneapplies, in R. v. Gubbins, 2018 SCC 44. Rowe J said, for the majority: [29] To summarize, two different regimes govern disclosure in criminal cases. First party disclosure, as set out inStinchcombe and supplemented by the duties on the Crown and the investigating police in McNeil, requires disclosure of all relevantinformation upon request. If the Crown refuses disclosure, it bears the burden to show that the information is clearly irrelevant.

Thirdparty disclosure per O’Connor requires an application to the court for third party disclosure (where the records sought do not fall underfirst 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 ondisclosure when required”: World Bank Group v. Wallace, 2016 SCC 15, [2016] 1 S.C.R. 207, at para. 115.

Such limits include avoidingfishing expeditions. .... [32] How should the courts determine whether a record in the possession or control of a state entity is subject to firstparty or third party disclosure? Relevance alone is not determinative. A record may be relevant to the case against an accused and still bea third party record. [33] Based on the previous discussion of disclosure regimes, to determine which regime is applicable, one shouldconsider:

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

(2) Is the nature of theinformation sought such that the police or another Crown entity in possession or control of the information ought to have supplied it tothe prosecuting Crown? This will be the case if the information can be qualified as being part of the fruits of the investigation orobviously relevant.

An affirmative answer to either of these questions will call for the application of the first party disclosure regime.Otherwise, the third party disclosure regime applies... [Emphasis added.] [7] The applicant submits that the information sought is in the hands of a Crown entity and should be subject to the Stinchcombefirst-party production regime.

The question is whether the information sought constitutes “fruits of the investigation” or is “obviouslyrelevant.” The applicant does not argue that the information sought constitutes “fruits of the investigation.” As such, the material indispute will be subject to Stinchcombe disclosure if it is “obviously relevant.” Rowe J discussed the concept of obvious relevance inGubbins: [23] In addition to information contained in the investigative file, the police should disclose to the prosecuting Crownany additional information that is obviously relevant to the accused’s case.

The phrase “obviously relevant” should not be taken asindicating a new standard or degree of relevance: [R v Jackson, 2015 ONCA 832] at para. 125, per Watt J.A. Rather, this phrase simplydescribes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombebecause it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence.McNeil requires the police to hand such information to the Crown. [Emphasis added.]

[ 8 ] Watt JA, for the court, reviewed the principles of disclosure in R v Pascal , 2020 ONCA 287 , where the dispute related to non- disclosure of the criminal record and outstanding charges of a Crown witness. Elaborating on the meaning of “obviously relevant” as discussed in Gubbins , he said: [128] ... [I]n my respectful view, the information with which we are concerned here falls within the “obviously relevant” category for disclosure purposes.

It follows that it was incumbent on the police to turn over this information to the prosecuting Crown for disclosure to defence counsel. [129] The phrase “obviously relevant” describes information that is not within the investigative file but is nonetheless required to be disclosed under Stinchcombe because it relates to an accused’s ability to meet the case for the Crown, to raise a defence or to otherwise consider the conduct of the defence : Gubbins , at para. 23 . Logically, this would include evidence that could be used to impeach the credibility of witnesses to be called to establish the accused’s guilt ...

The relevance of outstanding charges in particular was emphasized by the Court in Titus , at pp. 263-64: [T]he accused is entitled to employ every legitimate means of testing the evidence called by the Crown to negative that presumption and in my opinion this includes the right to explore all circumstances capable of indicating that any of the prosecution witnesses had a motive for favouring the Crown.

In my opinion the outstanding indictment preferred against the witness by the same police department that had laid the present charge against Titus constitutes such a circumstance … . [Emphasis by Watt JA.] [130] It is difficult to gainsay the relevance of the information at issue here. A criminal record. Outstanding charges. Evidence about the circumstances underlying the relevant charges. Each available for impeachment of a witness called by the Crown. Each a relevant factor in deciding whether to call Deidre Jarvis as a defence witness in the event she was not to be called by the Crown.

