Hairy Bull v Big Swallow, 2023 ABKB 261

Court of King’s Bench of Alberta Citation: Hairy Bull v Big Swallow, 2023 ABKB 261 Date: 20230428 Docket: FL06 03396 Registry: Lethbridge Between: Chelsea Rae Hairy Bull Respondent/Plaintiff - and - Ada Margaret Big Swallow Applicant/Defendant - and - Wade Hlady and Shahin Mehdizadeh, Chief of Police of the Lethbridge Police Service Third Party Respondents _______________________________________________________ Reasons for Decision on Production Application of the Honourable Justice E.J. Sidnell _______________________________________________________ Introduction [ 1 ] The Applicant, Ada Margaret Big Swallow, seeks production of Crown disclosure and police investigation records prepared

in relation to a criminal matter in which the Respondent, Chelsea Rae Hairy Bull, was the accused, described as follows in Ms. BigSwallow’s Application: 1. An Order that requires Chelsea Hairy Bull's defence counsel, Wade Hlady, to provide the disclosure materials provided to him inhis role as defence counsel on her behalf relating to charges that she committed Public Mischief and other related offences as set out inInformation # 220864912P1, which were set for trial in the Provincial Court of Alberta on January 10, 2023 at 9:30 AM in Courtroom#2. 2.

An Order that requires the Chief of Police of the Lethbridge Police Service, to provide the materials in his possession that were thefruits of the investigation undertaken by Cst.

Tristan Johnson into the actions of Chelsea Hairy Bull based on the complaint of Ada BigSwallow, which investigation resulted in the laying of a charge of Public Mischief against Chelsea Hairy Bull on July 30, 2021. [2] I will refer to the records described, above, as the “Crown Disclosure” and the “Police Investigation Records”, respectively.While Shahin Mehdizadeh, the Chief of Police of the Lethbridge Police Service, was named as an affected party, I will refer to thisaffected party generically as the “Lethbridge Police Service”. [3] This Application engages Rule 5.13 of the Alberta Rules of Court, AR 124/2010, as it relates to the Lethbridge PoliceService and Mr.

Hlady; however, the production of Crown disclosure also engages a screening procedure described in DP v Wagg, (ONCA). This screening procedure was summarized by Kraus J in College of Physicians v Dr Ghassan Al-Naami, 2022ABQB 438, at paras 43-45 and 47-48: In Wagg, a civil litigant applied to compel production of Crown disclosure from related criminal proceedings as part of the documentproduction stage of the civil litigation.

The Court held that there must be additional procedural requirements beyond the normal processfor document production to produce Crown disclosure, because there may be a public interest in protecting the identities and safety ofwitnesses from the criminal proceedings and in guarding the privacy of third parties who have provided information in thedisclosure: Wagg at para 23. Further, there may be issues of privilege or of public interest immunity surrounding the contents of thedisclosure that need to be addressed before it can be produced: Wagg at para 59.

To account for these public interest concerns, the Court held that any party in possession of Crown disclosure relevant to civilproceedings should list the disclosure in their affidavit of records. However, that party should object to producing the disclosure until theAttorney General has been given an opportunity to identify any public interest considerations that weigh against production: Wagg atpara 45. If the Attorney General does not identify any public interest considerations, the Crown disclosure may be produced.

However, if theAttorney General identifies public interest considerations, and the parties cannot consent to conditions or limitations on production toaccount for those interests, the parties must apply to the Court for an Order directing production. The Court must then weigh the publicinterest in putting the evidence forward against any public interest in keeping the disclosure private and decide whether to orderproduction of the disclosure and, if so, whether there are any appropriate limitations or conditions to impose: Wagg at paras 19, 45. . . .

I agree with the parties that Wagg sets out the governing law for when Crown disclosure must be produced in related civil proceedings:see Jabneel Construction Inc v Lamont (Town of), 2013 ABQB 648; Jackson v DA, 2005 ABQB 702; Lastiwka v TD WaterhouseInvestor Services (Canada) Inc, 2004 ABQB 740; see also Feuerhelm v Alberta (AG), 2017 ABQB 709. Although the Wagg process goes above and beyond the normal rules of procedure for compelling production of documents, it is anecessary extension of the Court’s jurisdiction to control its own process: Wagg at para 48.

As the Court held in Wagg, there is a publicinterest in protecting the identity and safety or witnesses and ensuring the privacy of third parties who have provided information in theCrown disclosure: at para 23. The litigants in civil litigation are unlikely to account for these interests, so there must be a mechanism inplace to express this perspective: Wagg at para 24. [4] Ms. Hairy Bull attended the initial hearing on April 12, 2023, but provided no responding affidavit to the Application forproduction of the Crown Disclosure. [5] At the initial hearing, it was not clear to me whether Mr.

