This week’s top three summaries: R v Rabbit, 2023 ABCA 170: #gladue reduction, R v TJH 2023 YKCA 2: #CSO for s.151, and R v Gabad, 2023 ABKB 267: s.7 #witness protection records.
This week’s top two cases deal with sentencing issues. For great general reference on the law of sentencing, I recommend the Emond title below. It is available for purchase now for our readership with a 10% discount code provided below. To purchase, simply click on image below.
Sentencing: Principles and Practice
By Danielle Robitaille & Erin Winocur
R v Rabbit, 2023 ABCA 170
[May 30, 2023] Sentencing: Glade Mitigation and Exercise in Empathy [Antonio and Ho JJ.A. with Schutz J.A. no participating in final disposition]
AUTHOR’S NOTE: This case provides an excellent example of where the proper application of a Gladue principles can result in a significant reduction in sentence. Here a sentence of 9 years was reduced to 4 years for aggravated assault and choking to overcome resistance. As well, the Court suggests a useful exercise for courts imposing sentence on indigenous accused: ask yourself if your instinctive reaction to the offence would be the same “if the offender were of a different race, culture or background.”
Introduction
[1] The appellant, Rockie Ryan Rabbit, appeals his sentences of nine years concurrent for attempted choking with intent to enable him to commit an indictable offence (section 246(a) of the Criminal Code) and aggravated assault (section 268). The sentence of nine years was imposed after the defence proposed a sentence of three years and the Crown proposed a sentence of six years.
Background facts
The appellant’s background
[2] The appellant is an Indigenous man from the Montana First Nation in Ponoka County, Alberta. His father, mother and her siblings, and grandparents attended residential schools. The family has a history of suicide, substance misuse and mental health issues.
[3] The appellant lived with his mother until he was five years old. She used drugs and drank alcohol daily, and was physically abusive towards him at times. Because of his mother’s drinking and drug use, he and his siblings were placed in group care away from the Montana First Nation.
[4] The appellant lived in two group homes from ages five to eleven. His sister reports, “it was really difficult for us to be raised without our parents and our culture”. While in group care, the appellant saw his mother once per year and did not see his father until he was 10 years old. At age nine, an aunt he was close to was killed in a house fire.
[5] During this time the appellant felt out of place and was ostracized and bullied because he and his siblings were the only Indigenous children at their school. The appellant described being disconnected from his family and culture, which left him feeling lost and like he did not belong.
[6] When the appellant was 12, he and his sisters moved back to the Montana First Nation to live with their father. Moving back to the reserve was a shock. The children struggled to relate to the community after being in group care. Previously incarcerated for murder, their father had a violent temper and was at times physically and emotionally abusive towards them. According to the appellant’s sister, their father “tried to help connect us with culture and get us on the right path, but he eventually gave up on us and sent us to our mom’s”.
[7] The appellant moved to live with his mother at age 15. He says his mother’s priority was her prescription medicine addiction. She would often ask her children for money. There was a great deal of poverty and often there was not enough food. The appellant says his mother kicked him out at age 17.
[12] In 2019, at age 28, the appellant began struggling with depression, though he was never formally diagnosed. He also began using methamphetamines on a regular basis. He reports that he used crystal meth monthly when he spent time with relatives who were using. Often, he would use the drug daily for a week and then not for the remainder of the month.
[13] Beginning in 2020, the appellant and his family suffered a series of devastating losses. A cousin committed suicide. Another cousin was murdered while incarcerated. A cousin’s son hung himself. An uncle died of a heroin overdose. One of the appellant’s brothers committed suicide, likely in connection with his addiction to crystal meth. The appellant was close to his brother and found this loss to be extremely difficult. His sister says that at this point the appellant increased his alcohol and drug use.
[14] In the summer of 2021, shortly before the subject offence, the appellant lost another cousin, who was also his best friend. His brother reports that the death of this cousin was a trigger for the appellant. The appellant says he began using substances more heavily at this time. The appellant was described as normally quiet and gentle, but his sister notes that “he is a completely different person when he is using; he becomes angry and violent”.
[15] Also in the summer of 2021, the appellant decided to move his daughter back to live at the Montana First Nation with him. According to his sister, his daughter’s mother did not feel the reserve was safe, and the appellant lost custody as a result. His sister reported that this was very difficult for the appellant.
The offence
[16] On the afternoon of July 14, 2021, the appellant committed a brutal and unprovoked attack on a stranger. The appellant was 30 years old at the time.
[17] The victim was waiting to be let into her children’s daycare. The appellant came up behind her and looked inside her backpack. When the victim tried to pull away, the appellant shouted at her, “did you kill my daughter?” and demanded to know where she had hidden his child.