Relevance is the controlling principle, not the likelihood of use or prospect of success . [Emphasis added.] [ 9 ] In McNeil , the Supreme Court of Canada held that certain police disciplinary records relating to an officer who was a central witness in the proceeding were disclosable under Stinchcombe . Charron J, for the court, observed that Crown counsel has a duty to investigate when they become aware of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case.

She concluded: 59 I agree that it is "neither efficient nor justified" to leave the entire question of access to police misconduct records to be determined in the context of the O'Connor regime for third party production. Indeed, as discussed earlier, the disclosure of relevant material, whether it be for or against an accused, is part of the police corollary duty to participate in the disclosure process. Where the information is obviously relevant to the accused's case, it should form part of the first party disclosure package to the Crown without prompting .

For example, as was the case here, if an officer comes under investigation for serious drug-related misconduct, it becomes incumbent upon the police force, in fulfilment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action. Of course, not every finding of police misconduct by an officer involved in the investigation will be of relevance to an accused's case.

The officer may have played a peripheral role in the investigation, or the misconduct in question may have no realistic bearing on the credibility or reliability of the officer's evidence. The kinds of information listed in the Ferguson Report can provide useful guidance on those types of matters in respect of which a police force may well be advised to seek the advice of Crown counsel. [ 10 ] There is precedent for holding WPP records to be subject to first party disclosure. In R. v.

Fischer , 2020 ABQB 67 , four accused charged with first degree murder sought production of records relating to a Crown witness who had been accepted into emergency protection under the WPP. The witness had ultimately refused formal program entry but received limited assistance under an alternate aid arrangement (AAA) administered by the RCMP which fell within the ambit of the WWP. The court said: [21] In R v McNeil , 2009 SCC 3 at paras 36-39 the Court recognized that true relevance must be contextually assessed. The nature of the requested record is not necessarily determinative.

Although advanced in the context of determining whether production should occur in an O’Connor application, this approach also informs a determination of relevance in this application. Accordingly, I disagree with RCMP counsel that generally, WPP records are not, by their nature, obviously relevant. Rather, this determination demands a contextual analysis involving the case against these Accused. [22] In this case, Ms. P. allegedly provided the vehicle used to transport the victim to the crime scene.

She allegedly was also present in the immediate vicinity with the accused persons and the victim when the alleged murder occurred. Subsequently, she actively assisted police in locating and confirming the Accused’s residences. [23] Under the circumstances, Ms. P. is a material, and indeed, significant Crown witness. She is integrally connected to both the police investigation and the prosecution case. It is properly anticipated the credibility and reliability of her evidence will meaningfully

impact the trial outcome and lifestyle quality . [24] Evidence adduced on this application revealed Ms. P. received funding under the AAA regime. Staff Sergeant Doe also recognized that program funding may improve the lifestyle quality of a program participant. Such funding was ongoing during her preliminary inquiry testimony and concluded shortly thereafter. These records may have a significant impact upon Ms. P.’s credibility and reliability as a trial witness.

Most obviously, they may inform her motivation to testify in this case. [ 11 ] The court concluded that the WPP records were akin to the police disciplinary records at issue in McNeil , and held that the information was properly characterized as first party records and was disclosable pursuant to R. v.

Stinchcombe . [ 12 ] As in Fischer , the applicant submits, Bacon will be a significant Crown witness whose credibility and reliability will be key issues at trial, and the WPP records are therefore obviously relevant. [ 13 ] There are decisions prior to Gubbins in which WPP records were treated as third party disclosure. In R. v. Le (TD) , 2011 MBCA 83 , leave to appeal refused, [2011] S.C.C.A. No. 526, on an appeal from his conviction for first degree murder, the appellant argued that the trial judge erred in treating WPP records of his girlfriend and her sister as third party records.

On examining the documents, the trial judge concluded that those relating to any benefits given by the Crown to the sisters were relevant, as were details of any discussions relating to the investigation or their testimony, and disclosure was ordered. All other documents were found to be irrelevant; that, there was no reasonable possibility that the information was logically probative to an issue at trial. The Court of Appeal held that the trial judge was correct to hold that the records were in the hands of a third party. [ 14 ] In R. v.