Hlady was representing Ms. Hairy Bull. I enquired if Mr. Hladywas representing himself, and while he responded affirmatively, he proceeded with a submission regarding Ms. Hairy Bull’s position onthe Restraining Order Application. Ms. Hairy Bull confirmed on the record that she wanted to discontinue the Restraining OrderApplication but that she had not done so yet. Mr. Hlady submitted that his role was “a bit of a safeguard” because Ms. Hairy Bull has asignificant privacy interest in the Crown Disclosure. Mr. Hlady then said he did not act for Ms.

Hairy Bull as it was his view that, if thematter was to move forward, he would need his own counsel. Mr. Hlady followed this with a comment that Ms. Hairy Bull just wantedthe whole thing to be done. The lack of clarity in Mr. Hlady’s role at the initial hearing was compounded by his comments that he wasnot acting as counsel but then making submissions that counsel representing a party would make. I have addressed Mr. Hlady’ssubmissions notwithstanding this difficulty. [6] After the hearing, upon my request for clarification, Mr. Hlady confirmed that he was not representing Ms.

Hairy Bull at theApril 12, 2023 hearing and that Ms. Hairy Bull was self-represented. As a result, I invited Ms. Hairy Bull to make oral submissions onApril 21, 2023, the date that had been set at the initial hearing for me to issue my oral reasons. Rather than arrange for a further date fororal reasons, I decided to issue these written reasons. Factual context [7] Ms. Hairy Bull brought three applications for restraining orders against Ms. Big Swallow. Orders restraining Ms. Big

Swallow were granted on September 18, 2018 and November 1, 2019 (collectively, the “Restraining Orders”). Ms. Hairy Bull has afurther restraining order Application outstanding, which I was advised is the subject of a trial scheduled for June 8, 2023 (the“Restraining Order Application”). [8] Ms. Big Swallow asserts that the Restraining Orders were made on the basis of evidence fraudulently manufactured by Ms.Hairy Bull. Ms. Big Swallow has filed a cross-application seeking that the affidavits supporting the Restraining Orders, together with theRestraining Orders, be vacated, that Ms.

Hairy Bull be found in contempt of court and enhanced costs be awarded (the “Cross-Application”). [9] Ms. Hairy Bull was the subject of criminal charges which Ms. Big Swallow describes, in her Affidavit sworn February 23,2023: Ms. Hairy Bull was charged with various crimes as a result of impersonating me on social media and relying on social media posts andmessages that she created while impersonating me for legal proceedings including prior applications for restraining orders ... I attended for the scheduled trial in accordance with a subpoena served upon me.

When I attended at the Courthouse in Lethbridge I wasinformed by the Crown Prosecutor ... that she could not proceed with the trial because there was a necessary Crown witness, namelyMason Cross Child, who the police had been unable to serve with a subpoena. [The Crown Prosecutor] informed me further that becausethe file had been before the Court for so long and they were unable to secure the attendance of Mr. Cross Child, the Crown would bestaying the charge. As such, the criminal proceedings involving Ms. Hairy Bull in relation to those charges are at an end. Ms.

Hairy Bull had legal counsel, Wade Hlady, assisting her with the charges and he was present and appeared on her behalf on thescheduled trial date. I am given to understand from my lawyer, that Mr. Hlady, as defence counsel, will have been provided disclosure of the Crown's case inaccordance with the Crown's obligations pursuant to R v. Stinchcombe (SCC), [1991] 3 S.C.R 326 (SCC). Furthermore, the [Lethbridge Police Service] is also still in possession of the original materials that were the fruits of the investigationthey undertook in relation to my complaint that Ms.

Hairy Bull had impersonated me and relied on messages she purported weregenerated by me in court proceedings when, in fact, she had created those messages herself. . . . In order to establish that Ms. Hairy Bull has no legitimate reason to be fearful of me (in fact, quite the opposite is true) and that she hasrepeatedly and deliberately deceived the Court in previous appearances, I require the evidence that is in the hands of the LethbridgePolice Service and Ms. Hairy Bull's criminal defence lawyer.

Based on what I was advised by the investigating police officer ... thatinformation will likely establish that I did not author any of the materials that Ms. Hairy Bull claims emanated from me. It will likelyalso establish that the materials in question emanated from Gmail and Facebook accounts that were under the control of Ms. Hairy Bullat the relevant times. . . . ...

I did make a FOIP request and ... the majority of the 6476 pages of materials that were given to me in response to that request werecompletely blanked out in accordance with the redaction protocols employed by the Lethbridge Police Service. [10] Mr. Hlady, defence counsel for Ms. Hairy Bull in the criminal proceedings, described the Crown Disclosure he received asbeing an electronic record consisting of approximately 3000 pages. Mr. Hlady also submitted that the Crown Disclosure included “verypersonal” communications between Ms.