[18] The appellant told the author of his Gladue report he had been using drugs and was experiencing hallucinations that his daughter had been kidnapped two days prior. He said he had been stopping random people and asking them where his daughter was. When he approached the victim, he believed she had his daughter. This was the first time the appellant had experienced this type of reaction to drug use.
[19] The victim tried to get away, but the appellant grabbed her head, slammed her to the ground, got on top of her and began strangling her with both hands. He continued strangling and punching her for over four minutes.
[20] Two of the victim’s three children, ages six and eight, observed the assault through the glass door of the daycare and cried hysterically.
[21] … The appellant got up when the police ordered him to do so….
[22] The victim’s husband arrived after hearing her screams from half a block away. He was distraught when he observed her condition. She appeared to be semi-conscious and was unresponsive. Her face was blue, and her breath was shallow and laboured. She foamed at the mouth and gurgled.
[23] The victim regained consciousness and was rushed to hospital. She sustained a tennis ball sized hematoma on her forehead, swelling and inflammation on her neck, and other injuries.
The sentencing judge’s decision: R v Rabbit, 2022 ABPC 68
[30] The sentencing judge found that the case against the appellant was overwhelming and that the sole mitigating factor was the entry of guilty pleas. She found several aggravating factors, including:
1) the attack was vicious, random and unprovoked;
2) the violence was prolonged;
3) the violence only ceased when the police arrived;
4) the medico-legal report indicated the actions of the appellant could have ended in the victim’s death;
5) the victim suffered both physical and psychological harm as a result of the assault;
6) two of the victim’s children witnessed the attack and have suffered psychological harm;
7) the victim’s husband heard his wife’s screams, attended the scene to discover his unconscious wife and was extremely distraught;
8) the appellant was on release for assaulting his brother when he committed the offences;
9) the appellant has a prior criminal record, although it is fairly brief and only the assault involved violence; and
10) there was evidence of voluntary consumption of methamphetamine and the resulting violence, and the history of methamphetamine use is aggravating.
[31] The sentencing judge acknowledged the appellant’s Gladue factors were significant but held “where the offences are violent and serious, the principal [sic] of restraint and an acknowledgement of the lessened moral blameworthiness of an individual with significant Gladue factors cannot justify a sentence that ignores the seriousness of the offences and the harm done to the victim”: Rabbit at para 17.
[34] She held the case at bar was closer to near murder than mere accident, and that the sentence for aggravated assault should be significantly increased because it was accompanied by choking. In her view, its seriousness was not adequately reflected in the Crown’s proposed six-year sentence.
[36] She imposed nine years for each offence, less credit for pre-sentence custody, to be served concurrently having regard to the principle of totality.
Did the sentencing judge commit errors in principle?
[40] We conclude the sentencing judge committed errors that impacted the sentence, and therefore the appeal must be allowed. Our conclusion rests on two main foundations:
1) Sentencing must be proportionate not only to the gravity of the offence, but also to the degree of responsibility of the offender.
2) In cases involving Indigenous offenders, particular attention must be paid to assessing their degree of responsibility equitably, with an informed understanding of their circumstances.
[41] Our first foundational point is the fundamental principle of sentencing, stated at section 718.1 of the Criminal Code.
[42] Vats of judicial ink have been spilled over the second foundational point. Still, Indigenous people continue to be vastly overrepresented in the criminal justice system, and this overrepresentation continues to rise: R v Hills, 2023 SCC 2 at para 87; R v Natomagan, 2022 ABCA 48 at paras 7, 8.
[43] With or without a Gladue report, s 718.2(e) of the Criminal Code requires judges to do the work of appreciating the degree of responsibility of Indigenous offenders. The Gladue report filed in this case is tragically typical. It could have been drawn from past jurisprudence, studies and reports, beginning with the appellant’s parents’ residential school experience. The appellant endured abuse and addictions in his family home, was taken out of his community and placed in group care, and struggled to readjust to his home community, poverty, low education levels, disconnection from family and culture, unstable relationships, and depression.
[44] In the couple of years preceding the offence, the appellant lost family members to suicide, murder, and overdose. A year prior to the offence, his brother committed suicide. Suicide rates are high in Indigenous communities: Natomagan at para 105 and sources cited therein. The summer of the offence, his close cousin died.
[46] After losing his brother and cousin, the appellant effectively lost his daughter. According to his sister, this was because the girl’s mother believed that the reserve was not a fit place for a child.
[47] To apply s 718.2(e), sentencing judges must try to understand what influenced an Indigenous offender to act in the way he did. It also includes assessing whether one’s instinctive reaction to that conduct would be the same, given the circumstances, if the offender were of a different race, culture, or background. This analysis involves empathy, imagination, and introspection, among other things. It imposes on the sentencing judge the difficult task of imagining a different life, and honestly asking how a person – not the world’s strongest or most resilient person – might be affected by such an experience.