Vader , 2016 ABQB 228 , the witness had not been admitted to the WPP, but had received emergency protection from the RCMP. The accused, who was charged with first degree murder, sought Stinchcombe disclosure of records relating to the police protection. The court held that the information was subject to the third party regime, not being fruits of the investigation, and originating in an organization that, while technically part of the RCMP, did not share information with the investigative side.

Like Le , this decision preceded Gubbins , and the category of “obvious relevance” was not discussed. [ 15 ] By contrast, in R. v. Jennings , 2018 ABQB 105 , the applicant argued that WPP records respecting the Crown’s Vetrovec witnesses were first-party records. The court heard evidence respecting the operations of the WPP, and the particulars of the instant case, including the WPP’s dealing with the relevant witnesses. After reviewing the leading cases – including Stinchcombe , McNeil , R. v. Quesnelle , 2014 SCC 46 , R. v. Jackson , 2015 ONCA 832 , and others – the court considered Vader and Le .

Shelley J said: [32] In my view, the factors set out by Thomas J in Vader can be usefully applied to the general principles in McNeil and Quesnelle . At para 11, in which he set out the categories of information to which Stinchcombe applies , he included information prepared for the purpose of the investigation . The evidence establishes that Mr. Lopez and Mr. Edmonds were integral parts of the investigation. The evaluation of Mr. Lopez addressed both his suitability for the WPP and for becoming a police agent.

Clearly that assessment was for the purpose of the investigation . [33] Thomas J also identified information that is intrinsically linked to the investigation with both a factual and evidentiary link. Mr. Lopez’s role in the investigation is more than the “but for” link mentioned in Vader . The investigation would have been entirely different without Mr. Lopez’s participation as a police agent. Mr. Lopez was, as counsel for Mr. Jennings noted, himself a fruit of the investigation, as was Mr. Edmonds. Moreover, assessments of Mr. Lopez’s and Mr.

Edmonds’ psychology, behaviours, tendencies, and motivation to testify are directly relevant to their credibility and reliability – the factors expressly referenced in McNeil . [34] Moving to the more detailed considerations relied on in Le , I note: (

a) Source of information: At least some of the WPP information was reviewed by the investigation team, as Supt. Ng testified that the results of the psychological report concerning whether Mr. Lopez was suitable to be a police agent and suitable for the WPP were shared with both the investigation team and the WPP; (

b) Related to subject matter of charges: The information is not directly related to the subject matter of the charges; (

c) Connection to the investigation: The WPP was not completely isolated from the investigative unit. The evidence demonstrates that there was a go-between relationship between Supt. Ng and Mr. Lopez as Mr. Lopez negotiated to be accepted into the WPP before he would agree to act as a police agent; (

d) Sharing of information: The WPP and the investigative unit shared information. For example, Supt. Ng met with Mr. Lopez to encourage him to cooperate with the WPP requirement that his wife/girlfriend undertake a psychological assessment; Supt. Ng was told that Mr. Lopez was not accepted into WPP and he communicated that decision to Mr. Lopez; Supt. Ng asked his chain of command

to communicate with the WPP chain of command to reconsider its decision; (

e) Contact with the Investigation: The investigative unit and the WPP have a different reporting structure, but the LOA team shared the same reporting line as the WPP, and, as I mentioned above, there was communication along the chains of command aimed at securing Mr. Lopez’s agreement to act as a police agent in the investigation. [35] In Vader , Thomas J held that, because the means and methods of the WPP and the payments made to the witness were not directly related to the facts on which Mr. Vader was charged, this information was not part of the acquisition of evidence available for prosecution. In my view, this is too narrow an

interpretation of the Supreme Court’s decision in McNeil , which permitted first party disclosure of evidence that went to the credibility and reliability of a witness, as long as that witness was integrally connected to the investigation. Here, both Mr. Lopez and Mr. Edmunds were instrumental in acquiring evidence for the prosecution. Mr.

