R. v. Chan,

• Judge: Sulyma, J.
• Neutral Citation: 2002 ABQB 287
• Citation: 2002 ABQB 287,(2002), 307 A.R. 232 (QB),[2002] 7 WWR 223,2 Alta LR (4th) 248,307 AR 232,164 CCC (3d) 24,50 CR (5th) 280,[2002] AJ No 363 (QL),(2002), 307 AR 232 (QB),[2002] A.J. No 363 (QL),307 A.R. 232
• Date: 15 March 2002
• Court: Court of Queen's Bench of Alberta (Canada)

R. v. Chan (A.H.) (2002), 307 A.R. 232 (QB)

MLB headnote and full text

Temp. Cite: [2002] A.R. TBEd. AP.021

Her Majesty the Queen (respondent) v. Alex Hang Chan, Man Kit Chan, Donald Cheung, Sai Ming Fok, Tien Lai Lam, Willy T. Lau, Hiep Quang Le, Thi Hoang Le, James Edward Mah, Helen Hoang Nguyen, Jerry Nguyen, Long Nguyen, Phuc Duc Nguyen, Anh Le Tran, Bao Minh Tran, Phong Huy Tran, Vu Hang Trinh, Adrian Tiburico Vergara and Josephine Soo Yun Voon (applicants/accused)

(Action No. 0003-2182-C5; 2002 ABQB 287)

Indexed As: R. v. Chan (A.H.) et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Sulyma, J.

March 15, 2002.

Summary:

The Crown claimed that certain documents and records in its possession did not have to be disclosed to the accused because they were irrelevant and/or privileged. The accused applied for a determination of the validity of the Crown's claim. Various issues were raised as a result of the accused's application.

The Alberta Court of Queen's Bench determined the issues accordingly.

Civil Rights - Topic 1441

Security of the person - Right to privacy - General - The Alberta Court of Queen's Bench discussed the effect of third party privacy rights on the Crown's disclosure duties - The court stated that the privacy right was a Charter right and agreed that R. v. O'Connor (S.C.C.) recognized that the Crown's duty to disclose all information was subject to third party privacy rights - The court stated that the Crown could bring forth a third party privacy right in a disclosure proceeding and ask the court to uphold its claim - The court adopted, with some amendments, certain principles relating to when material subject to third party privacy rights had to be disclosed - See paragraphs 137 to 144.

Criminal Law - Topic 128

General principles - Rights of accused - Right to make full answer and defence - The Alberta Court of Queen's Bench agreed that "police investigative techniques, ongoing police investigations and safety of individuals are recognized categories of common law privilege or immunity which must be assessed on a case-by-case basis as to whether the public interest in question outweighs the right of the accused to make full answer and defence." - See paragraph 127.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - The Crown refused to disclose various documents, claiming that they were irrelevant - The Crown provided the defence with an inventory of some of the materials - The Alberta Court of Queen's Bench stated that there was no obligation on the Crown to disclose material which was clearly irrelevant, although the onus rested with the Crown to establish irrelevance - If the materials sought were unconnected to the investigation leading to the charges, or were otherwise prima facie irrelevant, the defence had to establish a basis for the court to conclude that they were of potential relevance before disclosure would be ordered - The court stated that the Crown's provision of an inventory did not entitle the defence to more disclosure simply because the Crown had acknowledged certain documents' existence - See paragraphs 6 to 43.

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 1441 ].

Evidence - Topic 4105.1

Witness - Privilege - Voir dire - Procedure - The Crown refused to disclose various documents, claiming that they were subject to solicitor-client privilege - The Alberta Court of Queen's Bench set out the procedure and onus to be applied in a voir dire with respect to those materials - See paragraph 89.

Evidence - Topic 4105.1

Witness - Privilege - Voir dire - Procedure - The Crown refused to disclose various documents, claiming that they were subject to public interest privilege - The Alberta Court of Queen's Bench set out the procedure to be followed in a voir dire with respect to those materials - See paragraph 145.

