R v McKee, 2023 ABKB 579

Court of King’s Bench of Alberta Citation: R v McKee, 2023 ABKB 579 Date: 20231016 Docket: 220983100Q1 Registry: Edmonton Between: His Majesty the King Crown - and - John McKee Accused - and - Chief of The Edmonton Police Service, Edmonton Police Association, and Detective Jared Ruecker Intervenors - and - Criminal Trial Lawyers’ Association Applicant (Proposed Intervenor) and -

The Minister of Justice of Alberta Applicant (Proposed Intervenor) _______________________________________________________ Reasons on Intervenor Applications of the Honourable Justice Eric F. Macklin _______________________________________________________ I. Factual Background [ 1 ] The Criminal Trial Lawyers’ Association (CTLA) applies for leave to intervene in the Accused’s application for disclosure of disciplinary records relating to Edmonton Police Service (EPS) member Det Ruecker. The Minister of Justice of Alberta seeks standing to intervene in the CTLA application. [ 2 ] Mr.

McKee is charged with indictable offences prosecuted by the Public Prosecution Service of Canada (PPSC). He has applied to the Court for an order that the PPSC disclose to him a Decision of Hearing related to a finding of misconduct by Det Ruecker contrary to s 5 of the Police Service Regulation , Alta Reg 356/1990 ( PSR ). [ 3 ] The Decision of Hearing was provided to PPSC by EPS in July 2015 in relation to a different criminal proceeding. At that time, PPSC deemed the finding of misconduct to be serious enough to impact on Det Ruecker’s credibility and reliability as a witness in a criminal proceeding.

The Acting Chief Federal Prosecutor directed that a redacted version of the Decision of Hearing be disclosed to the defence in any criminal matter in which Detective Ruecker played more than a peripheral role, citing their obligations arising out of R v McNeil , 2009 SCC 3 . [ 4 ] Pursuant to s 22 of the PSR , records of the punishment, contravention, and action taken with respect to Det Ruecker’s finding of misconduct were subsequently destroyed by EPS when 5 years had lapsed since the finding of misconduct without another contravention of the PSR by Det Ruecker.

However, PPSC still holds the Decision of Hearing. [ 5 ] PPSC takes the position that the Decision of Hearing must be provided to Mr. McKee pursuant to McNeil because Det Ruecker played more than a peripheral role in the investigation into offences allegedly committed by Mr. McKee. Accordingly, PPSC has consented to Mr. McKee’s application. [ 6 ] The Chief of EPS as the record holder and Det Ruecker were granted standing with respect to Mr. McKee’s application. Both parties oppose disclosure of the Decision of Hearing to Mr. McKee by PPSC.

The issue to be decided is whether PPSC is prevented from disclosing to accused persons records of police officer misconduct that have been destroyed by EPS pursuant to s 22 of the PSR . [ 7 ] If the Court dismisses Mr. McKee’s application, the CTLA seeks intervenor status to raise a constitutional challenge to s 22 of the PSR . The CTLA seeks to make submissions on the specific issue of whether s 22 is a breach of an accused person’s right to a fair trial and to make full answer and defence as guaranteed by ss 7 and 11(

d) of the Charter which cannot be saved by s 1. Upon receiving notice of the CTLA’s application, the Attorney General of Alberta (Alberta) filed an application contesting the CTLA’s application. [ 8 ] The CTLA’s application for leave to intervene is dismissed. Alberta’s application for standing to contest the CTLA application is also dismissed. II. Law A. Legislation [ 9 ] Rule 2.10 of the Alberta Rules of Court provides:

2.10 On application, a Court may grant status to a person to intervene in an action subject to any terms and conditions and with the rightsand privileges specified by the Court. [10] There is no test set out to guide a Court’s decision on an intervenor application. Rule 2.10 confers a broad discretionary powerto decide on, and to define the contours of, an intervenor’s participation. Prior to the enactment of Rule 2.10, the Courts developed abody of common law applicable to intervenors, which continues to apply. B.