[48] The sentencing judge erred by not engaging in this analysis, instead relying on the concept of a discount that is not available where a serious violent offence has been committed. Both facets of this misconception have been repeatedly rejected: R v Hilbach, 2023 SCC 3 at para 39; R v Ipeelee, 2012 SCC 13 at paras 70-75 and 84-86; R v Wells, 2000 SCC 10 at paras 30, 50.
[49] According to the appellant, at the time of the offence the drugs caused him to hallucinate that his daughter had recently been kidnapped and to believe that the victim had his child. The sentencing judge dismissed this as mere self-reporting, claiming “there is no further evidence before the Court to support this assertion”: Rabbit at para 6. In fact, there was other evidence. The agreed facts included that the appellant shouted at the victim, “did you kill my daughter?”; demanded to know where the victim had hidden his daughter; was “rambling” in the back of the police vehicle; and reported to police that he had consumed methamphetamines a short time prior. Perhaps the sentencing judge felt expert evidence was required to support an assertion the appellant had been hallucinating. While expert evidence may have been helpful, it was not a prerequisite for sentencing purposes. All credible information that was before the court should have been considered in assessing the appellant’s degree of responsibility.
[50] The sentencing judge identified the guilty plea as the only mitigating factor. She summarized an apology letter written by the appellant but did not indicate whether it had any mitigating effect. In the letter, the appellant referred to his hallucinations. He called his actions unforgiveable; expressed shame and regret; and showed insight into the life-changing effect his actions had on the victim. Similarly, the sentencing judge did not comment on whether the appellant was remorseful. Remorse is a relevant mitigating factor. It can be of particular significance where it reflects insight and a reduced likelihood of offending in the future: R v Friesen, 2020 SCC 9 at para 165; R v Ambrose, 2000 ABCA 264, 271 AR 164 at paras 71, 83.
[52] Understandably, the sentencing judge was moved by the gravity of the offence and its effect on the victim and her family. However, she lost sight of the proportionality principle and fell into error by seemingly viewing recognition of any mitigating factor as an undermining of the gravity of the offence. This error was most clearly expressed in respect of the Gladue factors. She said: “where the offences are violent and serious, the principal [sic] of restraint and an acknowledgement of the lessened moral blameworthiness of an individual with significant Gladue factors cannot justify a sentence that ignores the seriousness of the offences and the harm done to the victim”: Rabbit at para 17. She went on to say that since death could have resulted, “the seriousness of the strangulation is not adequately reflected in the upper range of the global sentence suggested [by the Crown] as six years’ incarceration.”
[53] The nine-year sentence she imposed mirrors the highest sentence either party was able to find for offences of this kind. We conclude the sentencing judge gave no effect to any mitigating factors. We return to the foundational principle of sentencing: a sentence must reflect the gravity of the offence and the degree of responsibility of the offender. While the sentencing judge was technically correct in saying the gravity of the offence cannot be ignored in imposing sentence, she ignored the second half of the foundational principle. It is an error to decide on a sentence for the offence alone, and then reject any accounting for the offender’s degree of responsibility because it might require an adjustment of that partially informed sentence.
[55] This Court explained at paragraphs 25 and 26:
… this analysis reveals an error in understanding the Gladue principles. As noted, the central purpose of the Gladue analysis is to achieve proportionality. The first principle that a sentence must be proportional to the gravity of the offence and degree of responsibility of the offender has “…long been the central tenet of the sentencing process”: Ipeelee at para 36. The “constrained circumstances of Aboriginal offenders may diminish their moral culpability”, as explained in Ipeelee at para 73. Reduced moral culpability must also affect the proportionality analysis, since moral culpability is one component of the equation. It follows that where there is reduced moral culpability, there is a consequential reductive effect upon the ultimate determination of a fit and proper sentence: Ipeelee at para 87.
It is an error to proceed on the basis that Gladue factors do or do not justify departure from a proportionate sentence, as the trial judge did. Instead, application of the Gladue analysis achieves a proportionate sentence.
[56] We underscore the point: the mandatory s 718.2(e) analysis achieves a proportionate sentence. Proportionality reflects the gravity of the offence and a fair and informed understanding of the degree of responsibility of the Indigenous offender.
What is a proportionate sentence?
[58] The appellant now concedes the trial Crown’s proposed six years is within the reasonable range having regard to the principles of totality, parity, proportionality, and the balancing of Gladue factors. Departing from his original position of three years, he submits a sentence of five to six years would be fit.