Hairy Bull and “her loved ones” and advised the Court that it included: 1. a “phone dump” from Ms. Hairy Bull’s cellphone, which was obtained under a search warrant, including approximately1200 pages of text messages, from June 6, 2020 to July 13, 2020, none of which were between Ms. Hairy Bull and Ms. Big Swallow; 2. IP addresses; 3. Correspondence between police officers in the forensic unit regarding

interpretation of the data; 4. Facebook messages; 5. Statement from Mr. Cross Child, the individual who made the report to the police; 6. Officers’ notes; and 7. Lethbridge Police Service case report. [11] Mr. Hlady asserted that some of the records contained in the Crown Disclosure were not relevant to the Restraining OrderApplication and the Cross-Application.

However, there was no affidavit evidence regarding any specifics, or descriptions of records, toassist in carving-out certain records from a production order. [12] While it appears that the Crown Disclosure is, in large part, relevant and material to the Restraining Order Application and theCross-Application, it is not clear if it is all relevant and material. Ms. Big Swallow brought an application for the production of theCrown Disclosure, which she has not seen. In resisting that application, Ms. Hairy Bull and Mr.

Hlady asserted that the Crown Disclosurecontained irrelevant and immaterial records but provided no affidavit evidence to assist the Court in making such a determination.

The screening procedure [ 13 ] Counsel for Ms. Big Swallow relied on Wagg and, in accordance with the Wagg screening procedure, Ms. Big Swallow gave notice of this Application to Alberta Justice on behalf of the Attorney General of Alberta. Counsel appeared on behalf of the Attorney General and referred the Court to two other relevant Alberta decisions: College of Physicians v Dr Ghassan Al-Naami and Jackson v DA , 2005 ABQB 702 . [ 14 ] In Wagg , at issue was the “Crown brief” and a “statement” made by the accused who was the defendant in a civil action.

The accused initially took the position that the Crown brief and statement were irrelevant but abandoned that position before the Court of Appeal.

However, relevancy and materiality arise in this case and, in my view, requires additional steps to be incorporated into the screening process. [ 15 ] In Wagg , at para 51 , Rosenberg JA also noted that where the Attorney General and the relevant police service confirm that there is no public interest concern, and have given their respective consent to the production, then there is no need to bring a court application as the Crown disclosure should be produced without judicial oversight. [ 16 ] In Wagg , at para 17 , Rosenberg JA described the screening process to be implemented when production of the Crown disclosure package is sought in Ontario.

I have paraphrased Rosenberg JA’s screening process using Alberta Rules of Court procedural terminology and incorporated steps for the assessment of the relevance and materiality of the Crown disclosure: 1. A party to a civil action, in possession or control of the Crown disclosure, which is relevant and material, as described in Rule 5.2(1), must disclose its existence in the party's Affidavit of Records and describe it as required by the Rules of Court : see Canadian Natural Resources Limited v ShawCor Ltd , 2014 ABCA 289 , at para 92 . 2.

In the event that the party disclosing takes the position that only a portion of the Crown disclosure is relevant and material, then that party must, without revealing the information in the Crown disclosure, describe all of the records, or bundles of records, contained in the Crown disclosure and whether that record, or bundle of records, is relevant to the civil action. For instance, in Wagg , at issue was the production of the “Crown brief” and a “statement” made by the defendant. In this case, Mr. Hlady described seven types of records: see paragraph [10]. 3.

The party disclosing the existence of the Crown disclosure should: (

a) object to produce the irrelevant and immaterial portions of the Crown disclosure; and (

b) object to produce the relevant and material portions of the Crown disclosure until: (

i) the Attorney General and the relevant police service have been notified and have consented to production of the Crown disclosure, and at that time the relevant and material portions of the Crown disclosure should be produced without Court order; or (ii) in the event the Attorney General and the relevant police service have not consented, or there is an issue of relevance and materiality, then, on notice to the parties to the action, the Attorney General, the relevant police service and any other affected parties: (1) a Court application must be made to determine whether any or all of the Crown disclosure should be produced; and (2) if an affected party takes the position that some or all of the Crown disclosure is not relevant and material, then that party should file evidence to substantiate that position. 4.

The judge hearing the application for production should consider, depending on the issues raised in the case, whether: (

a) all of the Crown disclosure is relevant and material; (

b) some of the records are subject to privilege or public interest immunity; and (

c) there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information. [ 17 ] The screening process I have described above was not followed. No submissions were made regarding the status of the civil litigation or whether Ms. Hairy Bull should have referred to the Crown Disclosure in an affidavit of records: see Jackson , at paras 48 to 50 . Without any information or context, I can make no comment about such obligations in this case.

However, I note that the Alberta Rules of Court , AR 124/2010 , in Rule 5.33 , provides that information and records produced in an affidavit of records must be treated as confidential and may only be used by the recipient of the information or record for the purpose of carrying on the action. Attorney General’s position [ 18 ] Counsel for the Attorney General noted that the Crown Disclosure had been reviewed to determine whether there was any public interest concern arising if it were to be produced in the civil action.