Case Law [11] The power to allow intervenors is discretionary and should be exercised sparingly: Orphan Well Association v GrantThornton Limited, 2016 ABCA 238 at para 11. Granting intervenor status is a two-step process. The Court must consider the subjectmatter of the proceeding and then determine the proposed intervenor's interest in it: Papaschase Indian Band (Descendants of) vCanada (Attorney General)), 2005 ABCA 320 at para 5.

In determining a proposed intervenor's interest, the Court should examinewhether the intervenor will be directly and significantly affected by the proceeding’s outcome, and whether the intervenor will providesome expertise or fresh perspective on the subject matter that will be helpful in resolving the appeal: Orphan Well at para 8.

A proposedintervenor must establish an affected interest and provide a fresh perspective: Pedersen v Alberta, 2008 ABCA 192 at para 10. [12] The Court must consider and weigh those factors that are present and balance their collective weight against the need toensure that the process remains manageable with the issues properly defined.

The Court must ensure that the presence of intervenorsdoes not result in a needless expansion of the lawsuit, overly complicate the case, delay the proceedings or prejudice any party: AlbertaUnion of Provincial Employees v Alberta, 2019 ABQB 553 at para 11, citing Telus Communications Inc v TelecommunicationsWorkers Union, 2006 ABCA 297 at para 4. [13] Intervenors at the trial level are rare. Appellate Courts are more willing and able to consider intervenor applications than aCourt of first instance.

Appellate Courts deal with a pre-established record that is not normally subject to change and are far betterequipped to limit and control the length and nature of the submissions by intervenors. Trials, on the other hand, must remain manageableand the parties must be able to define the issues and the evidence on which they will be decided: First Nations of Saskatchewan vCanada (Attorney General), 2002 FCT 1001 (Fed TD) at para 10; Rab (RE), 2019 ABPC 178 at para 38. III. Analysis [14] The subject matter of Mr.

McKee’s application is whether s 22 of the PSR operates to prevent PPSC from disclosing toaccused persons records of police officer misconduct that have been destroyed by EPS. This is a question of statutory

interpretation. TheCTLA is raising an entirely new issue: whether s 22 of the PSR is constitutional. [15] The CTLA must establish that it will be directly and significantly affected by the proceeding and that it will provide someexpertise or fresh perspective on the matter that will be helpful in resolving the proceeding. [16] The CTLA must first establish that it will be directly affected by the proceedings. To do so, it must establish that it has a legalinterest in the proceedings.

Mere curiosity, an intellectual interest, a policy-based concern, or a personal interest are generally notsufficient: Reference Re Greenhouse Gas Pollution Pricing Act, 2019 ABCA 349 at para 29; Reference Re Impact Assessment Act,2020 ABCA 94 at para 12. [17] The CTLA argues that it represents the interests of accused persons at large and the constitutionality of s 22 of the PSR willhave a direct effect on all accused persons. However, the CTLA itself is not directly affected by the proceeding.

Its interest is policy-based and may be classified as an interest in the jurisprudential or precedential effect of the decision rather than one that will directlyaffect the CTLA or the interests of all accused persons. Not all accused persons will be affected by the outcome of this decision. Theperspective and interest of an accused person who will be affected by the outcome is being represented by Mr. McKee. [18] The CTLA argues that its presence is necessary to properly decide the matter.

The issue of the constitutionality of s 22 of thePSR has never before been addressed by this Court and is not being raised by any of the other parties, particularly Mr. McKee or theCrown. [19] The CTLA’s presence is not necessary for the Court to properly decide the matter. The parties are disputing the statutoryinterpretation of s 22 of the PSR, not its constitutionality. The CTLA is not advancing a position on the

interpretation of s 22. Rather, it isproposing to argue a completely new issue not raised by any of the other parties. Further, s 22 must be interpreted with the benefit of thepresumption of constitutionality: Canadian Industrial Gas & Oil Ltd v Government of Saskatchewan et al, (SCC),[1978] 2 SCR 545 at 573. [20] The CTLA argues that it has a long-recognized specialized experience and knowledge in the area of policing issues in Albertaand, as such, their experience and knowledge will bring a useful and different perspective to the matter. No further description has beenprovided as to how this experience and knowledge makes the CTLA well-positioned to present arguments on the

interpretation of s 22 ofthe PSR. The Court’s ability to assess whether a proposed intervenor will bring a useful and different perspective is tied to how clearlythe intervenor articulates the submissions it seeks to advance: Orphan Well at para 13.