[61] Before us, Crown counsel…
[63] He cited other cases establishing a suitable range of four to six years.
[64] One such case was R v Tourville, 2011 ONSC 1677. The sentencing judge there canvassed a number of Ontario cases and identified four to six years as the “high end of the range” for the offence of aggravated assault. The judge noted, “These cases generally involve recidivists, with serious prior criminal records, or they involve ‘unprovoked’ or ‘premeditated’ assaults with no suggestion of any elements of consent or self-defence”: R v Tourville, 2011 ONSC 1677 at para 30.
[70] The above cases reflect what the Saskatchewan Court of Appeal noted in R v Bear, 2018 SKCA 22 at para 47: sentences for the s 246(a) offence can vary considerably depending on the relevant circumstances. The same applies to aggravated assault.
[71] We accept that no one precedent, or group of precedents, will establish a single fit sentence. We find that in the context of the precedents, the range originally identified by the parties – three to six years – is appropriate for the gravity of this offence and the degree of responsibility of this offender.
[72] The offence was extremely serious. It was random and of frightening duration. It put the victim’s life at risk, though thankfully, it appears, with little lasting physical injury. The psychological effects on her, her husband, and their children will likely last a lifetime.
[73] In assessing the appellant’s degree of responsibility, we take into account his guilty plea, expression of remorse, and meaningful Gladue experience. Significantly, the evidence credibly suggests the appellant responded to loss by increasing his drug use and was under the influence of drug-induced hallucinations when he attacked the victim. His use of drugs at this time, while unlawful and dangerous, is to some degree explained by his past environment and recent events in his life. He did have a history of prior drug use and was described as “angry and violent” when using, but he had never before experienced hallucinations similar to those that precipitated the subject attack. These factors diminish his moral blameworthiness.
[74] We are mindful that we should consider a sentence that minimizes imprisonment to the extent that is reasonable in the circumstances and consistent with the harm done to the victim and the community: s 718.2(e).
[75] We conclude a proportionate sentence in all the circumstances is four years’ incarceration, less pre-sentence custody as calculated in the court below.
[76] The appeal is allowed and a sentence of four years less a credit of 379 days for pre-sentence custody is imposed.
R v TJH, 2023 YKCA 2
[April 17, 2023] Sentencing: CSO for s.151, Significant Gladue Factors [Horsman JJ.A.]
AUTHOR’S NOTE: This case is a rejection of a Crown appeal from a CSO imposed for two counts of sexual interference with a minor. Taking into account all sentencing principles, including Gladue factors and R v Friesen the court found there was no reasonable prospect of success for the Crown’s attempt to overturn a CSO. On a proper consideration of the legal principles this was a sentence available to the Summary Conviction Appeal Justice.
Reasons for Judgment of the Honourable Madam Justice Horsman:
[1] On March 30, 2022, the respondent was sentenced in relation to two counts of sexual interference contrary to s. 151 of the Criminal Code, R.S.C., 1985, c. C-46. The two counts arose from separate assaults in 2018 involving separate young girls, aged seven and ten. The respondent was 20 years old at the time of the commission of the offences.
[2] The respondent pled guilty to both counts in the Yukon Territorial Court. He was sentenced to eight months custody on the first count and ten months custody on the second, to be served consecutively, followed by three years of probation.
[3] On appeal, Chief Justice Duncan of the Supreme Court of Yukon, sitting as a summary conviction appeal judge, found that the sentencing judge erred in a number of respects and she imposed an 18-month conditional sentence plus two years’ probation: R. v T.J.H., 2022 YKSC 45. The Crown applies for leave to appeal that sentence.
Background
Sentencing reasons of the Yukon Territorial Court
[4] At the original sentencing hearing, the respondent challenged the constitutional validity of the mandatory minimum of 90-days’ imprisonment imposed by s. 151(b) of the Criminal Code on the basis that it precluded the imposition of a non-custodial sentence. The sentencing judge accepted this was so, agreeing with other decisions of the Yukon Territorial Court which had found the minimum sentence provision in s. 151 invalid.
[6] At the sentencing hearing, the judge was provided with a lengthy Gladue report. The Gladue report detailed the history of the respondent’s family, in particular the attendance of his father, grandparents and great-grandparents at residential schools. As reviewed in the Gladue report, the respondent grew up in a home that was characterized by drinking, violence, and child abuse and neglect. He spent time in foster care, and struggled in school. The respondent was sexually assaulted as a child.