This review considered any public interest concern engaged by production, including whether there was an undercover operator, sensitive police tactics, or evidence found by a court to be obtained in breach of the Charter or sensitive third-party information, such as medical records. Counsel confirmed that the Attorney General was not aware of any public interest concern in production of the Crown Disclosure in this case, and that the Attorney General consents to the production of the Crown Disclosure in the possession of Mr.

Hlady. [ 19 ] Counsel for the Attorney General also noted that any restrictions that this Court believes are appropriate to ensure the

protection of the public interest can be placed on counsel for Ms. Big Swallow. This position was reiterated by counsel for the Lethbridge Police Service and Ms. Big Swallow. [ 20 ] Further, counsel noted that the Attorney General is not a party to the action, nor was it served with any application to produce documents. The Attorney General was provided notice of this Application in accordance with the Wagg screening procedure.

The Attorney General further submitted that it was not subject to applications for production of records under Rule 5.13, but since there was no such application before me this point need not be addressed. [ 21 ] Mr. Hlady provided to the Court, with the consent of counsel, a copy of the undertakings that, in his role as defence counsel, he accepted when he obtained the Crown Disclosure (the “Crown Undertakings”). The relevant portions of the Crown Undertakings are attached as

Schedule A to these reasons. [ 22 ] Counsel for the Attorney General confirmed that, to the extent necessary to produce a copy of the Crown Disclosure to counsel for Ms. Big Swallow in the civil action, Mr. Hlady was relieved of his obligations under the Crown Undertakings. Lethbridge Police Service’s position [ 23 ] Counsel confirmed that the Lethbridge Police Service consents to the production of the Crown Disclosure in the possession of Mr. Hlady. [ 24 ] Whereas the Crown Disclosure package contains approximately 3000 pages, the Police Investigation Records consist of approximately 6000 pages.

The Crown reviewed the Police Investigation Records and removed those that were not subject to disclosure in the criminal proceedings against Ms. Hairy Bull, including records retrieved from a “phone dump” from Mr. Cross Child, who was not served with this Application for production of the Crown Disclosure. [ 25 ] The Lethbridge Police Service acknowledges that it would be possible for it undertake a review of the 6000 pages contained in the Police Investigation Records so that those that are subject to disclosure could be produced to Ms. Big Swallow.

However, the Lethbridge Police Service submits that this would be a duplication of the work already undertaken by the Crown Attorney. [ 26 ] The Lethbridge Police Service position is that should this Court order the production of the Crown Disclosure, it should not be subject to such an order as it would require unnecessary effort on the part of the Lethbridge Police Service given that Mr. Hlady has a copy of the Crown Disclosure. Counsel for Ms. Big Swallow took no issue with the Crown Disclosure being produced by Mr.

Hlady as opposed to ordering the production of a redacted form of the Police Investigation Records. Analysis [ 27 ] The Crown Attorney and Lethbridge Police Service confirmed that they had no public interest concerns regarding production of the Crown Disclosure and that they consented to its production. Based on the Wagg screening process, this confirmation was enough for the production of relevant and material records contained in the Crown Disclosure. [ 28 ] Mr. Hlady opposed the application to produce the Crown Disclosure but confirmed that he could comply with such direction. Ms.

Hairy Bull’s submissions [ 29 ] Ms. Hairy Bull did not file any responding affidavit but made oral submissions. [ 30 ] Ms. Hairy Bull submitted that she felt uncomfortable, was concerned about her privacy as the Crown Disclosure included personal information. She explained that she applied for the Restraining Orders because she was scared. She said that no one listened to her, or had been on her side, and yet the two Restraining Orders were issued, which indicates to me that she was heard, and the Court accepted her submissions on those applications. Based on the submissions of counsel for Ms.

Big Swallow, I understand that the Restraining Orders are still in effect. [ 31 ] Ms. Hairy Bull also submitted that she was concerned about how she was treated by the Lethbridge Police Service; however, none of her allegations were in evidence. [ 32 ] Ms. Hairy Bull said that Ms. Big Swallow was not going to find anything in the Crown Disclosure. Counsel for Ms. Big Swallow asserted that, if that is the case, then there should be no issue in the production of it. I am of the view that this reply to Ms. Hairy Bull fails to consider two points.

Firstly, regardless of whether there is anything incriminating in the Crown Disclosure, the “phone dump” involved capturing everything on Ms. Hairy Bull’s phone during a certain period, regardless of relevance. I have no evidence as to whether all irrelevant records have been culled and excluded from the Crown Disclosure. The only person who would have that evidence is Ms. Hairy Bull and she did not submit an affidavit. Secondly, Ms. Big Swallow is the subject of two extant Restraining Orders restraining her from harassing Ms. Hairy Bull.