Lopez’s actions as a police agent triggered Edmund’s confession and his involvement in the investigation as a Crown witness . [Emphasis added.] [ 16 ] Jennings was cited with approval in Fischer : [26] I find the requested records are akin to the disciplinary records requested in R v McNeil .

I also adopt the conclusion of Shelley J in R v Jennings , 2018 ABQB 105 at para 36 : ... the Crown’s bridging obligation to make reasonable inquiries of other Crown agencies or departments under McNeil was triggered; as Crown counsel reasonably should have considered that WPP was in possession of evidence pertaining to the credibility or reliability of the witness[es]. [ 17 ] Based upon the above, I concur that WPP records going to the credibility and reliability of a key Crown witness are first-party records, as suggested by Jennings and Fischer .

The cases suggesting the contrary were decided without the benefit of the clarification of the law in Gubbins , and particularly the identification of the specific category of “obvious relevance.” Even prior to Gubbins , it is apparent from Jennings that the courts’ approach to production of WPP records was not singular. [ 18 ] The Attorney General of Canada, on behalf of the WPP, consents to Stinchcombe production of information respecting any financial assistance provided to the Witness and information that pertains to any incidents of misconduct that might be relevant to the investigation.

This position is supported by R. v. Johnston , 2019 BCCA 107 , where the British Columbia Court of Appeal held that information relating to possible witness benefits or inducements would be subject to first party disclosure. The court said: [104] Despite this nuanced position, I consider it possible that Person Y viewed enrollment in the WPP as a benefit, even if the Crown did not.

As such, and without determining the issue beyond this first stage of threshold relevance, and subject to the Crown’s assertions of privilege, I conclude that the WPP Records dealing with promises made to Person Y about the WPP, and any of his demands regarding the same, are first party records . Subject to claims of privilege, there is at least a reasonable possibility that disclosure of these records will assist the appellants in an argument on appeal that the earlier failure to disclose this information was in breach of the Crown duty to disclose all benefits and inducements offered to the witness.

For ease of reference, I will call these the “First Party WPP Records”. [Emphasis added.] [ 19 ] The Attorney General says any information beyond these categories should be subject to an O’Connor application. In Johnston , some of the records in question related solely to Y’s safety and security within the penitentiary system. The Crown noted that the WPP is administered by the RCMP, but the information is kept separate from investigators and, therefore, the records in its possession had nothing to do with the investigations of the appellants and are properly considered third party records.

The court said: [130] ... I do not accept the thrust of the appellants’ position that Person Y’s entrance into the WPP was so clearly at odds with his testimony that it amounted to apparent perjury and therefore the Crown had a duty to inquire further and to obtain records from third parties. [131] I therefore do not consider that the Crown had an obligation to obtain additional records from Canada regarding Person Y and the WPP.

In other words, the submissions and evidence on these applications do not persuade me that this was a case where additional records concerning the WPP held by other Crown entities were obviously relevant, requiring the Crown to inquire and “[bridge] the gap” between first party disclosure and third party production, as described in McNeil at paras. 47-51 . [132] I conclude that, in the circumstances of this case, the records held by Canada regarding the WPP and Person Y are third party records.

The appellants therefore have the burden of establishing that the information contained in the records is likely relevant.

[ 20 ] In my view Johnston is of limited assistance here. The records that were treated as third party records in that case, it appears, related solely to Person Y's safety and security within the CSC penitentiary system. The court (dealing with a fresh evidence application on appeal) held that this was “not a case where a key piece of evidence relating to the credibility of a key Crown witness was withheld from the defence during the trial.

The non-disclosure of information concerning Person Y and the WPP in the context of what was disclosed is at best minor and tangential.” [para 123] [ 21 ] In arguing that Jennings and Fischer are distinguishable, the Attorney General focuses on the determination in McNeil that the police disciplinary records were subject to first party disclosure.