[7] In sentencing the respondent to an 18-month custodial sentence, the judge distinguished the offences in this case from other sexual interference cases in which a conditional sentence had been imposed. In particular, he noted the very young age of the victims in this case, and the fact that the respondent was in a position of trust and authority in relation to the seven-year old victim. The sentencing judge stated that if he was considering a conditional sentence order, the sentence would have to approach two years. He considered such a sentence to be “entirely unrealistic” and “not practical” in light of the respondent’s living situation: at paras. 17 and 21. The sentencing judge was also not satisfied that a conditional sentence order would “send the right message” of deterrence and denunciation for offences of this nature: at para. 21.
[8] The sentencing judge noted that the respondent had taken steps since the commission of the offences to improve and rehabilitate himself, and that he had extended a sincere apology in court: at paras. 18–19. The sentencing judge did not reference other mitigating factors, including the respondent’s youth, lack of criminal record, and early guilty plea.
Reasons on the summary conviction appeal
[10] On the summary conviction appeal, Duncan C.J. found that the sentencing judge made two errors of law or principle in his analysis.
[11] First, she found he erred in law in failing to engage in a proper analysis of the impact of the respondent’s significant Gladue factors on the sentence. Chief Justice Duncan noted that the sentencing judge did not explain the reasons for his conclusion that a conditional sentence would be “impractical” in light of the respondent’s living circumstances: at para. 27. She found that the judge’s unexplained conclusion that a conditional sentence order would be impractical, without reference to any Gladue factors, was insufficient to demonstrate that the requisite analysis was done: at para. 31. The significant Gladue factors that existed in this case, if considered contextually, should have led to an analysis of an option other than a custodial sentence: at para. 34. As a result, Duncan C.J. concluded that the sentencing judge erred in principle, and this error had a material impact on the sentence imposed.
[13] … The evidence on the sentencing hearing showed that the respondent had complied with his bail conditions since being charged in December 2020, was motivated to seek and complete alcohol treatment, had no criminal record, and had expressed his sincere remorse. As such, Duncan C.J. concluded that the respondent would not endanger the safety of the community, and he appeared to be at low risk of reoffending: at para. 56.
[14] Chief Justice Duncan acknowledged the significant aggravating factors present and the serious nature of the offences. However, this had to be balanced by consideration of the respondent’s personal circumstances and the significant Gladue factors. She concluded that the principles of sentencing could be achieved by a strict conditional sentence, including conditions in the nature of house arrest. The conditions imposed include that the respondent must remain inside his residence at all times for the first 12 months of the order, other than for limited specified purposes with the prior written permission of his bail supervisor.
Legal framework
[17] The principles to be applied on an application for leave to appeal from the decision of a summary conviction appeal court, including sentencing decisions, are set out in R v. Winfield, 2009 YKCA 9 as follows.
[13] … [T]he applicant must establish that (a) the ground of appeal involves a question of law alone, (b) the issue is one of importance, and (c) there is sufficient merit in the proposed appeal that it has a reasonable possibility of success. The overriding consideration in the exercise of the…
[22] … Furthermore, the Crown has not shown that its proposed appeal has a reasonable prospect of success.
[23] Chief Justice Duncan stated the correct standard of appellate review. She cited Friesen for the proposition that sentencing judges are entitled to significant deference by the appellate courts: at para. 8. The issue in this case was not whether Duncan C.J. ought to interfere with a sentencing judge’s assessment of Gladue factors and weighing of aggravating and mitigating factors. The reasons of the sentencing judge did not reflect any consideration of Gladue factors in assessing the respondent’s moral blameworthiness, or any reference to the significant mitigating factors that were present in this case.
[24] In her approach to the reasons for sentence on appeal, Duncan C.J. acknowledged that judges are presumed to know the objectives of sentencing and are not required to state every thought process in their reasons: at para. 31. At the same time, she noted that a sentencing judge’s reasons must demonstrate they have substantively grappled with relevant Gladue and mitigating factors, and that they have turned their mind to how those matters affect moral culpability: see paras. 31–32. She found there was no indication that the sentencing judge had undertaken the necessary analysis in this case: at para. 31.
[25] I see no reasonable possibility that the Crown will succeed on appeal in establishing legal error by Duncan C.J. in applying principles of appellate deference in this case. As Duncan C.J. notes, s. 718.2(e) of the Criminal Code mandates a sentencing judge to take into consideration: “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”. Yet there is no indication in the reasons for sentence that the respondent’s significant Gladue factors, or the significant mitigating factors, were considered in crafting an appropriate sentence. This error was compounded by the lack of clarity in the judge’s reasons for rejecting the option of a conditional sentence, and his unexplained reference to the impracticality of such a sentence.