Evidence - Topic 4105.1

Witness - Privilege - Voir dire - Procedure - [See first Evidence - Topic 4150 and second Evidence - Topic 4238.1 ].

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - The Alberta Court of Queen's Bench stated that "Privileges are divided into two categories: class privilege and case-by-case privilege. ... Class privilege is a common law privilege attaching to communications within certain specified relationships that for policy reasons carry a prima facie presumption of inadmissibility. Protection is accorded to all who fall within the class. The privilege is as close to absolute as possible, will only yield to production in certain clearly defined circumstances such as innocence at stake, and does not involve a balancing of interests on a case-by-case basis. Other relationships are not protected by class privilege but communications within these relationships may be privileged on a case-by-case basis. A case-by-case privileged communication carries a presumption of admissibility. To be found inadmissible, the communication must first meet the first three Wigmore tests; if it does so, the right of confidentiality must be balanced against the right of an accused to make full answer and defence on a case-by-case basis." - The court accepted that there were two types of class communication privilege: solicitor-client and informer - The court held that there were two types of case-by-case privilege: communications that met the Wigmore criteria and documents or records where there was a public interest in maintaining confidentiality - See paragraphs 49 to 52.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - Section 37 of the Canada Evidence Act permitted the Crown or other interested person to object to the disclosure of information on the grounds of "a specified public interest" - The Alberta Court of Queen's Bench held that s. 37 did not extinguish any pre-existing common law forms of public interest immunity - See paragraphs 103 to 121.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - The Alberta Court of Queen's Bench held that "there is no separately defined category of immunity or privilege arising out of public interest in effective law enforcement. Rather, material may be subject to privilege on the basis of recognized grounds, which include but are not necessarily limited to investigative technique, ongoing investigation, safety of individuals and communications meeting the Wigmore criteria." - See paragraph 131.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - The Alberta Court of Queen's Bench rejected the Crown's argument that there was a public interest immunity category of police intelligence - See paragraphs 132 and 133.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - The Alberta Court of Queen's Bench agreed that "there is no category of public interest immunity for internal police communications known to law. Certain internal police communications may be privileged as relating to police intelligence, investigative techniques or solicitor-client communication. Other internal police communications must be analyzed on a case-by-case basis to determine whether they meet the Wigmore test." - See paragraph 136.

Evidence - Topic 4107.1

Witnesses - Privilege - General - Public interest privilege - [See Criminal Law - Topic 128 and second Evidence - Topic 4105.1 ].

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity or location of police informants - The Alberta Court of Queen's Bench discussed informer privilege and set out principles applicable to informer privilege - The court also set out a procedure and onus to be applied in a voir dire where the accused challenged the Crown's claim of informer privilege as a basis for refusing to disclose certain materials - See paragraphs 90 to 94.

Evidence - Topic 4150

Witnesses - Privilege - Privileged topics - Identity or location of police informants - [See Evidence - Topic 4253.3 ].

Evidence - Topic 4161

Witnesses - Privilege - Communications - General - [See first Evidence - Topic 4107.1 ].

Evidence - Topic 4236

Witnesses - Privilege - Lawyer-client communications - When privilege may be invoked - The Alberta Court of Queen's Bench noted that "Legal profession privilege attaches to communications between a client and his lawyer where: 1. The client seeks legal advice from a lawyer; 2. The lawyer provides his/her advice in his/her professional capacity; 3. The communications between the client and lawyer relate to legal advice; and 4. The communications were made in confidence. ... Legal professional privilege applies to communications between Department of Justice lawyers and their respective clients (e.g. Royal Canadian Mounted Police) so long as the above pre-conditions exist." - See paragraphs 66 and 67.