As the Attorney General argues, the court in McNeil did not require disclosure of all disciplinary files held by a police agency regarding an officer involved in a prosecution, but only information about serious misconduct by police officers related to the investigation , or where the finding of misconduct could reasonably impact the case against the accused.

According to the Attorney General, McNeil goes no further than requiring the WPP to determine whether it is in possession of records speaking to the witness’s reliability or credibility, including a review of any records dealing with any financial assistance provided by the Program and information regarding any incidents of misconduct that would reasonably be expected to impact the credibility/reliability of the witness’s evidence. [ 22 ] The Attorney General submits (without specific evidence) that the WPP may be holding a wide range of information relating to the witness – including “medical history, financial, educational and employment history” – in determining the witness’s suitability, and in developing protective measures.

Such highly personal and confidential information, the Attorney General submits, should not be subject to a “blanket” production order on the sole basis that that it might be in the possession of the Program. That there must be a link drawn between the records and their relevance to trial. The Attorney General submits that such information should be subject to the O’Connor regime, as would be the case if an accused sought access to personal information relating to a normal witness.

The applicant replies that this is not the scenario in which is involved here, noting that the records in question relate to the negotiations between the Crown, police, WPP and the applicant, not to records held in a hospital or psychologist’s office. I agree that the Attorney General’s issue on this point seems somewhat speculative. [ 23 ] The Provincial Crown submits that the parties had previously been proceeding as if the records were subject to O’Connor production. Counsel submits that the timing of the motion has “thrown a spanner into the works”.

Counsel raises the spectre of a delay argument by the defence despite the fact that all the parties had been treating it as a third party record into January of this year. The Crown goes on to point out the extra work (for the Crown) and the complexity involved in obtaining and vetting the documents, resulting in disclosure to defence just prior to scheduled trial dates with the viability of proceeding as scheduled tenuous as a result. In reference to the Crown brief, the Crown advances no substantive argument for treating this as an O’Connor application.

The Crown’s objections are simply that it would be inconvenient, that the parties had previously proceeded as if this were a matter for O’Connor production, and (implicitly) that the defence should not be permitted to dispute the issue now. The applicant has replied, reasonably in my view, that the record does not bear out the claim that the applicant is at fault for any significant delay regarding these applications.

Conclusion [ 24 ] The court in Jennings took the view that McNeil indicates that information pertaining to the credibility and reliability of a witness will be subject to first party disclosure where that witness was integrally connected to the investigation. In my view, this case is similar to Fischer , where the WPP records related to a witness who was a material Crown witness that was integrally connected to both the police investigation and the prosecution case and the credibility and reliability of whose evidence was to have meaningfully impact the trial outcome.

It was also relevant that program funding could improve the lifestyle quality of a program participant and records of such funding could have a significant impact upon the witness’s credibility and reliability as a trial witness, and could inform the witness’s motivation to testify. [ 25 ] In this case, Mr. Bacon, having provided a KGB statement is a material witness for the Crown. According to the Crown’s brief, the victim’s injuries from the alleged aggravated assault resulted in permanent physical and mental disabilities.

In this context, as in Jennings and Fischer , this is a case where the Crown’s duty to make reasonable inquiries of other Crown agencies or departments under McNeil was triggered requiring the Crown to consider that WPP was in possession of evidence pertaining to the credibility or reliability of the witness. The Attorney General has agreed that any information respecting financial assistance to the witness, or of serious misconduct, is subject to first party disclosure.

In my view the caselaw suggests a broader range of first party disclosure, covering information relating to inducements and demands, and, generally, evidence going to the credibility and reliability of the witness’s evidence. Cumulatively, it appears to me that this would encompass all the requested information, subject to any exclusion under s 11(1) of the Act. [ 26 ] As indicated, the Attorney General has previously collected and vetted the WPP records. The applicant has indicated that it is only from these vetted records that the applicant seeks information relating to the credibility and reliability of Mr.

Bacon. [ 27 ] As a result, the application for first party disclosure is granted. Scaravelli, J.