While I appreciate that those two Restraining Orders are challenged, and that Ms. Big Swallow wishes to rely on the Crown Disclosure to mount that challenge, no decision on Ms. Big Swallow’s application has been made. Relevance and materiality [ 33 ] The submissions of Ms. Hairy Bull and Mr. Hlady relating to relevance and materiality focused on the text messages from Ms. Hairy Bulls’ “phone dump”. Counsel for Ms. Big Swallow suggested that they might be relevant because Ms. Hairy Bull might have confessed to her family and friends that she was impersonating Ms. Big Swallow.

While full disclosure may be the foundation of civil

litigation, Ms. Big Swallow’s submissions make her inquiries sound like a fishing expedition. [ 34 ] While it would be preferable to have had evidence from Ms. Hairy Bull regarding why the text messages from her “phone dump” are personal and not relevant to the Restraining Order Application and the Cross-Application, I am left with considerable doubt as to how they could be relevant and material. I appreciate that in not having seen the text messages, Ms.

Big Swallow cannot make submissions on why they were specifically relevant and material, but I was provided no other reason than a possibility of an incriminating comment. I do not have enough evidence before me to determine that the “phone dump”, including Ms.

Hairy Bull’s texts, are relevant and material to the Restraining Order Application and the Cross-Application. [ 35 ] As a result, I find that the records consisting of the “phone dump” have not been shown to be relevant and material to the Restraining Order Application and the Cross-Application and that they should not be subject to a production order, at this time. I leave open the possibility some of the “phone dump” records could be shown to be relevant and material at a later time. [ 36 ] As to the records contained in the other six categories of the Crown Disclosure, as described by Mr.

Hlady, they were not the subject of submissions on relevance and materiality. I find that there is no issue of relevance and materiality relating to those records that would prevent production, but this does not mean that they are admissible at the trial as that determination is for the trial judge. Prevailing social value and public interest in non-disclosure [ 37 ] In the context of two extant Restraining Orders, I am concerned that ordering production of the “phone dump” would be perpetuating the behaviour that those Restraining Orders, although challenged, are designed to prevent.

Without specifics of how these records could be relevant and material in the Restraining Order Application and the Cross-Application, I find that there is a prevailing social value and public interest in non-disclosure in this case that overrides the public interest in promoting the administration of justice through full access of litigants to relevant information. Mr. Hlady’s submissions [ 38 ] Mr. Hlady submitted that with the Lethbridge Police Service being willing to produce the Crown Disclosure there was no need for him to do so.

He said he was reluctant to produce the Crown Disclosure because it would be acting against the interests of his former client. Crown Undertakings [ 39 ] Mr. Hlady noted that he had accepted the Crown Undertakings and agreed, among other things: (

a) not to use the Crown Disclosure for any other purpose than the defence of the criminal charges; (

b) not to disseminate the Crown Disclosure without the permission of the Crown; and (

c) to notify the Crown and seek permission of the Court in the event he wishes to make use of the Crown Disclosure for another purpose. [ 40 ] Mr. Hlady submitted that he was just holding the Crown Disclosure and that the Crown should have been named as a party so that the Crown could produce it and he would not be in the position of doing something that was not in the best interests of his client.

This position is not in accordance with any of the authorities cited on this Application: Wagg , Jackson or College of Physicians v Dr Ghassan Al-Naami . [ 41 ] Furthermore, relevant and material records in the possession of defence counsel, even if not in the physical control of a civil litigant, must be disclosed in that civil litigant’s affidavit of records under Rule 5.6(1)(b)(ii). As noted in Wagg , until the consent of the Attorney General and relevant police service is obtained, the records need not be produced: see para 79. [ 42 ] The Attorney General confirmed that it was relieving Mr.

Hlady of the Crown Undertakings to the extent necessary for the production of the Crown Disclosure. That is a full answer to this concern. Breach of Ms. Hairy Bull’s Charter rights [ 43 ] Mr. Hlady submitted that at least some of the Crown Disclosure was obtained in breach of Ms. Hairy Bull’s Charter rights. Mr. Hlady said that the Information to Obtain (ITO), which was relied upon for a search warrant, was obtained “under circumstances that could be contested” and that the search captured data from Ms. Hairy Bull’s telephone.