Bare assertions that one has a unique perspectiveis not sufficient. [21] Finally, a Court must be careful not to allow an intervenor to needlessly expand or overly complicate a proceeding, delay theproceedings, or prejudice any party: Telus Communications Inc v Telecommunications Workers Union, 2006 ABCA 297 at para 4.There are currently four parties to this application, all of them by right. I am confident that the Court will benefit from fulsome argumentand a variety of perspectives on the issue raised by Mr. McKee.

The benefits of adding a fifth party and a constitutional question areoutweighed by the challenges of an incomplete evidentiary record and issues that are still evolving.

[ 22 ] It is not appropriate for an intervenor to extend legal argument beyond what the parties have advanced: AC and JF v Alberta , 2020 ABCA 309 at para 11 , citing Deloitte & Touche LLP v Ontario (Securities Commission) , 2003 SCC 61 at para 31 . In particular, an intervenor should not be permitted to raise constitutional issues where no constitutional issues have been raised in the pleadings: AC and JF at para 11 . Constitutional questions should not be decided in a factual vacuum.

The CTLA’s participation may deprive an actual accused of the opportunity to argue the issue in a more complete manner and with the benefit of the particular circumstances that bring them before the Court. [ 23 ] Alberta has applied for standing to contest the CTLA’s application. The application is moot in light of my decision not to grant leave for the CTLA to intervene. However, I would note that Alberta’s application is premature. It is roughly analogous to a party seeking intervenor status in another party’s leave application at the appellate level.

When Alberta filed its application, permission to intervene by the CTLA had not been granted. Intervenors at that stage of the application should be discouraged because in the absence of permission to intervene being granted, there is no immediate interest that can be directly affected by the application: Balancing Pool v ENMAX Energy Corporation , 2018 ABCA 143 at paras 20 – 22 . [ 24 ] If the CTLA’s application was granted, then Alberta would be well positioned to apply to intervene, but unless and until permission is granted, Alberta’s interests are not at risk: ENMAX at para 21.

While Alberta received a Notice of Constitutional Question from the CTLA, it does not have an affected interest unless and until the CTLA’s application for leave to intervene is granted. If the constitutionality of s 22 of the PSR is raised by any of the parties, Alberta would certainly be granted intervenor status because it would be directly affected by the result. IV. Conclusion [ 25 ] The CTLA’s application for leave to intervene is dismissed.

Should the landscape change, for example if one of the parties raises a constitutional issue, the CTLA has leave to renew its application. [ 26 ] Alberta’s application for standing to contest the CTLA’s application is also dismissed. Should a constitutional question be raised in this proceeding, Alberta has leave to apply for standing or intervenor status. Heard on the 19 th day of September, 2023. Dated at the City of Edmonton, Alberta this 16 th day of October, 2023. Eric F. Macklin J.C.K.B.A. Appearances: Shelly Tkatch and Donald MacCannell For the Crown ( Not a party to the Application ) Daniel Song, K.C.

For the Accused ( Not a party to the Application ) Megan Hankewich For the Intervenor, Chief of Edmonton Police Servicer ( Not a party to the Application )

Patrick Nugent For the Intervenors, Edmonton Police Association and Det. J. Ruecker ( Not a party to the Application ) Caitlin Dick for the Applicant, Criminal Trial Lawyers’ Association Ryan Martin and Wendy-Anne Berkenbosch for the Applicant, The Minister of Justice of Alberta