[26] Much the same can be said of the Crown’s fifth ground of appeal, which is the alleged error of Duncan C.J. in failing to recognize the exceptional nature of a conditional sentence in sexual offences involving children. The serious nature of the underlying offences provided the context for her analysis. Chief Justice Duncan noted that even in cases of grave sexual violence, Gladue factors must still be considered: at para. 30. She referenced other decisions in which conditional sentences were imposed in sexual offences involving children. Chief Justice Duncan also referred to Friesen, which is the leading decision on sentencing for sexual offences against children. In light of her reasons, it cannot be said that Chief Justice Duncan misunderstood or overlooked any principle relevant to sentencing in the context of these offences.
[27] To the extent that the Crown’s proposed appeal turns on the allegation that Duncan C.J. erred in finding a conditional sentence was a fit and proportionate sentence in this case, that does not raise an error of law. As noted in G.K., there is no legal presumption that a conditional sentence will not be ordered in sexual offences involving children; the facts of a case may justify a conditional sentence, including where there are significant Gladue factors: G.K. at para. 32. Here, the Chief Justice concluded that a conditional sentence on strict terms was justified by the compelling Gladue factors, the significant mitigating factors (the respondent’s age, lack of criminal record, and early guilty plea), the respondent’s compliance with bail conditions, and his motivation to seek and complete treatment. While the Crown may disagree with the fitness of the sentence imposed, I am not persuaded that there is a reasonable prospect that the Crown would succeed on appeal in showing that Duncan C.J. erred in law in her analysis.
Disposition
[28] The Crown’s application for leave to appeal the decision of summary conviction appeal judge is dismissed.
R v Gabad, 2023 ABKB 267
[May 2, 2023] Charter s.7 Disclosure: Witness Protection Records [D.A. Labrenz J.]
AUTHOR’S NOTE: This decision confirms that AWSP documents constitute records “of obvious relevance” making them first party disclosure. Witness protection usually comes with funding and a promise to testify “truthfully”. Of course, witnesses have already provided a statement by the time they are in witness protection, such a promise means they have to keep their testimony consistent with their original statement or admit they have been untruthful at some point – risking the benefits of witness protection. This makes the conditions under which they are able to continue in witness protection and any benefits thereof obviously relevant to the ultimate trial.
Introduction
[1] The accused are charged with the first degree murder of Karson Goodeagle arising from certain events that occurred on January 5, 2020. Following the arrest of the four accused, the Crown preferred a direct indictment, and a six-day trial was scheduled to be heard in this Court before Justice Gates beginning February 1, 2021.
[2] The trial of the four men, however, did not proceed as scheduled on February 1st because the Court and defence counsel were advised that one of the key Crown witnesses, who I will simply identify as John Roe [“JR”], had lately entered the Witness Protection Program as administered by the Alberta Witness Security Program under the authority granted by the Witness Security Act, SA 2010, c W-12.5. Also relevant to my consideration in this disclosure application is the Witness Protection Act, SC 1996, c 15.
[4] I was appointed as the case management judge to hear the application of the accused to seek further disclosure of specified documentation related to JR’s entry into the Witness Protection Program and to determine whether certain information relating to financial expenditures incurred consequent to JR’s participating in the program have been overly redacted.
[5] Legal Counsel on behalf of the Alberta Witness Security Program [“AWSP”] resist further disclosure on several discrete bases. First, contrary to the submissions made by the accused, the Security Program argues that the requested disclosure is not first party records under R v Stinchcombe, [1991] 3 SCR 326, but instead should be viewed as third party records subject to the procedures applicable to such records as adopted by the Supreme Court of Canada’s decision in R v O’Connor, [1995] 4 SCR 411. Beyond that consideration, the AWSP argues that it has already disclosed all documentation that are properly disclosable and not otherwise privileged.
[6] As an initial step, I must first determine whether or not the documentation within the possession of the AWSP is first party or third party disclosure. This is my decision with respect to that threshold issue.
[9] On December 16, 2020, the Crown received information that JR feared for his safety and wanted to enter the Witness Protection Program. The Crown completed documentation in response the JR’s request that same day and provided it to the Calgary Police Service. The Crown confirms that it received advice, on the same day, that efforts were directed towards placing JR into the Witness Protection Program.
[10] On January 28, 2021, the Calgary Police Service advised Crown counsel that JR had been accepted into the Witness Protection Program in December of 2020. On January 7, 2021, the Calgary Police Service sent an email to the Crown indicating that JR was in treatment and doing well. According to the Crown, the Crown was later advised that JR was not formally accepted into the program until February 1, 2021, but was being treated as if he was in the program before that date.
[15] The removal of some of the redactions provided further disclosure to the accused. Specifically, the accused by reason of the extensive unredacted information came to learn that JR would receive not more that $38,150 for items such as temporary accommodation, food, transportation, phone, and medical expenses over the term stipulated by the Letter of Acknowledgment.