Evidence - Topic 4238.1

Witnesses - Privilege - Lawyer-client communications - Documents - Lawyer's work product - The Alberta Court of Queen's Bench stated that "while work product privilege does exist in the criminal context and does apply to work product of the Crown, this form of privilege is not a subset of solicitor-client privilege and therefore accorded the status of a class privilege. Rather, it is a form of case-by-case privilege which must be balanced against the right of the accused to make full answer and defence. The zone of privacy afforded Crown counsel will not be seriously eroded as a result of this conclusion given that the Crown is already under an obligation to disclose new or inconsistent facts and much of what falls under the rubric of work product will be irrelevant to the ability of the defence to make full answer and defence." - See paragraph 65.

Evidence - Topic 4238.1

Witnesses - Privilege - Lawyer-client communications - Documents - Lawyer's work product - The Alberta Court of Queen's Bench discussed work product privilege in the criminal context - The court agreed that any work produced by the police for the purpose of trial should be accorded the protection of Crown work privilege - The court set out the procedures and onus to be applied in the voir dires respecting the Crown's claims of work product privilege as a basis for refusing to disclose material - See paragraphs 95 to 102.

Evidence - Topic 4242.1

Witnesses - Privilege - Lawyer-client communications - Privilege - Communications between Crown prosecutors and investigators - [See Evidence - Topic 4236 ].

Evidence - Topic 4253.3

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - To permit full answer and defence - The Alberta Court of Queen's Bench discussed the "innocence at stake" exception to the rule against disclosure of information to which legal professional privilege applied - The court concluded that the innocence at stake exception did not extend to "abuse of process" - However, the court concluded that there was an "abuse of process" exception to solicitor-client privilege - The court stated that "This further exception would not arise on a mere allegation of a breach of Charter rights. Rather, it must involve an allegation of abuse of process sufficient to justify a stay." - See paragraphs 70 to 87 - The court also held that, like solicitor-client privilege, informer privilege would also yield where the innocence at stake or abuse of process exceptions were made out - See paragraph 91.

Evidence - Topic 4253.4

Witnesses - Privilege - Lawyer-client communications - Loss of privilege - To prevent abuse of process - [See Evidence - Topic 4253.3 ].

Evidence - Topic 4254

Witnesses - Privilege - Lawyer-client communications - Waiver - General - The Alberta Court of Queen's Bench stated that "Only the client may waive solicitor-client privilege ... Waiver must be made knowingly and deliberately. This means that the client must know he or she has a right to solicitor-client privilege and intends to forego that right. Waiver may occur in a number of ways. The most common is by disclosure of the information to a third party. Where the client is a police force, disclosure between its members will not constitute waiver." - See paragraphs 70 and 71.

Cases Noticed:

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1, refd to. [para. 3].

R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 96 C.C.C.(3d) 225, consd. [para. 3].

R. v. Church of Scientology of Toronto et al. (1997), 99 O.A.C. 321; 116 C.C.C.(3d) 1 (C.A.), consd. [para. 10].

R. v. Darrach (1998), 107 O.A.C. 81; 38 O.R.(3d) 1 (C.A.), consd. [para. 10].

R. v. Starr (R.D.) (1998), 123 Man.R.(2d) 292; 159 W.A.C. 292; 123 C.C.C.(3d) 145 (C.A.), consd. [para. 10].

R. v. Mah (J.) (2001), 288 A.R. 249 (Q.B.), consd. [para. 10].

R. v. Giroux (L.), [2001] O.T.C. 982 (Sup. Ct.), refd to. [para. 10].

R. v. Charron (A.) (1996), 141 Nfld. & P.E.I.R. 170; 443 A.P.R. 170 (Nfld. T.D.), consd. [para. 10].

R. v. DeRose (A.S.) et al. (2000), 268 A.R. 154; 81 Alta. L.R.(3d) 359 (Prov. Ct.), consd. [para. 10].

R. v. Maslack, [1995] M.J. No. 150 (Prov. Ct.), refd to. [para. 10].

R. v. Chaplin (D.A.) et al. (1993), 145 A.R. 153; 55 W.A.C. 153; 20 C.R.R.(2d) 152 (C.A.), refd to. [para. 29].

R. v. Girimonte (F.) (1997), 105 O.A.C. 337; 121 C.C.C.(3d) 33; (C.A.), refd to. [para. 30].

R. v. Thurston, [2000] B.C.J. No. 1919 (S.C.), refd to. [para. 30].

R. v. Lalo, [2002] N.S.J. No. 96 (S.C.), refd to. [para. 31].

R. v. Trang (D.) (2001), 300 A.R. 89 (Q.B.), consd. [para. 34].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193, refd to. [para. 43].