Although I have found the “phone dump” has not been shown to be relevant and material, because it is not clear whether this search warrant was also used to obtain the IP addresses, I have considered Mr. Hlady’s submissions on this issue. [ 44 ] Mr. Hlady asserted that the public mischief charge against Ms. Hairy Bull allegedly arose in relation to a false complaint made to the police; however, he said that Ms. Hairy Bull made no police complaint and that the complainant was Mr. Cross Child. There was no evidence before me regarding: (

a) the basis for the public mischief charge or any other charges set out in Information 220864912P1; (

b) the issuance or content of the ITO; (

c) who made the complaint to the police; and

(

d) any defects in any police search. [ 45 ] Mr. Hlady submitted that I could take notice of the fact that the charges against Ms. Hairy Bull were stayed in the criminal proceedings. The only evidence as to why charges were stayed is the affidavit evidence of Ms. Big Swallow and she said that there had been a lengthy delay and Mr. Cross Child had not been served with a subpoena. [ 46 ] Mr. Hlady further asserted that the complaint made to the Lethbridge Police Service, which gave rise to charges against Ms. Hairy Bull, was made at least in part as a result of unspecified actions of Ms. Big Swallow’s counsel.

This would result, according to Mr. Hlady, in counsel for Ms. Big Swallow being a witness in the civil proceeding and subject to application for removal as counsel. That application is not before me, and I decline to consider this submission. [ 47 ] I note that, unlike the situation in Wagg , since Ms. Hairy Bull’s criminal trial resulted in a stay of the charges, there has been no determination that Ms.

Hairy Bull’s Charter rights have been breached. [ 48 ] In Wagg , the plaintiff in a civil claim relating to an alleged sexual assault sought production of, among other things, the defendant doctor’s statement to police. At the criminal trial, the judge found that the police had violated the accused’s (defendant doctor’

s) right to counsel under s 10(

b) of the Charter and excluded the statements to police. Eventually, the criminal charges were stayed because of unreasonable delay. Records obtained as a result of a breach of the accused’s Charter rights was also addressed by Rosenberg JA in Wagg , at paras 61-62 and 70-71 : For the purposes of this case, I am also prepared to assume that the Divisional Court is correct that Charter values should inform the discovery process, including the production of the defendant's statement. Where I

part company with the Divisional Court is in their finding that production of the statement would bring the administration of justice into disrepute. First, that determination could only be made by a court that had been apprised of all the circumstances under which the statement was made. Second, I disagree with the Divisional Court that the same considerations that would lead to exclusion of the statement in the criminal context apply in the civil context. If the statement could be admitted in the civil trial, I do not see any basis for preventing its production at the discovery stage.

Third, even if a court could determine at this early stage that the statement would not be admissible at trial, in my view, it should still have been ordered produced. . . . Finally, even if the statement were not admissible at the instance of the plaintiff at the civil trial, it might be held to be admissible for the purpose of impeaching the defendant through cross-examination. ... If the defendant's statement is potentially admissible at trial, it should be subject to production. I can find no policy basis for refusing production of this apparently relevant, and perhaps highly probative evidence.

Even if I am wrong and the statement would not be admissible in evidence under any circumstances, in my view, the statement would still be subject to production. It is apparently relevant and its mere production may assist the plaintiff in assembling her case. I disagree with the Divisional Court that its mere production "would bring the administration of justice into disrepute" (para. 68).

I cannot identify any relevant Charter values such as privacy that would weigh against mere production of the statement. [ 49 ] In this case, I have no evidence relating to the alleged Charter breaches and no determination was made in the criminal proceeding. However, even had such a determination been made in the criminal proceeding, I find that Rosenberg JA’s analysis, quoted above, to be applicable in that it requires the evidence that was obtained as a result of a Charter breach to be produced in the first instance and for the trial judge in the civil action to determine whether such evidence is admissible.

Privacy interests [ 50 ] Mr. Hlady submitted that there were privacy concerns with the production of the Crown Disclosure and, as discussed below, articulated some of those privacy concerns. Mr. Hlady also submitted that there might be privacy concerns that he, as former defence counsel, is not familiar with. However, this is addressed, to a certain extent, by the review of the Attorney General and its confirmation that it is not aware of any public interest concern with the production of the Crown Disclosure. Ms. Hairy Bull’s privacy [ 51 ] Mr. Hlady addressed Ms.

Hairy Bull’s privacy interests in the Crown Disclosure, even though he was not acting for Ms. Hairy Bull at the initial hearing. [ 52 ] Confidential and private records are regularly produced in civil litigation and governed by the confidentiality obligation and restriction on use as set out in Rule 5.33. I am satisfied that if the requirements of Rule 5.33 are applicable to the producible Crown Disclosure that Ms. Hairy Bull’s privacy interests are adequately protected. Third-party privacy [ 53 ] Mr.

Hlady also raised a concern that the privacy interests of third parties would not be adequately protected if the Crown Disclosure was ordered to be produced. Mr. Hlady submitted that, in this case, it is the “phone dump” which is primarily in issue, which was obtained by a search warrant and a subsequent analysis of cellphone records. As a result, it is submitted, there is another party on the other side of each conversation by text whose privacy rights are affected. [ 54 ] Mr.

Hlady submitted that Wagg is distinguishable because at issue was a statement made to police by the accused, who was also the defendant in a civil action. In fact, there were two aspects of the Wagg decision: the general contents of the “Crown brief” and the statements made by the accused (defendant doctor) to the police. I disagree that Wagg is distinguishable.