[18] JR’s name was also unredacted including the date of the signing of the Letter of Acknowledgment on March 3, 2021.
[19] The accused seek further disclosure. Without limitation, the accused seek the threat assessment completed in relation to the investigation, and disclosure of all witness protection officer/handler notes. The accused also seek that the redactions found in clause 2.3 which seems to include financial renumeration and expenditures for JR be removed, and further that clause 7.3(d) which seem to include interactions with the police that would be potentially relevant be unredacted.
What disclosure regime applies to the requested disclosure, Stinchcombe or O’Connor?
[21] Following Stinchcombe, the Crown has the duty to disclose all relevant, non-privileged information in its possession or control, whether inculpatory or exculpatory, unless the information is governed by another regime. The duty is ongoing, even after trial, and arises from the accused’s constitutional right embraced by s.7 of the Charter to all material which meets the Stinchcombe standard: Gubbins at paras 18-19; Stinchcombe at pp 229; and R v Dixon [1998] 1 SCR 244 at para 22.
[22] Relevance, as contemplated by Stinchcombe, is a relatively broad concept and has been variously described. In Dixon, for example at para 22, the Supreme Court speaks of the reasonable possibility that the undisclosed information might have in meeting the case for the Crown, advancing a defence, or otherwise in planning the conduct of the defence. As Justice Rowe indicated at para 19 of Gubbins the Crown’s duty to disclose under Stinchcombe is triggered by request and does not involve an application to the court.
[23] While the obligation to disclose is not absolute, being subject to limitations such as privilege, for example, the Supreme Court made it clear in Stinchcombe that while Crown counsel must err on the side of inclusion, the Crown need not disclose that which is clearly irrelevant. When challenged, the discretion of the Crown as to disclosure is reviewable by the Court, and when defence initiates such a review the Crown must justify its refusal to disclose. At the same time, the Supreme Court in Stinchcombe instructed judges to be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence; unless, of course, the non-disclosure is justified by the law of privilege.
[24] The right to disclosure is therefore broad in scope and encompasses material that may be of only marginal value to the ultimate issues at trial: Dixon, at para 23.
[25] The use of the phrase “obviously relevant” as described in the applicable legal authorities; including R v McNeil, 2009 SCC 3; R v Jackson, 2015 ONCA 832; R v Black ̧ 2011 ABCA 349; and Gubbins, does not create a new or different standard for first party disclosure other than what was first described in Stinchcombe. As Justice Rowe stated at para 23 of Gubbins, “In addition to information contained in the investigative file, the police must disclose to the prosecuting Crown any additional information that is obviously relevant to the accused’s case. The phrase “obviously relevant” should not be taken as indicating a new standard or degree of relevance…Rather this phrase simply describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because 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.”
[26] As Justice Watt stated in Pascal at paras 104-107, the prosecuting Crown cannot justify its failure to disclose relevant material on the basis that the investigating police service failed to supply it; instead, when the Crown receives effective notice of potentially relevant materials in the hands of the police, the Crown has an obligation to make reasonable inquiries. The police have a corresponding duty to disclose to the prosecuting Crown all material pertaining to its investigation of the accused, sometimes referred to as “the fruits of the investigation,” Gubbins at para 21, McNeil at paras 14, 22-24 and 52. The “fruits of the investigation” refers to information “generated or acquired during or as a result of the specific investigation against the accused”: Gubbins, at para 22.
[27] Beyond the “fruits of the investigation” the police have the duty to disclose to the prosecuting Crown any additional information that is “obviously relevant” to the accused’s case: “Obviously relevant” having a broad meaning that includes information relating to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence: Gubbins at para 23.
[28] As Justice Watt succinctly points out at para 107, when determining which disclosure regime applies, a court must consider whether:
- The information sought is in the possession or control of the prosecuting Crown; and
- The nature of the information sought is such that the police or another Crown entity in possession or control of it should have supplied the information to the prosecuting Crown.
[29] As Justice Watt notes, the second question will be answered affirmatively when the information is part of the “fruits of the investigation” or is “obviously relevant”. An affirmative response on either of these issues means that the first party or Stinchcombe disclosure regime applies: Gubbins at para 33.
[30] Legal counsel for the AWSP and the prosecuting Crown jointly take the position that the documentation requested by the defence are neither “fruits of the investigation,” nor “obviously relevant,” and are therefore subject to the third party O’Connor regime meaning that the accused would have to establish that the disclosure sought is “likely relevant” in the sense that there is a reasonable possibility that the information is logically probative to an issue at trial….