R. v. Trang (D.) (2002), 307 A.R. 201 (Q.B.), consd. [para. 45].

Bisaillon v. Keable et al., [1983] 2 S.C.R. 60; 51 N.R. 81; 7 C.C.C.(3d) 385, refd to. [para. 47].

R. v. McClure (D.E.), [2001] 1 S.C.R. 445; 266 N.R. 275; 142 O.A.C. 201; 151 C.C.C.(3d) 321, refd to. [para. 47].

R. v. Gruenke, [1991] 3 S.C.R. 263; 130 N.R. 161; 75 Man.R.(2d) 112; 6 W.A.C. 112; 67 C.C.C.(3d) 289, refd to. [para. 47].

Slavutych v. University of Alberta, [1976] 1 S.C.R. 254; 3 N.R. 587, 55 D.L.R.(3d) 224, refd to. [para. 47].

Slavutych v. Baker - see Slavutych v. University of Alberta.

General Accident Assurance Co. et al. v. Chrusz et al. (1999), 124 O.A.C. 356; 45 O.R.(3d) 321 (C.A.), refd to. [para. 57].

R. v. Brown (L.A.) et al., [1997] O.T.C. 1 (Gen. Div.), refd to. [para. 60].

Hickman v. Taylor (1947), 67 S.Ct. 385 (U.S.S.C.), refd to. [para. 60].

Morrissey v. Morrissey et al. (2000), 196 Nfld. & P.E.I.R. 262; 589 A.P.R. 262; 196 D.L.R.(4th) 94 (Nfld. C.A.), refd to. [para. 62].

R. v. Campbell (J.) and Shirose (S.), [1999] 1 S.C.R. 565; 237 N.R. 86; 119 O.A.C. 201; 133 C.C.C.(3d) 257, refd to. [para. 66].

R. v. German and Medicine Hat Greenhouses Ltd. (1978), 13 A.R. 232; 45 C.C.C.(2d) 27 (C.A.), refd to. [para. 67].

Palmer v. Gray et al. (1993), 23 B.C.A.C. 208; 39 W.A.C. 208; 79 C.C.C.(3d) 332 (C.A.), refd to. [para. 67].

R. v. Creswell (F.A.) (2000), 146 B.C.A.C. 7; 239 W.A.C. 7; 149 C.C.C.(3d) 286 (C.A.), refd to. [para. 78].

R. v. Tonner (R.A.) (2001), 282 A.R. 163 (Q.B.), refd to. [para. 79].

R. v. Castro (J.F.) et al. (2001), 157 B.C.A.C. 97; 256 W.A.C. 97; 157 C.C.C.(3d) 255 (C.A.), refd to. [para. 81].

R. v. Scott, [1990] 3 S.C.R. 979; 116 N.R. 361; 43 O.A.C. 277; 61 C.C.C.(3d) 300, refd to. [para. 83].

R. v. Leipert (R.D.), [1997] 1 S.C.R. 281; 207 N.R. 145; 85 B.C.A.C. 162; 138 W.A.C. 162; 112 C.C.C.(3d) 385, consd. [para. 85].

R. v. Regan (G.A.) (2002), 282 N.R. 1; 201 N.S.R.(2d) 63; 629 A.P.R. 63 (S.C.C.), refd to. [para. 87].

R. v. Stewart (R.) (1997), 24 O.T.C. 266 (Gen. Div.), refd to. [para. 95].

United States of America v. Nobles (1975), 422 U.S. 225 (U.S.S.C.), refd to. [para. 97].