[ 55 ] In Wagg , Rosenberg JA commented on the privacy rights of third parties, at paras 49-50 and 53-54, before addressing the specific concerns relating to the accused’s statement to the police: I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1. The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings.

Further, the Stinchcombe obligation on the police and Crown is very broad. Subject to privilege the Crown must disclose all relevant information. ... Admittedly, the screening mechanism ... is not a perfect solution. The obligation to notify the Crown and the police may not fully protect the privacy interests of third parties. Those third parties will be dependent upon the Crown or police protecting their interests or notifying them so that they can protect their own interests. ... However, I see no reasonable alternative. . . .

In considering a request for production, the police and Crown will bear in mind the comments by Vertes J. in Fullowka v. Royal Oak Mines Inc. ... that the Crown does not have a simple proprietary interest in the Crown disclosure.

As he said at para. 15, "the 'fruits of the investigation' in the possession of the Crown 'are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done'." Society has an interest in seeing that justice is done in civil cases as well as criminal cases and, generally speaking, that will occur when the parties have the opportunity to put all relevant evidence before the court. The Crown disclosure may be helpful to the parties in ensuring that they secure all relevant evidence.

The guiding objective to be applied by the parties, the state agents and the court hearing any motion for production thus ought to be what Anderson J. said in Reichmann v. Toronto Life Publishing Co. ...

"The consistent tendency in this Province has been to broaden and not circumscribe the right of discovery." This principle is founded on the underlying principle accepted by the Supreme Court of Canada for both civil and criminal cases in Stinchcombe where Sopinka J. said, at p. 332 S.C.R.: "This change [to full discovery in civil cases] resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met." And as he said, at p. 335 S.C.R., "[T]he principle has been accepted that the search for truth is advanced rather than retarded by disclosure of all relevant material." [ 56 ] As noted by Rosenberg JA, the principle at stake is greater than that of the privacy interests of one or more third parties.

The principle is that justice is better served when surprise is eliminated, and the parties are prepared to address the merits of the case on complete information. [ 57 ] It appears that the Crown Disclosure may contain information gathered from third parties. Counsel for the Lethbridge Police Service noted that of the 6000 pages contained in the Police Investigation Records, approximately 3000 pages formed the Crown Disclosure. As a result, there has already been some review for relevance and to establish the scope of the Crown’s obligation to disclose.

I have further found that the “phone dump” is not relevant and material and that likely significantly further reduces the information gathered from third parties. [ 58 ] In Wagg , at para 50 , Rosenberg JA noted that the screening system is not a perfect solution, but he found that there was no reasonable alternative.

I find that giving notice to each third party whose information or documents are contained in the Crown Disclosure notice of the Application for production and an opportunity to make submissions is not practical, and there were no grounds shown for doing so in this case. [ 59 ] As noted above, the Crown Disclosure can be made subject to the obligations of Rule 5.33 to impose an obligation of confidentiality and a restriction on use.

While this is not a perfect solution, it is the answer in all civil cases when a third party’s information is disclosed. [ 60 ] I have received confirmation from the Crown Attorney and the Lethbridge Police Service that there is no public interest concern with production. No specific concerns regarding the privacy interests of third parties was articulated by Mr. Hlady. If the obligations of Rule 5.33 are imposed on the production of the Crown Disclosure I find that, in this case, the privacy interests of third parties whose information or records is contained in the Crown Disclosure will be adequately addressed.

Conclusion on privacy issue concerns [ 61 ] The screening process described by Rosenberg JA in Watt , and adopted by this Court in Jackson and College of Physicians v Dr Ghassan Al-Naami , requires the Crown Attorney and relevant police force to review the Crown disclosure and advise the applicant seeking production whether they are aware of any public interest concern. That was done here, and the Crown Attorney and the Lethbridge Police Force confirmed that they were not aware of any public interest concern.

Based on Wagg , that would be an end to the matter and the litigant with possession, or control over, the Crown disclosure would then be required to instruct counsel to disclose it. [ 62 ] Mr. Hlady submits that if he is ordered to produce the Crown Disclosure, then he must undertake a review of each of the approximately 3000 records “to determine the privacy interests that are and are not at play” and to vet the records through a civil perspective instead of the perspective of defending Ms. Hairy Bull in the criminal proceeding. With respect, this is a misunderstanding of the screening process.