[33] In approximately the last five years no less than three different decisions of this Court have considered whether disclosure of witness protection information should be considered as first party of disclosure or third party disclosure.
Analysis
[43] As a starting point, a finding that the records sought by the accused are disclosable under Stinchcombe is not a finding that all the information possessed by the AWSP is disclosable. This is because it is trite law that the state need not disclose any materials that are clearly irrelevant or privileged. Having said this, consistent with the principles found in Fischer and with Giles, I am of the view that the disclosure sought by the accused is first party disclosure and the prosecuting Crown therefore has as duty to make reasonable inquiries to obtain any records that would be properly disclosable under Stinchcombe, and that these materials should be disclosed.
[44] I agree with the reasoning of Scaravelli J in Giles that interprets Gubbins as making it clear that the prosecuting Crown has an obligation to obtain and disclose materials from the third party AWSP on the basis that the material being sought by the accused constitutes records of “obvious relevance.” While I agree that the AWSP records do not constitute the “fruits of the investigation,” it is obvious that AWSP is in possession of materials pertaining to the credibility or reliability of JR, including information relating to potential inducements made to the witness and any demands made by the witness, which are of obvious relevance.
[45] Notionally, I do not agree with the prosecuting Crown or the AWSP that the witness protection arrangement sought by JR and provided by the state could properly be considered as having no relevance for disclosure purposes. I say this because the records themselves contextually relate to the protective arrangements made between the state and JR in support of his participation in the murder trial qua witness. In my view such records cannot be described as peripheral to the prosecution of the accused for murder. As might seem obvious, JR’s credibility and reliability are going to be key considerations in the upcoming trial, and the records that relate to any of JR’s demands, and any of the promises to him, are unquestionably relevant and disclosable. Indeed, the AWSP has voluntarily disclosed some of the requested information, which seems to be at least some tacit acknowledgment of such relevance.
[46] Indeed, it is difficult to understand how it could be otherwise. Although, I agree that AWSP does not have an investigative function, and I accept that the investigative police agency is separate from AWSP, I would note that the material Crown witness remains, nonetheless, as engaged and protected by the state, at his own personal request, and subject to his agreement to abide by a number of state-imposed rules. In this context, it must be remembered that relevance is a broad concept involving the requirement that the Crown disclose material relating to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence. In the context of first party disclosure only material that is clearly irrelevant may be withheld from defence. It is for this reason, in most instances, that the prosecuting Crown seeks to be over as opposed to under inclusive when providing criminal disclosure.
[47] While I appreciate that AWSP has provided some evidence tending to demonstrate that JR’s testimony at the upcoming trial is not the sine qua non of the protection afforded to him, AWSP’s position regarding the offered protection does not mean that JR views his cooperate testimony as incidental to his continued protection. I mention this as just one example of the potential importance of the requested disclosure to the defence.
[48] Beyond this consideration, JR in the Letter of Acknowledgment acknowledged that he must testify truthfully and completely when answering any question at any criminal proceedings to which he was subpoenaed, and that he would answer police questioning truthfully, along with a final promise to cooperate with respect to attendance at meetings scheduled with the Crown and the police. Given this agreement, and the strong incentive that it arguably creates for JR to continue to adopt his KGB sworn statement, even if the sworn statement was untrue, it is difficult to understand the argument made by AWSP and the prosecuting Crown that such records are third party in nature.
[49] Indeed, JR’s present life circumstances are presently under the effective control of the state, and it is on behalf of that same state that JR will testify at trial. As I have already said, it is difficult in these circumstances to understand the suggestion that the voluntary control of JR’s life circumstances by the state could be said to anything other than obviously relevant, subject of course to statutory and common law privilege. As would seem intuitively obvious, the protective services provided to JR may potentially speak to his motivation to testify and, as such, are otherwise relevant to both his credibility and reliability. The records are also therefore of a first party nature as potentially speaking to the behaviour and tendencies of the witness.
[50] I conclude that the additional materials sought by defence are first party disclosure, subject to the successful claim of privilege, or upon the Crown establishing that withheld or redacted individual documents on a case-by-case basis are clearly irrelevant. In particular, the threat assessments would appear to have obvious relevance given my understanding that they contain information regarding the threat posed by the individual accused in this case, which may, in turn, support or not support JR’s assertions that he was beaten and that there is a bounty on his head because the accused’s membership in an identifiable crime group. The monetary breakdown of financial assistance provided to JR is of obvious relevance because it speaks directly to the types of inducements or motivations provided to JR. As would seem obvious by my ruling, the police notes of the various interactions between police officers and JR, have obvious relevance as they catalogue JR’s critical interactions with the state.
Sentencing: Principles and Practice
By Danielle Robitaille & Erin Winocur