R. v. Brennan Paving and Construction Ltd. (1998), 115 O.A.C. 355 (C.A.), refd to. [para. 98].

R. v. O'Connor (H.P.), [1995] 4 S.C.R. 411; 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1, refd to. [para. 99].

R. v. Meukon (1990), 57 C.C.C.(3d) 193 (B.C.C.A.), refd to. [para. 103].

R. v. Boomer (J.B.) (2000), 182 N.S.R.(2d) 49; 563 A.P.R. 49 (S.C.), refd to. [para. 103].

R. v. Richards (M.) (1997), 100 O.A.C. 215; 115 C.C.C.(3d) 377 (C.A.), refd to. [para. 105].

R. v. Lam (K.G.) (2000), 143 B.C.A.C. 193; 235 W.A.C. 193; 148 C.C.C.(3d) 379 (C.A.), folld. [para. 103].

Carey v. Ontario et al., [1986] 2 S.C.R. 637; 72 N.R. 81; 20 O.A.C. 81, consd. [para. 108].

Canada (Attorney General) et al. v. Sander (1994), 44 B.C.A.C. 200; 71 W.A.C. 200; 90 C.C.C.(3d) 41 (C.A.), refd to. [para. 110].

Babcock et al. v. Canada (Attorney General) et al. (2000), 142 B.C.A.C. 161; 233 W.A.C. 161 (C.A.), refd to. [para. 112].

R. v. Zhang (K.T.F.) (2002), 310 A.R. 67 (Prov. Ct.), refd to. [para. 116].

R. v. Barry (J.A.), [2000] B.C.T.C. 299 (S.C.), refd to. [para. 116].

R. v. Pilotte (L.H.) (2002), 156 O.A.C. 1 (C.A.), folld. [para. 117].

R. v. Mentuck (C.G.) (2001), 277 N.R. 160; 163 Man.R.(2d) 1; 269 W.A.C. 1 (S.C.C.), refd to. [para. 124].

Kelly v. Canada, [1994] F.C.J. No. 832 (T.D.), refd to. [para. 130].

R. v. Garofoli et al., [1990] 2 S.C.R. 1421; 116 N.R. 241; 43 O.A.C. 1; 36 Q.A.C. 161; 60 C.C.C.(3d) 161, refd to. [para. 130].

R. v. Thomas (W.) and Morris (R.) (1998), 59 O.T.C. 81; 124 C.C.C.(3d) 178 (Gen. Div.), refd to. [para. 130].

R. v. Snider (1954), 109 C.C.C. 193 (S.C.C.), refd to. [para. 137].

Authors and Works Noticed:

Martin Committee Report - see Ontario, Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions.

McWilliams, Peter K., Canadian Criminal Evidence (3rd Ed. 1988) vol. 2, p. 35-136 [para. 107].

Ontario, Attorney General, Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Martin Committee Report) (1993), generally [para. 97].

Wigmore, John Henry, Evidence in Trials at Common Law (McNaughton Rev. 1961), vol. 8, generally [para. 47].

Counsel:

Larry Ross, Marrion Bryant, Marvin Bloos, Larry Fleming, Naeem Rauf, Kevin Moore, Richard Cairns, Ravi Prithipaul, Jake Chadi, Scott Pittman, Paul Moreau, Hersh Wolch, D.H. Abbey, Tom Engel, Scott Park, Keith Groves, David Scorgie, Murray Stone, Paul Solotki, Rick Stroppel, Marshall Hopkins, Mac Walker, Steve Fix, Alicia Wendel, Howard Poon, Bob Hrycan, David Paull, G. Turcin, Angus Boyd, Clayton Rice, Wendy Bouwman and Greg Worobec, for the applicants;

D. Hrabcak and R.W. Short, for the respondent.

This application was heard on March 4 to 7 and 14, 2002, by Sulyma, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following decision on March 15, 2002.