Witness Protection Records Ordered to be Produced

In a recent Alberta Court of Queen’s Bench case, the Court grappled with the issue of production of records related to a witness in a murder case who was accepted into the Federal Witness Protection Program (WPP), which was established under federal statute. This is an important fact because it is separate and distinct from all RCMP operations that perform investigatory functions. A key aspect of the WPP, is that its coordinators and handlers do not gather or discuss evidence and play absolutely no role in criminal investigations. 

In R v. Fisher, the four accused were charged with the first-degree murder of Kevin Yellowbird. A Crown witness, C.P. was accepted into emergency protection with the WPP. Ultimately, she refused formal program entry but received limited assistance under an alternate aid arrangement (AAA) administered by the RCMP. This arrangement falls within WWP ambit. 

Collectively, the four accused sought disclosure of the WPP records in relation to the Crown witness. They argued based upon section 7 of the Canadian Charter of Rights and Freedoms, that disclosure was necessary for full answer and defence. In particular, they argued that the records were first party records under Stinchcombe. The Crown opposed disclosure and argued that the WPP records were third-party governed by O’Connor. As the Crown refused to disclose the records, a hearing was held to determine which disclosure regime applied. 

The evidence on the hearing was that several weeks before the accused were charged with the murder, the Major Crime Unit of the local RCMP requested that the WPP do an assessment of the witness’s suitability to enter the WPP. The witness had not asked for protective measures in return for providing evidence nor did investigators offer her protection in return for evidence. On the day the accused were arrested for murder, the identity of the witness as a cooperating witness was disclosed to the accused and the witness entered into the WPP. The following day, the witness refused to be considered for formal entry into the WPP.

Several week later, the witness was offered limited assistance under the AAA, which falls under the umbrella of WPP. A signed agreement formally confirmed the witness’s entry into the AAA program. She did not receive financial compensation, but she did receive funding for expenses such as housing.

The Legal Test for Determining the Disclosure Regime

In R v Gubbins, the Court articulated the analysis for determining whether the Stinchcombe or O’Connor disclosure regimes apply. At para 33, the Court stated: 

Based on the previous discussion of disclosure regimes, to determine which regime is applicable,

one should consider: (1) Is the information that is sought in the possession or control of the prosecuting Crown? and (2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown? This will be the case if the information can be qualified as being part of the fruits of the investigation or obviously relevant. An affirmative answer to either of these questions will call for the application of the first party disclosure regime. Otherwise, the third-party disclosure regime applies. For the reasons that follow, the maintenance records are subject to third party disclosure. 

In R v Jennings, 2018 ABQB 105, Shelley J addressed the appropriate disclosure regime for disclosing WWP records. That decision accounted for the Gubbins analysis. It also helpfully summarized and applied the impact of the Supreme Court of Canada’s decisions in R v Stinchcombe and R v Quesnelle, 2014 SCC 46. 

Shelley J noted at paras 17, 20 and 18: 

In McNeil, the Supreme Court went on to hold that it is not only the investigative file that the police must give the Crown,

but also “all material pertaining to the investigation of the accused.” (at para 52). The question at issue there was whether this obligation extended to police disciplinary files. The Court concluded that, while there is no need to provide the complete employment records of all investigating officers, information about serious misconduct by police officers “related to the investigation, or [where] the finding of misconduct could reasonably impact on the case against the accused” must be provided to the Crown for disclosure purposes (at para 15). Then it is up to the Crown to act as a gatekeeper to determine whether the material should be disclosed, noting “The officer may have played a peripheral role in the investigation, or the misconduct in question may have no realistic bearing on the credibility or reliability of the officer’s evidence.” (at para 59). Page: 6 … 

McNeil described two categories of first party information that the police authorities were required to provide to the Crown: “fruits of the investigation” and police information about police officers related to the investigation that could reasonably impact on the case against the accused and which was relevant to the credibility or reliability of the evidence. It went on to describe the Crown’s duty to “bridge” the gap between first party and third-party disclosure when the Crown becomes aware of relevant information, saying (at paras 49, citing R v Arsenault (1994), 153 NBR (2d) 81 (CA), and 50): 

Crown counsel have a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence.

Counsel cannot be excused for any failure to make reasonable inquiries when to the knowledge of the prosecutor or the police there has been another Crown agency involved in the investigation… The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case. … [18] 

In R v Quesnelle, 2014 SCC 46 (SCC), the Supreme Court summarized the jurisprudence to date (at para 11): 

Stinchcombe, at pp. 336-40, provides that the Crown is obliged to disclose all relevant, non-privileged information in its possession or control so as to allow the

accused to make full answer and defence. For purposes of this “first party” disclosure, “the Crown” does not refer to all Crown entities, federal and provincial: “the Crown” is the prosecuting Crown. All other Crown entities, including police, are “third parties”. With the exception of the police duty to supply the Crown with the fruits of the investigation, records in the hands of third parties, including other Crown entities, are generally not subject to the Stinchcombe disclosure rules. (emphasis added)

Decision

The judge agreed with defence counsel that the records were first-party disclosure governed by Stinchcombe. The WPP was ordered to provide its records to the Crown to assess relevance, and any required redaction before production to the accused. Despite the records not being in the possession of the Crown, the judge found them to be relevant. The witness was a significant Crown witness who was integrally connected to both the police investigation and the prosecution’s case. She allegedly provided the vehicle used to transport the victim to the crime scene, was present with the accused when the murder occurred and subsequently actively assisted police in locating and confirming the accused addresses. 

The records, including the issue of funding she received, may have a significant impact on her credibility and reliability as a witness at trial. In particular, the funding may have formed her motivation to testify. 

Most importantly, the judge emphasized what the Supreme Court said about O’Connor applications in McNeil, that relevance must be contextually assessed. The nature of the record sought will not necessarily be determinative of whether the first or third-party disclosure regime applies.

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Cory Wilson is a criminal defence lawyer based in Calgary. If you have been charged with a criminal offence or are a suspect in a criminal investigation, call today for a free, no obligation consultation.