The review is undertaken by the Crown Attorney and the relevant police service. If those parties confirm that there is no public interest concern regarding the records that were produced by the Crown, then not only does Mr. Hlady not have to review the Crown Disclosure before producing it, he must produce all of it, or that portion of it that he is directed to produce, and he will have no ability to withhold records on any basis, including privacy interests. Conclusion [ 63 ] The Wagg screening process was implemented for the production of the Crown Disclosure but it does not include a step to

determine relevancy and materiality. The Attorney General and the Lethbridge Police Service consented to the production. If it were not for the relevancy and materiality and prevailing social value and public interest concerns, no further steps were needed to be taken and the Crown Disclosure could have been produced. [ 64 ] I have found that not all of the Crown Disclosure has been shown to be relevant and material but have acknowledged that the disclosure of the relevant and material positions of it may show that the “phone dump” or some portion of it is relevant and material.

In such event, the prevailing social value and public interest concerns can be re-examined with more specificity. [ 65 ] Notwithstanding the consent of the Attorney General and Lethbridge Police Service, Mr. Hlady and Ms. Hairy Bull resisted production for the reasons set out above.

However, I find that none of the submissions provide a basis for resisting production of the Crown Disclosure that I have found is relevant and material. [ 66 ] I agree with counsel for the Lethbridge Police Service that ordering the review and redaction of the Police Investigation Records would be an inefficient use of police resources given that, the Crown Disclosure is available and can be produced by Mr. Hlady. [ 67 ] I find that the Crown Disclosure should be produced by Mr. Hlady on the following terms: (

a) The relevant and material Crown Disclosure shall be produced to counsel for Ms. Big Swallow as an electronic copy within 14 days of the date of issuance of these reasons, which, for clarity is all of the Crown Disclosure, except for the “phone dump” from Ms. Hairy Bull’s cellphone; (

b) The Crown Disclosure produced shall, in the hands of Ms. Big Swallow and her counsel, be governed by Rule 5.33(1) as if the Crown Disclosure was listed in Rule 5.33(2); and (

c) In addition to the obligations set out in Rule 5.33(2), counsel for Ms. Big Swallow: (

i) shall maintain the produced copy of the relevant and material Crown Disclosure at her office, where it can be viewed by Ms. Big Swallow; and (ii) shall not permit copies to be made or produced, by copying, printing or any other method, except for the purpose of use in this action. (

d) Leave is granted to Ms. Big Swallow to bring a further application for the production of the “phone dump”, or a portion of it, on evidence that it is relevant and material; in which case, counsel for Ms. Big Swallow can write to me, copying the other parties and affected parties, and I will make arrangements for that application to be heard. [ 68 ] In the event that the parties cannot resolve the issue of costs, they may contact me after they have tried to resolve the matter themselves and no earlier than 30 days after, and no later than 60 days after, issuance of these reasons.

Heard on the 12 th day of April, 2023 and on the 21 st day of April, 2023. Dated at the City of Calgary, Alberta this 28 th day of April, 2023. E.J. Sidnell J.C.K.B.A. Appearances: Ms. Hairy Bull the Respondent/Plaintiff, was self-represented Ingrid Hess for the Applicant/Defendant Wade Hlady for the Third Party Respondent, Wade Hlady,

former defence counsel to Ms. Hairy Bull Kerry Gellrich for the Third Party Respondent, Shahin Mehdizadeh, Chief of Police of the Lethbridge Service Timothy Dooley for the Attorney General, served as an affected party under the Wagg screening procedure

Schedule A Crown Undertakings Alberta Crown Prosecution Service (ACPS) . . . We are providing disclosure herewith with respect to the above-noted matter. We are advising you of the potential existence of third party information contained in unvetted format in this disclosure package. We must ensure that steps are taken to safeguard any third party information from improper dissemination, but do not wish to unnecessarily delay disclosure by vetting this information.

Third party information includes such personal details for civilian witnesses as home or work addresses, telephone numbers, dates of birth, and other private information that might be contained in this disclosure package. We are content to handle these third party privacy issues pursuant to undertakings of counsel. If you are content to receive disclosure in this unvetted format, we require your express undertakings in relation to these materials as follows: 1. That they will be used only for the purpose of making full answer and defence by the accused to the charges identified in these materials (see R. v.

Little (2000)(Alta P.C.)); 2. That they will be kept secure and not published or otherwise disseminated to any person not subject to these trust conditions without the permission of Crown Counsel; they may be distributed to the accused; 3. That they will not be copied, for reasons other than as set out in condition #1 above, without the permission of Crown Counsel; 4. That any portion of the electronic recording which discloses the address of the complainant or other witnesses will not be played for the accused; 5. That all future disclosure provided on this file is subject to these trust conditions; 6.

That should you wish to make use of these materials for any other purpose, you agree to notify Crown Counsel of your intention to do so and seek permission of the Court by filing a Notice of Motion in the trial Court. If you are not prepared to offer these undertakings, these materials are to be returned to the Lethbridge Crown Office of Alberta Justice so that proper vetting of the materials can be completed. In the event that you cease to act, the contents of this disclosure package are to be returned forthwith to the Lethbridge Crown Office of Alberta Justice. . . . [emphasis in the original]