KENNEDY v SWIENTACH, 2022 ABCA 161
PENTELECHUK, ANTONIO, AND HO JJA
5.13: Obtaining records from others
5.6: Form and contents of affidavit of records
The Applicant sought an order directing the Respondent to produce records that were created during the Respondent’s participation in the Alternative Measures Program. The Respondent had participated in the Alternative Measures Program to resolve criminal proceedings arising from a road rage incident involving the Applicant. The Alternative Measures Program is a statutorily-created program outlined in sections 717 to 717.4 of the Criminal Code. The Chambers Judge ordered the production of the Calgary Police Service records, but excluded any records created in relation to the Alternative Measures Program. The Applicant appealed.
The Court of Appeal dismissed the Appeal. First, the Court of Appeal found that section 717(3) prohibits the admissibility of any records containing an admission, confession or statement accepting responsibility in a civil or criminal proceeding. Second, the Court of Appeal found that the records created in the Alternative Measures Program are not records that were within the Respondent’s control. Rule 5.6(1) obligates a party to disclosure records (1) that are relevant and material to the issues in the action, and (2) that are or have been under the party’s control. The Respondent did not have control over the Alternative Measures Program records because he had neither an absolute nor an exclusive right to those documents. Finally, the Court found that the Applicant could have sought the Alternative Measures Program records through an application for third party records under Rule 5.13, which would have allowed the Chambers Judge to fully consider the release of the documents, including the requirements of section 717.4 of the Criminal Code. However, the Applicant did not name the police service, Attorney General, or other departments of the Government of Canada as respondents in an application to produce records.View CanLII Details